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Mr. Jonathan Djanogly (Huntingdon) (Con): As this is a set of new provisions, I should be grateful for clarification on a few points from the Minister.
First, new section 145A extends the right of workers not to have an offer made to them by their employer where their employer's ''sole or main reason'' is to induce the worker
''to make use . . . of trade union services''.
I understand that this is a new provision. I should be grateful if the Minister explained what is encompassed by the reference to making use of union services and what led the Government to want to extend it for that purpose.
Secondly, I should like some clarification on proposed new section 145(E)(4)(a) and (b). The Minister will have to forgive me, but I have read the clause on a number of occasions and I still find it pretty unintelligible. I would be grateful if he could clarify what those paragraphs involve.
Thirdly, various hon. Members have referred to the European Court of Human Rights. The notes to the Bill set out the reasons as arising from the Wilson and Palmer case, where the court concluded that UK trade union law was incompatible with the European convention on human rights.
The explanatory notes also state:
''The Government believe that the principle underlying the decision of the Court extends beyond the facts in Wilson and Palmer''.
In his earlier remarks, the Minister referred to a consultation on that issue. I should be grateful if the Minister explained what the ''other comparable circumstances'' referred to in the notes were, and why he believed that the decision of the Court should be extended to them in those circumstances.
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Without going over the many and detailed arguments that we had this morning, I agree with my hon. Friend the Member for North-West Norfolk that the clause would not work in its current state. Its decisions on when inducement takes place will be too restrictive on employers and on employees. It will provide unwarranted and inflexible regulation on businesses; not least in terms of the fixed penalties, but also for the other reasons that we discussed. I shall be supporting my hon. Friend in voting against the clause.
Mr. Sutcliffe: I am grateful to the hon. Member for Gordon (Malcolm Bruce) for explaining his involvement in this issue and for going through the circumstances of the case with which he was involved. I am sure that that was at the time when adversarial issues were prominent in the then Government's attitude towards industrial relations. The context of today's debate has been the changing nature of what we are trying to achieve through the Bill and past Bills to bring partnership and people together.
I am loth to go in to the detail that the hon. Member for Huntingdon (Mr. Djanogly) wants, as he says that he will vote against the clause anyway. I do not see the purpose of going in to the issues he has raised in any great depth. He is clearly fundamentally opposed to the clause, and my explanation on all these—[Interruption.]—
Mr. Djanogly: Will the Minister give way?
Mr. Sutcliffe: I am not going to give way, because the Committee is making good progress and doing well. I tried to be helpful to the hon. Member, but it is very difficult when a Member says, ''Whatever you say, I am going to vote against the clause.'' We have had an excellent debate this morning, we can touch on some of the issues the hon. Gentleman referred to during the amendments that are coming up, and we will get the explanations during that period.
2.45 pm
Mr. Djanogly: I respectfully say to the Minister that that is an unacceptable answer to my valid questions. The fact that my hon. Friend stated quite clearly that we saw the clause as unacceptable in its current form does not mean that we will not look at the form in a different context, or that we will not want to review it between now and Third Reading. It is a live issue for us however we vote, as presumably the Minister and his friends will vote it through. I ask that he respond to my questions.
Question put, That the clause stand part of the Bill:—
The Committee divided: Ayes 9, Noes 2.
Division No. 2]
AYES
Atkins, Charlotte
Bruce, Malcolm
Cruddas, Jon
Foster, Mr. Michael Jabez
Lyons, Mr. John
Owen, Albert
Sheridan, Jim
Stewart, Ian
Sutcliffe, Mr. Gerry
NOES
Bellingham, Mr. Henry
Djanogly, Mr. Jonathan
Question accordingly agreed to.
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Clause 23 ordered to stand part of the Bill.
Clause 24
Extension of protection against detriment for union membership etc.
Question proposed, That the clause stand part of the Bill.
Mr. Bellingham: This clause relates to the extension of protection against detriment for union membership. We tabled some amendments, but they were not selected because they went to the core of the clause. I can quite understand why the wise parliamentary Clerk decided that was the case, because we are concerned about—
The Chairman: Order. The parliamentary Clerk does not decide what is selected; the Chairman does.
Mr. Bellingham: I fully respect that, Mr. Forth. The clause removes the word ''employee'' and substitutes the word ''worker''. I put it to the Minister that ''employee'' is a great deal clearer than ''worker''. If somebody is working on a contract, he is either an employee or he is not; that is crystal clear. ''Worker'' is much wider. Is it really the Minister's intention to extend the provisions quite so widely?
