§ 7.3 p.m.
§ The Parliamentary Under-Secretary of State, Department of Employment (Lord Strathclyde): rose to move, That the draft code laid before the House on 9th October 1989 be approved [6th Report from the Joint Committee].
The noble Lord said: My Lords, this code of practice would be issued under Section 3 of the 1980 Employment Act, as amended by the 1988 Employment Act. This gives the Secretary of State power to,
issue Codes of Practice containing such practical guidance … for the purpose of … promoting … desirable practices in relation to the conduct by trade unions of ballots and elections".
§ The Government believe that union members are entitled to be given the opportunity to indicate whether they are prepared to take part in industrial action before their union proceeds to organise it. We also believe—and this is an equally important principle —that proper standards of democratic conduct should be applied to that balloting process. Section 3(8) of the 1980 Act sets out the legal status of a code once it has been approved. It provides that the code will be admissible in evidence in all relevant court proceedings.
§ No one is or will be able to bring legal proceedings against a union or anyone else solely on the basis that it has failed to observe any provision in such a code. This code would not, and indeed could not, add a single ground for legal action to what the law already contains. I emphasise this point to make clear the distinction between this sort of statutory code which describes and recommends good practice —and the relevant primary legislation which imposes what can properly be called requirements. This code does not and could not change primary legislation.
§ The Secretary of State published a draft code for consultation in November 1988. The code has been modified and presented for approval in its present form in the light of representations made during the consultation period. It is now considerably shorter—only 56 paragraphs, plus one annex, as opposed to 103 paragraphs, plus four 472 annexes—despite the fact that it contains some new material. The passages on blue background are restatements of the relevant provisions of primary legislation.
§ The draft code, if approved, will be a valuable source of reference for unions, union members and others. Taking account of its recommendations will help to improve the conduct of ballots, and that can only continue the improvement to this country's industrial relations that was such a prominent feature of the last decade. I beg to move.
§ Moved, That the draft code laid before the House on 9th October 1989 be approved [6th Report from the Joint Committee]. —(Lord Strathclyde.)
§ Baroness Turner of Camden
My Lords, I suppose I should be grateful that the code we are now discussing is an improvement on the first draft. For once in a while the Government appear to have taken some measure of the criticisms levelled at their first draft not only by the TUC but by the CBI and others directly concerned with industrial relations. However, I really cannot welcome even this draft since it is based on and derives from legislation that I believe to be basically unfair and one-sided.
The first thing that strikes one on reading through this code is just how one-sided it all is. It is based on this Government's perception of industrial relations, which is that employees are expected to do as they are told and be grateful for having employment. If there are grievances, too bad. In a free market economy they can always move on.
No one with real experience of working life can possibly share this view. It is not in accord with the views of those, apart from unions, concerned with industrial relations, nor is it in accord with the perceptions of our partners in the EC, as the social charter shows, and we shall have the opportunity of debating this in this House in the near future. The code before us is one-sided because, although the title refers to,Trade Union Ballots on Industrial Action",in fact employers have a direct involvement throughout the code.
A few examples of this will suffice. In the introduction, paragraph 1, Section A, there is a reference to the need to exhaust procedures, either formal or informal. But employers are involved in procedures too. They are the signatories on the other side of whatever agreement exists. What if the employer takes a unilateral action in breach of procedure? Suppose he tears up a recognition agreement, and it does happen. The code is silent on that.
There is a reference in the next section to the need to involve ACAS. It is significant that there is no suggestion of arbitration. After all, the Government do not believe in arbitration. Their previous legislation substantially diminished the role of a central arbitration committee, and they have steadfastly refused to go to arbitration themselves, as their attitude to the ambulance dispute shows.
Then in paragraphs 20 and 21 we see that workplace balloting is still to be permitted, although 473 postal balloting is the preferred option. Many unions prefer workplace balloting for the simple reason that more people are likely to participate in that way, provided of course that the employer will provide facilities. But although there is a recommendation that facilities be provided, there is no obligation to do so and the code is careful to emphasise that time off from work or payment for time off need not be provided by employers. Yet industrial relations are a two-way process. In any reasonable, even-handed system the employer would be as bound to provide facilities for employees as the union is bound now to ballot under present legislation.
