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Lord Colwyn: My Lords, before my noble friend sits down, may I ask whether she has any information about the timing of the future stages of this Bill?

Baroness Cumberlege: My Lords, that is an extremely difficult question. I shall have to go to the usual channels and find out. I do not know.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

Code of Practice on Industrial Action Ballots and Notice to Employers 1995

5.31 p.m.

Lord Inglewood rose to move, That the draft code of practice laid before the House on 11th May be approved [21st Report from the Joint Committee].

The noble Lord said: My Lords, I beg to move. The Trade Union Reform and Employment Rights Act 1993 made various changes to the laws on balloting, including the requirements that ballots should be conducted only by post and be subject to independent scrutiny. These changes mean that union members can now have greater confidence that ballots will be properly conducted.

The 1993 Act also introduced for the first time a requirement for unions to provide at least seven days' notice to employers of ballots and strikes. Notification of ballots or strike action is an important right for employers, enabling them to manage their businesses more effectively and efficiently.

The current code of practice on trade union ballots on industrial action was last revised in 1991. The draft code before the House today has been amended to reflect the changes made by the 1993 Act.

As background it may perhaps be helpful for me to say a few words about the purpose and legal status of the statutory code. The aim of the code is to set out and explain the requirements of the relevant law and to help unions and employers turn what is on the statute book

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into actual best practice. I must stress that, as noble Lords are undoubtedly aware, the code does not—indeed, cannot—change or add to the law. It merely puts the law in a more accessible form and makes some recommendations for good practice. These recommendations are not legally binding. However, the code is admissible in evidence and may be taken into account by a court or tribunal if it appears relevant to any question arising in proceedings.

Section 204(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 states that when a Secretary of State proposes to issue or revise a code of practice, he shall, after consultation with ACAS, prepare and publish a draft of the code, consider any representations made to him about the draft and may modify the draft accordingly. A draft was therefore issued for public consultation last October, for comments by 19th January this year. In all, we received 21 responses: 14 from employers or employers' organisations and seven from trade unions or similar bodies. All comments were given detailed consideration and a number are reflected in the revised code before your Lordships today.

The revised draft code has been given a new title to cover both the balloting process which a union must satisfy to be protected against proceedings which could otherwise be brought to stop it organising industrial action and also the new requirement to give notice to employers of a union's intent to conduct a ballot or call for industrial action following a ballot. In broad terms, the most significant changes from the previous code are: first, new recommendations about the information which a union should in certain circumstances include in its notice to employers of intended official industrial action; and, secondly, new recommendations, and a clarification of the description of statutory requirements, to encourage unions to let employers know if there are significant differences between information notified in advance and what happens when the ballot is actually held. The revised code also confirms that union notices, when they are provided, must represent the union's genuine intentions.

Like the current code, after an opening section describing its scope and legal status, the revised draft code follows the sequential process involved in balloting, with the addition of the provision of notice to employers. It follows the practice of previous industrial relations codes by showing re-statements of the requirements in primary legislation against a shaded background; the remainder of the text comprises "good practice" recommendations or similar guidance.

It may be helpful if I outline briefly the content of the code. Section A explains the scope and legal status of the code, its intended purpose and the assistance that it can provide to unions, their members and others. Section B makes recommendations about observing procedure agreements and other considerations which should be taken into account before a ballot is held. These recommendations are aimed at ensuring that all possibilities are explored and industrial action is genuinely the last resort.

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Section C sets out the new requirements for independent scrutiny of ballots where more than 50 members are given entitlement to vote and recommends that a scrutineer should be appointed before steps are taken to satisfy any other requirements of the law. It covers the requirements of the scrutineer's terms of appointment; and states that there must be no interference with this function from the union or any of its members, officials or employees; and that the trade union must comply with all reasonable requests made by the scrutineer for the purpose of carrying out those functions.

The code adds that it may be helpful for a union to entrust additional tasks to the scrutineer (such as the supervision, production and distribution of voting papers and being the person to whom voting papers are returned). It also recommends that unions should make adequate arrangements for scrutiny even where ballots involved 50 or fewer members, though these do not necessarily have to involve an independent scrutineer.

Section D restates the law on the method of voting; entitlement to vote without interference or constraint; and entitlement to vote in secret without any direct cost. Recommendations are made about arrangements to ensure secrecy of voting.

Finally, Section E restates the law on ensuring that votes are accurately and fairly counted and on the notification of details of the ballot result. This section also makes recommendations about procedures to ensure accurate and fair counting of votes; systems to help ensure that statutory requirements about notification of the result are fully satisfied; obtaining and providing copies of the scrutineer's report; notifying details of ballot results; and matters which a union should take into account before deciding to organise industrial action.

An issue which has been of concern to a number of those commenting on the code is that unions may be required to provide names of individual members to employers. There was a full debate on this matter prior to the introduction of the legislation and it would not be right now to go over the same ground in any detail. However, it might be helpful for me to remind your Lordships of what Ministers said during the passing of the legislation; namely, that there could be some occasions when it would be necessary for unions to give names to employers because, realistically, there could be no other means of identifying those involved. Since the 1993 Act, the case of Blackpool and the Fylde College v. National Association of Teachers of Further and Higher Education has shown that the law is working exactly as Ministers had said it would. In that particular case, around a third of the college's lecturers were union members but the employer had no way of knowing who most of them were, and therefore no way of putting the college's case to those who were to be balloted, unless the union provided their names.