The workplace is becoming more fluid and more flexible. More and more companies are contracting out various types of work, and the work force comprises increasing numbers of temporary workers, agency workers and freelancers. The wording could cause complications, particularly in industries that rely a lot on self-employed freelance operatives, such as the music industry. Consider also the construction industry—where, although the Government are trying hard to bring many of the self-employed contractors onto payrolls through IR35, there is still a disparate pattern of employment—or the haulage industry, in which there are many large companies, some of which have substantial fleets of lorries. Most of us pass Eddie Stobart's lorries going up and down the motorway, or see them from the train. Most of those lorries are driven not by employees but by owner-drivers, although they are in the Eddie Stobart livery; that is just one example.
The workplace is changing fairly dramatically, and for the better. People want more flexibility but, far from being employees, they are self-employed contractors. Should they have rights under this clause? Do they expect them? I would submit that they do not. There does not seem to be any demand for it on their part, and I should not have thought that the trade unions were particularly concerned about the matter. Although I have not asked the TUC about this clause, I know that it is concerned about the position of agency workers. We have had lengthy discussions about the agency workers directive, which will give agency workers full contractual rights after a certain period. The directive is being considered carefully in Brussels and is currently in the long grass, but it might come back.
Why is a Bill about employment relations being used to widen the definition of ''employee''? Surely definitional issues such as this are not a matter for the Bill. They should be left to the Government's review of
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employment status. How is that review coming along? The Government are already in discussion with Brussels on the agency workers directive, which will be vital in terms of atypical workers, as they are called in Europe. Is it necessary to bring in definitional changes in a Bill that is fairly narrow in its scope and should not be used for wider issues?
What representations has the Minister received from different unions? I have read a review of the 1999 Act; there did not seem to be much mention in it of pressure or representations from unions that have been surveyed, such as the TGWU and the Musicians Union. Is there significant pressure for the clause to be extended in that way? I should be grateful if the Minister gave us some answers.
Mr. Sutcliffe: I am grateful to the hon. Gentleman for giving us the opportunity to answer his concerns, although he is perhaps confused about the reasons behind what we have done in the Bill; I shall return to those later.
The hon. Gentleman asked when we could expect the outcome of the employment status review. As he knows, the consultation took a long time, and there were more than 400 responses. It is a complex issue, involving the various descriptions of workers and the jobs that they do, as well as issues such as the employment rights of the clergy. It is a detailed issue, but we are making good progress and expect to be able to explain our position on employment status shortly. There has been consultation with the trade unions, the TUC and the employers on the definitions. The hon. Gentleman was right to raise the issue, although he was wrong about what we are trying to achieve.
Clause 24 relates to the Wilson and Palmer judgment. As the hon. Member for Gordon said, our law breached article 11 of the European convention on human rights, which relates to the freedom of association. It relates specifically to the rights against detriment, which are provided for in section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992. Currently, section 146 applies only to employees, and the clause will ensure that workers, not just employees, benefit from those rights.
The reasoning of the European Court of Human Rights is based on the rights of trade union members, who can be employees or other categories of worker. In complying with the Court's judgment in the Wilson and Palmer case, we need to ensure that our improved protections for trade union members cover all such persons to the largest possible extent. Clause 23 ensures that the new rights that it contains not to be offered inducements apply to workers. Correspondingly, clause 24 extends the coverage of the existing rights not to suffer detriment on grounds of trade union membership and activities to workers.
Detriment can, of course, take the form of dismissal, and our amendments to section 146 will ensure that workers who are not employees can make a complaint under that section when their contracts are terminated. However, there are explicit protections against dismissal on the grounds of trade union
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membership and activities in section 152 of the 1992 Act. In common with the rest of unfair dismissal legislation, those protections apply to employees only. To avoid duplication and possible confusion, we need to ensure that employees cannot use both sections 146 and 152 to make a complaint about dismissal. We achieve that in subsection (5) by making it clear that employees cannot use section 146 where detriment takes the form of dismissal. It may help if I mention that such provisions are used in other measures giving workers a right not to be subjected to detriment in relation to the termination of their contracts, and such measures have not given rise to difficulties.
For the present purposes, the definition of the term ''worker'' is that given in section 296 of the 1992 Act. I cannot be categorical about the types of person who might fall within that definition; that will depend on the precise facts of a case and ultimately will be for tribunals to decide. However, I can confirm that the Act's definition covers the vast bulk of agency workers and persons on fixed-term contracts.
Taken together, the effects of the clause are sensible and fit neatly with the important provisions of clauses 23, 25 and 26, allowing us to meet our international obligations.
Question put and agreed to.
Clause 24 ordered to stand part of the Bill.
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