Then there is the matter of external, independent scrutineers. Again this adds to trouble and expense for the union, although there is little evidence that unions generally have been in the habit of adopting fraudulent practices or fixing votes. Indeed I must say, as a former official, that it is not in the interests of the union to do so. The union, if it is involved in a dispute, wants to run it with as few problems as possible and with as much membership support as possible. If that support is not there the official can find himself or herself in the unenviable position of having the dispute crumble away beneath the leadership. No one in the union wants that to happen, so it is in the union's interest to ensure that the arrangements are fair in the first place.
Then of course there are the points which must be put to members when dispute action is contemplated. Obviously those in the code are in line with the present law, but the emphasis throughout the code is on the need to tell employees that they may risk breaking contracts of employment, that they must be told the consequences of a dispute, that the union must set out the potential consequences for employers and so on. All these are designed as "frighteners" to members, and of course it does not have to be so.
During previous debates in this House I and my noble friends have constantly pointed out that the contract of employment does not have to be terminated: it could be suspended. That is what happens in many European countries, where the right to withdraw labour collectively has stronger guarantees than in the United Kingdom, where we rely upon a constantly eroding system of trade union immunities.
Then we have paragraph 53, which suggests that a union, even after receiving a majority vote in a ballot, should consider all options other than authorising or endorsing industrial action as a means of resolving the dispute. It is fair to say that the union will have done this already before authorising a ballot. I have known disputes not to be proceeded with at the last moment because there has been a fresh development or a possible new offer. However, this is not in the hands of the union but in the hands of the employers. Why not give some advice to employers under this heading? I have known disputes occurring in the past —and there have been some recent ones falling within this category —which have occurred because of management incompetence and failure to communicate, or else because of a provocative stance adopted in 474 negotiations. If this Government are really intent upon minimising disputes they really have to look at both sides of industry.
Then there is the provision in legislation, and referred to in paragraph 54, that the union has four weeks from the date of the ballot in which to induce industrial action. But, as we have seen in the dockwork dispute, the union does not always have 28 days. In that dispute the period disappeared altogether because of employer-initiated action in the courts, which, incidentally, the employers eventually lost.
The Private Member's Bill introduced by the noble Lord, Lord Campbell of Alloway, attempts to deal with this injustice and the Government really ought to reconsider their attitude to it. As it stands, the union may very well find itself without four weeks and might well have to ballot the membership again —a membership which by then has become frustrated not only with the employers but even perhaps with the union as well.
Then there is the section dealing with trade union liabilities. Again the one-sided approach is apparent. Individuals, it is said, may have grounds for proceeding against a union's trusteees if they have caused or permitted the unlawful application of union funds or property. The Commissioner for the Rights of Trade Union Members may assist a member of a union in connection with such proceedings. I may say that the commissioner appears to have had very little to do since that office was established, nor have the cases she has supported always succeeded. The Government seem quite unwilling to accept that malpractice within unions in this country is very rare indeed. Such cases as have occurred have had very wide publicity, and the individuals involved have usually been dealt with very severely by their own unions.
The Government seem quite unwilling to appreciate that we have in this country a serious, high-minded and extremely responsible trade union movement, led by people who would much rather see negotiated settlements and an orderly system of resolving disputes than strikes and disruption. However, the Government persist in believing that all the problems come from one side. They attribute a decline in the number of disputes at grass roots level to their legislation rather than to the fact of widespread unemployment in manufacturing industry, which is where unions have traditionally been strongest.
No one would think, to listen to Ministers and to read this code, that employers ever acted unreasonably, ever sacked people unfairly, ever broke procedures or attempted to introduce systems of payment perceived to be unfair. Nor does it ever, so far as I am aware, criticise employers for failing to consult their workforce: yet lack of consultation is very widespread.
Since the Government do not believe in arbitration and are clearly set upon making official industrial disputes more and more difficult to organise within the law, one is entitled to ask: what is the Government's attitude to employee grievances? Do they think that employees should 475 simply put up with what they regard as unacceptable levels of pay and conditions? If that is so, it does not say very much for the Government's so-called attachment to human rights.
This is an unpleasant and unfair code, based on unjust, unfair and one-sided legislation. It is not, I understand, the tradition in this House to oppose codes already accepted in the other place, and for that reason I do not oppose this one, despite all the objections to which I have given voice tonight.
§ 7.15 p.m.