It will of course be rare in practice for a union to have to give names. In many cases the employer will know which employees are to be balloted, for example, because they pay their union subscriptions by check-off deductions from their wages. But nobody need be afraid

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to do so since the law provides full protection for employees against dismissal or other action on the grounds of trade union membership.

This code of practice reflects the spirit and the letter of the 1993 legislation on this issue, making clear that the need to provide names arises only if workers cannot be identified by other means; for example, grade or work activity.

This code, if approved, will be a valuable source of reference for unions, union members and others. Taking account of its recommendations can only help improve the conduct of ballots, and that in turn will help continue the improvement in this country's industrial relations which has been such a feature of the last decade. Following the recommendations of this code will help ensure that union members have a proper, democratic voice in their union's decision on whether to call industrial action; it will enable employers to put their side of the argument before workers vote on whether to strike; and it will enable employers and others to have a reasonable period of notice during which to prepare for the effects of industrial action. The guidance helps explain the requirements of the relevant law, so that nobody can complain that he or she was unaware of the law or could not understand it. Finally, the good practice recommendations are aimed at avoiding disputes both within unions and between unions and employers. Following them will improve industrial relations.

For those reasons I commend the draft code of practice to your Lordships.

Moved, That the draft code of practice laid before the House on 11th May be approved [21st Report from the Joint Committee].—(Lord Inglewood.)

5.40 p.m.

Baroness Turner of Camden: My Lords, I thank the Minister for his explanation of the draft code of practice before the House. He will not be surprised to learn that I do not much care for it. I do not care for the legislation on which it is based—the Trade Union Reform and Employment Rights Act 1993. I accept, with reluctance, that despite vigorous opposition in this House mounted by myself and my noble friends Lord McCarthy and Lord Wedderburn, we were unable to persuade either the Government or the House at that time that the legislation then proposed was weighted heavily against trade unions and was therefore unjust and unfair.

We accept, as the Minister said this afternoon, that industrial action is a last resort. I speak as a former senior trade union official. I spent a large part of my working life as an official and had my share of disputes—and resolved them. It should not be assumed, as the Government seem to, that unions exist for the purpose of running strikes. We accept that strikes are damaging, not only to industry and commerce, but often to the members themselves who have to exist on strike pay and may lose substantial amounts of money. It is a worrying time for the members, their families and union officials who feel themselves responsible for their well-being. But the right to strike must exist as a longstop. It is only forbidden by law in oppressive, despotic and undemocratic regimes. The ultimate right

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of workers who have a grievance collectively to withdraw their labour is an important right; indeed, a civil liberties issue. Having said that, we also agree with ballots and participation by members in the industrial decisions that govern their lives. My union always balloted its members, and not only on dispute action, but also on other issues directly connected with members' employment.

Our objection to the 1993 Act is that it sought to tie up unions in a great deal of bureaucracy before they could obtain immunity; in other words, before their actions would be regarded as lawful within the meaning of the Act. The same thing applies to the draft code. In my copy the coloured sections presumably refer to the actual law while the uncoloured or white sections are the code, which is not the law but a kind of guide. In my view all that simply adds to the red tape, indeed to the hurdles that unions must surmount before they can be sure that they have complied adequately with all requirements.

The code contains great chunks of print dealing with the provision of notice to employers, the printing and distribution of ballot papers, communication with members, counting the votes accurately and so forth, none of which is in the law as I understand it. It simply adds to the amount of material that must be digested by union officials before even contemplating industrial action. It is far too much and elaborates unnecessarily, I should have thought, what is contained in the Act.

Again, the code seems to be one-sided. One would not think, on reading this material, that it takes two sides for there to be a dispute. The employer may well be culpable; may well have refused to negotiate or attempted to undermine existing terms and conditions and so forth. It is clear that in those circumstances the Government feel that employees should put up and shut up. To draw attention to what I mean, the code makes the point—this is stated on the sample ballot paper—that the member must be allowed to vote without interference from or constraint imposed by the union or any of its members. But what about constraints and intimidation—I can assure your Lordships that they are quite common—indulged in by employers?

Furthermore, paragraph 38 states that the union should ensure that nothing appears on the ballot paper which might encourage a voter to answer one way or the other. Apparently, therefore, the union may not make any recommendation to its members. Then there is the point made in paragraph 46 indicating that the ballot could fail to satisfy requirements unless the union makes sure all members, officials, employees and so forth do not, even inadvertently, exercise constraints upon those entitled to vote. That is an impossible requirement, particularly in a large union. It is true that there is a provision whereby the union executive may retain immunity by repudiating the actions of such an individual, but the action may not come to its attention for some time, perhaps not until someone mounts a challenge.

