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Mr. Sutcliffe: There were in fact three cases: London Underground Ltd. v. RMT, Midland
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Mainline Ltd. v. RMT and Westminster city council v. Unison. Those cases raised issues that reflect why we are in this position. In the case of Midland Mainline v. RMT, the union sent out notices stating that all RMT members employed in the grades of operational train crews were involved, when in fact only some of the members in those grades were balloted. It was clearly about the reasonableness of the information provided.
We are trying to clarify the meaning of section 227 of the Trade Union and Labour Relations (Consolidation) Act 1992. Section 227 defines those individuals to whom the union must accord an entitlement to vote in an industrial action ballot. It requires the union to ballot those members
''who it is reasonable at the time of the ballot for the union to believe will be induced to take part . . . in the industrial action in question.''
The phrase ''will be induced'' is unclear. That was brought to light in the case of Midland Mainline v. RMT. In its judgment, the Court of Appeal stated that the phrase related to any union member who might take part in the action even though they had not been induced to do so by the union. In other words, the union had to predict how members whom it had no intention of inducing to take industrial action might act if there were a strike, and had to ballot them if it had reason to believe that calling the action could prompt them to take part. It is difficult, if not impossible, for unions accurately to forecast the reactions of the members whom it does not induce.
This clause makes it clear that the entitlement to vote applies to those who are likely to be induced ''by the union'', which was the accepted interpretation of section 227 before the judgment in Midland Mainline v. RMT. The clause removes ambiguity from section 227, and improves the way that the law reads. It does that by ensuring that the requirement placed on the union is reasonable.
I move now to the point made by the hon. Member for Huntingdon about the definitions of small and major lapses. If there were an issue outside the clearly defined rules that the clause introduces, it would be up to the courts to decide the gravity of the position. In light of the three relevant cases, we think that minor infringements need to be considered. That is the basis of the reasonableness of the clause. If there were an extensive breach, the employer would have the right to appeal to the courts.
Mr. Djanogly: I understand what the Minister says, but I want to come at this from a slightly different angle. The clause also deals with the union inducing non-balloted people to strike. Should not the legislation provide for the number of people who have not been balloted but who could then be induced? It all seems pretty woolly.
Mr. Sutcliffe: It is not intended to be woolly. It should be taken in context with the pattern of the Bill and the relations that exist. We are clearly defining what information the union must give to the employer about categories of workers, but we do not want the union to get into a situation in which it must predict what might happen.
Jon Cruddas (Dagenham) (Lab): Is not it quite simple? The union should ballot those whom it seeks
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to induce to breach their contracts of employment. It should not ballot those whom it does not seek to induce, or those whom, by consequence, are not induced by the union, which has tortious liability in law for inducing breach of a contract of employment. Is not it as simple as that? This is an exercise to ensure that certain ambiguities are clarified.
Mr. Sutcliffe: I am grateful to my hon. Friend. He has explained the situation clearly and more eloquently than I seem able to explain it this morning. He has outlined the reason why the clause should stand part of the Bill.
Question put and agreed to.
Clause 18 ordered to stand part of the Bill.
Clause 19 ordered to stand part of the Bill.
Clause 20
Information about employees to be contained
in notice of industrial action
Question proposed, That the clause stand part of the Bill.
Mr. Djanogly: I seek clarification on this clause. The amendments proposed by the Opposition have not been selected for debate. That is probably because their content has been covered previously. I accept that, but I want to know whether the issues that we debated when we discussed the ballot notice in clause 17(3) are the same as those which apply to the industrial action notice, namely, in relation to the points made by my hon. Friend the Member for North-West Norfolk about the branch employee and about inducement. I hope that I have made myself clear.
10 am
Mr. Sutcliffe: I do not need to respond in great detail. We have set out clearly the reasoning behind the clause, and how it relates to earlier clauses. We aim to simplify the procedure for establishing which information is required and to ensure that it is reasonable, while not putting an undue administrative burden on the unions or inciting anyone to worsen the relationship between the union and the employer in a situation that is already difficult because it involves industrial dispute. The clause is entirely sensible and is in line with the sentiments of the Bill.
Question put and agreed to.
Clause 20 ordered to stand part of the Bill.
Clause 21
Dismissal where employees taking protected industrial action locked out
Question proposed, That the clause stand part of the Bill.
Mr. Bellingham: The essence of the clause is the case of Davis v Friction Dynamics. The clause introduces an additional element to the protections for striking employees that appear in section 238A of the 1992 Act by changing the scope of the eight-week period currently specified by providing for locked-out days
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to be disregarded when determining the length of the period. We have looked at the clause in detail, and the Minister's Department has had to respond to the Friction Dynamics case. It has given a watertight response—a lot of work obviously went into it—and I congratulate the Department on drafting a form of words that meets the need. I hope that it will stand the test of time if it is again used in court.