§ Lord Rochester
My Lords, before I say anything else, may I apologise to the House and to the noble Lord, Lord Strathclyde, in particular if I have to leave before he has replied to our discussion? In mitigation, I can only say that this is the second Thursday in succession that we are debating during the dinner break an industrial relations matter, and this time at very short notice. I have to catch a train home tonight so as to be in Cheshire tomorrow morning.
I should like to thank the Minister for the clear way in which he has introduced the revised draft of this code of practice. I accept in principle the desirability of having a code on ballots concerning industrial action, and I consider this draft to be a welcome improvement on the one which was so roundly criticised a year ago, not only in this House but by practically every reputable employers' organisation in the land.
As the noble Baroness, Lady Turner, has already said, the Government have clearly taken to heart these criticisms. A major defect in the earlier draft was that it was so much more prescriptive than the law and so burdensome to trade unions that without drastic amendment it might well have had the disastrous effect of discouraging the unions from making use of lawful ballots altogether. I am glad that in the revised document there is now a much clearer separation of the law's requirements from the practice that is recommended.
Even now, however, I think that a better balance could have been struck as between employers and trade unions. The noble Baroness has already made this point in relation to the need for employers as well as unions to observe negotiating procedures, and indeed other matters. About the only advice to employers that I could find is in the footnote on page 9, where it is said that employers might consider that it would accord with good industrial relations practice to make premises available for the holding of workplace ballots.
I am relieved to find that some of the more flagrant attempts in the earlier draft to weight the scales against trade unions have now been abandoned. I have in mind, for example, the suggestion that a majority in favour of industrial action of at least 70 per cent. of those voting in a ballot, rather than a simple majority, would constitute good practice.
Welcome improvements have also been made in the examples of acceptable voting papers, particularly that in accordance with normal speech and practice the Yes box should take precedence over the No box.
476 There is one drafting point to which I should like to draw attention. In Section E, on the procedures to be followed in the counting of votes following a ballot, it is stated in paragraph 47 that,The union should consider and apply the following procedures".Surely the passage should read either that the union should consider applying the procedures —I hope that the Minister will be able to confirm that that is the intention —or that it, in fact, should apply them. If that is the case, the words "consider and" are redundant.
I noted that Clause 10 of the Employment Bill, which received its Second Reading in another place last Monday, makes provision for codes of practice to be revised so as to bring them into conformity with statutory provisions coming into force after they have been issued. As we are required tonight either to accept or to reject the code as it stands, I hope that, if and when it is revised, the opportunity will be taken to remedy apparent defects such as the one I have just mentioned.
I do not wish to speak at any greater length on the matter. In conclusion I shall simply say that, subject to the qualifications to which I referred, we on these Benches are content to accept the revised draft of this code of practice.
§ Lord McCarthy
My Lords, in a slightly more crowded Chamber yesterday the Minister was likened to Professor Pangloss because of his determination to ensure that the Government's training and education policies go forward. He said that he saw them as the best and all for the best in the best of all possible worlds. However, tonight it seemed to me that he looked more like despondent Billy Bunter gazing down at a half empty tuck box. I must say to him that we regard this matter as not so much a tuck box as a poisoned chalice.
As previous speakers have said, it is perfectly true that this code is a great improvement upon the previous one. Indeed, it must be because it is less than half as long. As the Minister said, it has 16 pages and 56 paragraphs as against 53 pages and 103 paragraphs. Moreover, it has even shrunk in size. Indeed, if we could have had a third or fourth draft if might even have disappeared altogether. It is also better because the confusion of law and opinion which was so criticised, as previous speakers have mentioned, has been removed. The law is in Cambridge blue and the opinion is in black and white.
Of course, as the Minister said, the code is shorter despite the fact that new material has been added. They were able to add the new material and still make the document smaller because, we are glad to say, much of the silliest opinion has been cut out. In fact, it was very difficult for anyone to believe that the material which has been removed was written by civil servants at the Department of Employment. There was an apocryphal story that it was dictated by Mr. Fowler while he was in a trance. I do not know whether that is true, but it is certainly a very good thing that, along with Sir Norman, it has gone and that no longer will this code of practice tell us 477 that the trade unions should not have a ballot if it will be bad for industrial relations. We were told in paragraph 42 that it was bad for industrial relations if the workers were likely to vote for a strike.