The provisions are much too sweeping and go beyond what the law, bad as it is, requires. Paragraph 48 refers to the special arrangements which need to be made to ensure that voting papers reach members who are on

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holiday, sick or on maternity leave. That again may be asking too much of a union which may have large numbers of members and would not normally keep records of people on maternity leave, on holiday or sick.

There is then the point to which the Minister referred in his explanation, which gave us so much trouble when we debated the Bill in the House. I refer to the requirement which could mean that employers have to be supplied with the names of union members. I well remember the arguments I advanced against this when we debated the Bill. I was assured by the Minister, and it has been repeated this evening, that although the Government wanted to retain that requirement as a longstop, it was most unlikely that it would ever be used in normal practice. It now transpires that there is a case—to which the Minister referred this evening—concerning NATFHE—where the judge did not take the view that it would be a rare requirement; indeed, quite the contrary.

If the Government's view is that that requirement should exist only in rare cases, a much greater attempt should have been made to see that it was quite specifically included in the code. As it is, I can tell the Minister from my own experience that there are members, particularly those in supervisory or senior positions, who may be promoted but who retain their union membership and with that the right to have a ballot paper, who may not want to have their contributions deducted by check-off and who may not want their employers to know that they are still union members and are still entitled to vote. I made a plea on behalf of such people when we debated the Bill and it attracted a little sympathy even from noble Lords on the other side. I am disappointed therefore that more has not been done in the code to emphasise the points that were then made.

Of course the Government claim, and the Minister did so again this evening, that their so-called reforms have reduced the number of industrial disputes and have been responsible for what is claimed to be a great improvement in industrial relations. I do not agree. There has been a large increase in unemployment since the late 1970s when the last Labour Government held power. Not only that; those in employment feel a great deal less secure, as I said when we debated the casualisation of the labour market last week. Manufacturing industry in particular has shrunk in size; far fewer jobs are available in what remains. Those are all potent factors in reducing the number of disputes and the readiness of employees to risk what they have, even if it is unsatisfactory. The legislation has assisted the general sense of insecurity because unions are seen as having less power to protect their members. As I said in the debate last week, the general sense of insecurity and the lack of the feel-good factor may well give this Government a great deal of trouble when the next election occurs.

In the meantime, since the code has already been through the other place, I assume that we have no alternative but to accept it here. However, I understand from my noble friend Lord Wedderburn—who I am glad to see is with us tonight—that he believes that a section

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of the code is actually wrong in law. I believe he has given notice to that effect. If that is so, then the Government should take it away and look at it again.

5.48 p.m.

Baroness Seear: My Lords, we on these Benches supported the earlier stages of the trade union reforms which were brought in by successive Conservative governments and felt that a great deal of reform was needed. But as the legislation progressed, particularly the 1993 Act, we felt that the Government were going much too far and were trying to undermine trade unionism in this country. We have said on a number of occasions that it is not possible to run an industrial country and a successful economy where large numbers of people are employees without having properly organised trade unions with proper rights, properly protected.

The Government must recognise that it is time to strengthen responsible trade unionism rather than attempt to undermine it, which has been their policy all along. We accepted, and accept willingly and support, the idea of ballots. The noble Baroness, Lady Turner, accepted that ballots were a good introduction. It was one of the pieces of legislation to which we gave unqualified support. The Government got what they wanted long ago and it is time to strengthen the position of responsible trade unions rather than to undermine them further.

I agree with the noble Baroness, Lady Turner, that in much of the detail of the order there is a great deal of unnecessary burden placed on trade unions in the organisation of strikes. The right of association is an essential human right. But the right of association in the industrial scene means nothing unless there is the right to withdraw labour and that means that properly conducted and under proper conditions the strike is an essential part of an essential human right. We all know that it should be used only in exceptional circumstances, but when it is being used, the employees and members of the trade union should be entirely untrammelled in their right to use it within the framework of the law.

In our view the Government have gone too far in trying to restrict proper trade union activity. I should like especially to refer to the point made towards the end of the speech of the noble Baroness, Lady Turner, and on which we spoke with considerable force when the legislation was progressing. That is the question of the employer's right to have names of people who are members of trade unions. To belong to a trade union is a right. It is a right of the individual person and it is not the business of the employer or anyone else to decide who is a trade unionist and who is not. There are people who do not wish the employer to know. While the noble Lord may say that the law protects them against victimisation, there are all manner of ways in which people who displease employers can be handicapped without it reaching the point of being anything which could legally be described as victimisation. We consider that the decision to give the employer the right to have those names is quite wrong.

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The noble Lord, Lord Inglewood, will no doubt say, as so many people on the Government Front Bench say on occasions such as this, that it is only a small matter, that it will not happen very often, that it will happen only on rare occasions. That is no argument whatever. Good law is about dealing with exceptional circumstances. In the majority of cases there are not issues that have to be raised, but it is in the exceptional case that the law is important. The fact that it does not happen often does not make a bad law into a good law or a bad regulation into a good regulation. I repeat that we accept the opportunity for strike ballots and we accept that there has to be a code to deal with that. But we consider that some of the detail of the code is very mistaken.


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