Employment Relations Bill

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Mr. Sutcliffe: The responsibility for the literature lies with the people who provide it. If that were the union, it would be the union's responsibility. If the literature were found to be libellous, the CAC would take a view and deal with the situation during the procedure. The union involved would have to watch out; if the CAC said that the process had been faulty, the union would be prevented for three years from

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trying to apply for recognition again. It will need to be careful all the way through not to jeopardise the procedure.

2.45 pm

As we discussed earlier, the CAC is a strong body in terms of how it safeguards its information and its responsibilities, as is the qualified independent person. If information flows that the employer sees as libellous, of course, they would have the right of reply. Few employers would not take up the opportunity to reply quickly to what they saw and to use it as a mechanism against the union in their dealings with the work force.

If a union does not go through the process properly, it will be prevented from applying again for three years. That is a strong sanction. I think that we have covered the issue and I ask the hon. Member for North-West Norfolk to withdraw the amendment.

Mr. Henry Bellingham (North-West Norfolk) (Con): Mr Forth, I apologise for my slight misdemeanour a moment ago. I can see that you are going to put the stamp of firm authority on this Committee early on, and I will not transgress again.

The Minister has obviously made a number of interesting suggestions, and has given us some grounds for comfort. In the light of what he has said, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Mr. Bellingham: I have one particular concern. I should like to refer the Minister to proposed new paragraph 19C(5) to schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992, which says:

''The initial period is the period starting with the day on which the CAC informs the parties under sub-paragraph (7)(b) and ending with the first day on which any of the following occurs''.

Proposed new paragraph 19C(5)(d) says:

''the CAC informs the union (or unions) under paragraph 25(9) of the name of the person appointed to conduct the ballot.''

The union's right of communication continues throughout the period of the ballot by virtue of existing provisions in the schedule, so is not proposed new paragraph 19C(5)(d) superfluous? In the interests of trying to tighten up and sharpen up legislation, which I am sure, Mr Forth, is something that you would sympathise with and condone, surely we should take out anything that is not strictly necessary. Will the Minister please comment on that?

Mr. Sutcliffe: The hon. Member may be right as regards the proposed new paragraph. There may be some truth in what he is saying. I will take it away and look at it.

Mr. Bellingham: I am grateful.

Mr. Djanogly: I thought that it was important to speak in this stand part debate because, unlike most of the other clauses, which build on existing legislation, clause 5 is new. There is a new right for unions to

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communicate with workers after acceptance by the CAC of an application, but before the ballot process. My initial reaction on reading the clause was, ''Why is it needed? Let us table an amendment to strike it out.'' The Minister will notice that we did not table such an amendment, but we have not yet covered why the clause is necessary. It would be helpful if the Minister explained some of the background to that and said which representations led him to think that it should be included.

Jon Cruddas: I just want to flesh out a couple of points that the Minister has made and raise a couple of points on which I seek a bit of clarity. The balloting period is relatively short but the recognition procedure can be quite protracted. That is the product of the agreements that were reached during work on the ''Fairness At Work'' White Paper, which were consolidated in the Bill.

The current code of access concerns the statutory 20-day period of the recognition procedure. However, the Minister talked about the possibility of a code of practice for the recognition procedure, addressing intimidation on the part of the union or the employer, covering access in excess of the 20-day period of the statutory recognition ballot.

As I understand it, the clause proposes access for the union only in terms of direct communication with the union members; it does not cover issues of access beyond that formal direct communication. Can the Minister clarify what he anticipates in terms of a new code of practice—covering, one would hope, the whole recognition procedure rather than the 20 days in the current code—and what that would mean in respect of addressing intimidation short of dismissal?

The hon. Member for Huntingdon mentioned remedies that were available in terms of unfair dismissal, but this covers issues of which the Department is aware, thanks to the submissions that were made to it during the review of the legislation, such as action that is short of a dismissal but which intimidates prospective union members as well as current union members, who might support a vote for the union in a recognition ballot. That covers a range of activities short of dismissal—visits to the homes of employees, activities outside the gate and the like; there is a range of possible intimidatory tactics. Does the Minister anticipate that the revised code, or discussions around it, will cover a period that exceeds the 20-day period of the formal statutory recognition ballot?

Mr. Sutcliffe: I am considering the situation on the basis of the evidence—not only the 20 days, but the whole process. It is difficult to find the right solution. We are considering the matter and will come back to the Committee at an appropriate time. My hon. Friend is right to differentiate between the balloting period and the period of recognition.

The reason behind the clause is to create a balance. The basis of the debates has been that the statutory recognition procedure should work well. We have had evidence of that from the extensive consultation that has taken place with a variety of organisations. We

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listened to the union argument that the employer had the right to speak to his or her employees at will, and that those within the work force who did not want to join the union had their opportunity. There was a need for the union to be involved at an earlier stage, and for that to be done independently through the CAC and qualified independent people.

Mr. Djanogly: There is a fundamental difference. The employee has contracted to work and provide services for the company, and might join the union. However, the employees who have not joined the union have no relationship with it. How can we, therefore, give the company and the union parity in terms of approach?

Mr. Sutcliffe: The union will have had to recruit members and must be in a position to explain to the CAC that it has reached the cut-off point for the number of members recruited. It will have tried the voluntary route, and that will not have worked. It will then have gone on to the statutory procedure. Surely it is important, in a democracy, that people should get the maximum amount of information that is available from all parties concerned, so that they can make a balanced judgment about what they want.

We took cognisance of the force of the arguments put to us by unions, and the clause provides the arrangements for access. This is about modern industrial relations. The system is working well and we do not want to see intimidation on either side. There is no extra cost to the employer because the union covers the cost of the communications that go to the CAC through the independent person. It is right and fair that we strike a balance. I know that Opposition Members do not accept that for reasons that have been explained in the debate. I believe that this is the right way forward.

Question put and agreed to.

Clause 5 ordered to stand part of the Bill.

Clause 6

Power of the CAC to extend notification period

Question proposed, That the clause stand part of the Bill.

Mr. Bellingham: We have not tabled any amendments to the clause, which seems to be fairly straightforward. There is one point on which I would like the Minister to elaborate. The clause gives the CAC power to extend the notification period, amends paragraph 24 of schedule A1 and applies where the CAC gives notice under paragraph 22(3) or paragraph 23(2) that it intends to arrange for the holding of a secret ballot. Can the Minister give us some more details about that?

Mr. Sutcliffe: I am happy to do that and thank the hon. Gentleman for making the point. The statutory procedure was designed to encourage voluntary deals

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wherever possible and to act as a fallback where the parties cannot reach agreement. That has worked well with over 700 voluntary agreements since the legislation came into force. If the CAC decides to hold a recognition ballot, there are 10 working days for the parties to inform the CAC that they do not wish the ballot to go ahead. That gives the parties time to consider whether they want to go to the expense of holding a ballot. They may choose to withdraw, often because they have been able to reach a voluntary agreement.

Unlike most time periods in the process, the 10-day period cannot currently be extended by the CAC and the parties have no means of asking the CAC to delay the ballot for even a little while longer while they try to reach agreement. Of course, the parties could still call a halt to the ballot after the end of the period, but any agreement reached after that date would not qualify as an agreement for recognition under the schedule. That would mean that the three-year moratorium on the employer terminating the agreement did not apply. The parties would not be able to seek the assistance of the CAC in determining their bargaining method or addressing their failure to adhere to the agreed bargaining method. Where both sides agree, the clause, by extending the deadline, gives them an opportunity to reach a voluntary arrangement.

Question put and agreed to.

Clause 6 ordered to stand part of the Bill.

 

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Prepared 3 February 2004