We are no longer told that you should first ask the employer whether he thinks a ballot is a good idea —that was paragraph 16. It is now no longer necessary to find room on the ballot paper for a statement of the employer's case. That was surely the most ridiculous proposal ever to come from anyone with a responsibility for industrial relations. Moreover, nowhere does it say that if you receive a majority for a strike now —and, this proposal was severely criticised by the CBI, the TUC, IPM and other organisations —you must return to square one or you return to goal and raise the ante and you ask for a more substantial majority and a 70 per cent. turnout. That provision —thank goodness! —has been removed.
All those matters have been removed because of the criticism which was aimed at this code of practice, not merely, I am bound to say, because of a perceptive study published by the Institute of Employment Rights, but also because of the denunciation of unfairness and counter-productiveness made by the CBI, the IPM, the EEF and ACAS. That was an amazing indictment of government policy by the ACAS council, which is a bipartite, two-sided council.
When the code of practice was first introduced the Government received their worst press since the Westland crisis. Nevertheless, if we read the tiny document there is still much which remains objectionable, much which is unjustified, much which is ignorant and much which one can only charitably assume was written by a Minister in a trance. We still have the random paragraph 20 proposal that there should be a presumption that postal ballots are to be preferred to workplace ballots. No reasons are given, because, of course, there are none. Indeed, the only reasons that exist are against it because, on the whole, the response to postal ballots is larger than the response to workplace ballots.
The code of practice still spells out that the ballot form must state the possible effects of going on strike. In paragraph 34 the union still has to tell the members all the possible consequences of strike action, including an estimate of the chances that the employer might victimise them by sacking them. Under paragraph 33 the union is still obliged to give an unbiased picture of the background of the ballot and why it is required.
However, it is still unclear how far the executive —and, this is a point of some substance —of the union is allowed in the course of a ballot to campaign for a "yes" vote. The whole direction of the code of practice is that you cannot do that in the same envelope; you must do it separately on posters, with postcards or in some other way. Moreover, if the executive dares to say in the ballot form why it thinks the members should vote in favour of a strike —of course, it would be all right if it is suggested that members should vote 478 against it —then that will be contrary to the code of practice in some way and may even be contrary to the law.
The nonsense about the independent scrutineers who have to be present at each voting point still remains, together with the nonsense as regards the double envelopes and the universally available postal votes —that is, all those matters which the Government never insist upon in the Representation of the People Act. If all those stipulations had been applied to the vote in Finchley, the Prime Minister would have been declared unlawfully elected. All those requirements are there for trade unions alone.
Therefore it is not much better. Above all, we are still asked to consider every conceivable factor before strike action. Examples are the consequences of the members getting sacked, any last-minute offer by the employer and whether the size of the vote is sufficient to warrant a strike. However, a fundamental difference in the code of practice is in the approach in paragraph 56 as regards what a union does —and this really does give the Government's bias away —when it is thinking about calling off a strike. All those measures must be carried out if a union is thinking of calling a strike. However, the draft code of practice makes it clear that if a union is thinking of calling off a strike it should remember that there is no statutory obligation to consult the members before doing so. In other words, no problem of democracy arises. According to the code, it is only if the union are thinking of continuing the struggle that a further ballot should perhaps be carried out.
Therefore, the Government want ballots if they will discourage strikes. However, if you can call off strikes or avoid having strikes by not having ballots, they are not concerned about ballots at all. The code is not in favour of ballots. It is essentially a quietist, pro-employer document. The clear inference that anyone reading the document would draw is that if you are a trade union leader or member then you had better not start the miserable business in the first place. The reasons for that are clear enough. As the Minister said, they are clearly set out in paragraph 7 of the code, which reads:Failure to observe it does not by itself render anyone liable to proceedings".But it continues:any provisions of the Code are to be admissible in evidence and are to be taken into account in proceedings before any court where it considers them relevant".In other words, the aim of this code is the aim of the picketing code —to extend the area of legal regulation. In that way matters in this code can become part of the law, even though they have no legislative support, like the estimate of six as a maximum in the case of the picketing code.
All these matters might make courts consider that perhaps higher standards are required in workplace ballots and that it is reprehensible and may even be unlawful if there are no double envelopes. Those matters frequently stated in legislation to be reasonably practical —which means what is lawful, because what is reasonably practical and is not done is unlawful —could be taken to fit in with the 479 prejudices and preferences of the Government as specified in the code.
In other words, the basic aim of the improved code remains the same: to confuse and to intimidate. Therefore although it is less extensive, less ridiculous and less biased, it is just as ignorant. It is the same pile of old rope and we oppose it.
§ 7.30 p.m.