Albert Owen (Ynys Môn) (Lab): I, too, want to concentrate on the Friction Dynamics case, which involved the locking-out of employees taking protected industrial action. I welcome the clause as a positive step towards the prevention of a repeat of such injustice. The incident occurred in the constituency of the hon. Member for Caernarfon (Hywel Williams), but it affected my constituents, many of whom still work at Dynamex Friction, which now operates in that location. I pay tribute to the strikers and the union for taking the case the whole way, and I applaud the Government for listening to the arguments that were made by many Members of this House and by the TGWU.
I have concerns about the eight-week rule because anomalies in the 1992 Act were carried through into section 238 of the Employment Relations Act 1999. The eight-week rule is embedded in the provisions, but the protection falls subject to the employer who fails to take the procedural steps to solve the dispute. Friction Dynamics is cited as one case in which the eight-week rule failed. However, it is one case too many, and it has profound implications for industrial and trade union law.
The clause will give protection in future action because it addresses the issue of the lock-out period. I remind the Committee that, in April 2001, Dynamex Friction—the same company in all but name—sacked 86 official strikers who had returned to work after one week and found themselves locked out. They were given an ultimatum. The tribunal in October 2002 found that the company had no desire to settle the dispute within the procedures of the Act; it made no attempt to resolve the dispute by following the eight-week rule. The workers were unfairly dismissed and temporary labour was used in their place. The company appealed, purely to extend the period of the strike. It went to the eleventh hour and then pulled the appeal, knowing that it was falling foul of the law and owing £1.3 million in compensation to those workers in redundancy, holidays and arrears of pay. That company had received grants from the Welsh Development Agency. I know that that is not the issue with regard to the Bill, but it is important to put it on the record.
The clause extends beyond the basic 56 days the protected period during which official strikers are locked out. In theory, the new extended protected period—including the initial period of eight weeks, plus the period where they are locked out—relates to an indefinite strike period, such as in the case of Friction Dynamics. Good, genuine employers are not worried about eight weeks; if they really want to settle a dispute, they can settle a dispute. Only rogue employers such as Friction Dynamics have to worry
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about time factors, and the company pushed it to the limit.
This measure will help and is a positive step. However, what direct action would be taken against an employer if it were to employ temporary labour during the lockout period? I understand the theory and provision of the Bill, but I believe, in the light of the Friction Dynamics dispute, that this hurdle may be a little too low. I ask my hon. Friend the Minister to respond by saying not only what action would be taken against the temporary labourers, but what action would be taken to prevent a company from doing exactly what Friction Dynamics did; that is, go through the motions of a tribunal and appeal and then go into liquidation? Also, will the clause be monitored over the period to prevent a similar injustice to that of Friction Dynamics' workers, which, in the 21st century, is an absolute disgrace?
Hywel Williams (Caernarfon) (PC): As has already been said, this clause arises in part from the short strike and very long lock-out in my constituency at Friction Dynamics. The clause is a tribute to the way the union and the workers conducted themselves, and to the courage and the persistence that they have shown over this lock-out.
The circumstances of the strike will be known to many hon. Members, and I do not wish to rehearse them here, except to say that the TGWU engaged in a long period of negotiation with the American employer who took over four or five years ago. These negotiations, about worker conditions and pay, were deadlocked. The workers went on strike for one week only and then were locked out. After eight weeks, under the law as it is, they were sacked. They continued to picket for two years and nine months until just before Christmas, one of the longest disputes in British industrial history. As the hon. Member for Ynys Môn (Albert Owen) said, they won their industrial tribunal but they are still awaiting compensation.
The law allowed the employer to lock the workers out and then sack them. Clause 21 is a welcome partial remedy to the situation of lock-outs, but as and when procedures allow we will be able to return to what is, for me, the fundamental issue; the eight-week rule itself. Under clause 21, in a case such as Friction Dynamics where workers are locked out in week one, the protection would be extended to 15 weeks, and I thank the Minister for his letter to me confirming that after Second Reading. However, one of the weaknesses of this provision is that it will still be possible for the employer in such a case to sack the workers after the end of the 15-week extension period.
The vast majority of employers and unions will be very keen to settle industrial disputes well within the eight-week period without resorting to sackings, lock-outs and the unfortunate circumstances in Caernarfon, and I would want that to be normal in industrial relations. Those of us who sat through many weeks discussing the Employment Act 2002 will remember its intention. I welcome clause 21, but my reservation is that it does not address the eight-week rule in itself. I
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welcome the clause, but I cannot accept that a legal strike can be protected for 56 days, but that everything changes on the 57th day. I hope that the Government will reconsider in due course and look at the eight-week rule again.
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