§ Lord Strathclyde
My Lords, the noble Baroness, Lady Turner, surprised me. She started by essentially welcoming the fact that the Government had consulted and that we had made considerable changes in our code of practice. She then went on to say that it was all a waste of time, that there was absolutely nothing good in the code of practice and that we should bin the whole thing and probably not even bother starting again. The noble Baroness said that we had been one-sided. But the draft code concerns ballots by unions of their own members, asking whether those members are willing to take part in, or to continue with, industrial action which their union may authorise or endorse. That is the subject of the draft code.
§ Baroness Turner of Camden
My Lords, will the Minister allow me to intervene? Can he say whether the Government would consider producing a code for employers concerning good industrial relations practice?
§ Lord Strathclyde
My Lords, I shall answer that in a moment. Proper ballots can give a union protection against legal proceedings that could otherwise be brought against it. Such ballots relate to industrial action: it is up to a union to decide to organise it. The law does not oblige a union to consider calling on its members to take industrial action. The law places requirements on employers to allow the use of premises for certain ballots in certain circumstances. The code refers to these obligations. To do more would distort the fundamental purposes of the code.
The noble Baroness talked about the TGWU last summer. We have discussed that at considerable length in other debates. I must remind the noble Baroness that the circumstances of that dispute and those proceedings had some unique features, not least the relationship to the outmoded statutory dock labour scheme. The issues considered by the courts did not relate to the conduct of the ballot but whether there could be immunity for organising particular industrial action. A union cannot and should not be able to put itself above the law simply by holding a ballot of its members.
The noble Baroness brought into her defence, practice on the Continent. I was quite surprised at that. I cannot believe that with the traditions of industrial relations that have been built up in this country over many years the noble Baroness seriously thinks that we should bring over some of the practices that are prevalent on the Continent. That is a subject we shall enjoy discussing when we reach the debate on the social charter in a few weeks' time.
480 The noble Baroness also stated that trade unions were reasonable or were led by reasonable men. That may well be so; we also know that the history of the last two decades shows that that has not always been the case. There is a good argument for saying that the reforms —and they are reforms —brought in over the past 10 years have done more to help industrial relations than anything else.
I turn to the point about employers. It is directly in the interests of employers to treat people, employees, as valuable assets; to treat them as fairly and equitably as possible. That is backed by legislation. We have sex discrimination legislation and equal pay legislation. We have industrial tribunals and health and safety regulations. That is what is important in protecting individual employees.
I am glad that the noble Lord, Lord Rochester, is still here. I hope we shall not delay him too long so that he misses his train. I welcome his acceptance of the code of practice. I know that his party believes in these approaches to industrial relations, as we do. The noble Lord mentioned some drafting points. He said that we should look at paragraph 47 of the code and that the unions should consider and apply those words. So far as I can see, the unions should consider all the recommendations and apply them as appropriate. In some cases there may be a need to adapt them to circumstances. The requirements for postal ballots, for instance, are not the same as for workplace ballots. Obviously, a code like this, over the years, may become outdated. Changes may be required. We shall keep an eye on it and correct any defects as they arise.
I am sorry that the noble Lord, Lord McCarthy, missed the end of the debate yesterday. I think that he would have enjoyed it. However, I am sure that he had a better dinner in Oxford. The noble Lord described my opening speech as "Billy Bunter-esque". All I can say about that is that it says more about the kind of literature that the noble Lord reads.
The noble Lord, Lord McCarthy, is unhappy. He is always unhappy when he comes to talk about industrial relations. However much we consult and make changes, however much we read his pamphlets written in the past, however much the officials in the Department of Employment try to accommodate him, the noble Lord is still unhappy. Today I can see quite clearly why: he and his party are isolated. The noble Lord, Lord Rochester, said that he welcomed the code. We obviously welcome it, the employers welcome it; but the noble Lord is still unhappy. That is because fundamentally he is more interested in trade unions while we are interested in trade union members. I think that I have dealt with all the points. I hope that the House—
§ Lord McCarthy
My Lords, perhaps I may intervene. The noble Lord says that I am unhappy. I can assure him that if he took the code away and burned it I should be very happy.
§ Lord Strathclyde
My Lords, that is precisely because the noble Lord is not interested in the rights of trade union members or of democracy when it 481 comes to dealing with trade union ballots. I commend the order to your Lordships.
§ On Question, Motion agreed to.