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Lord McCarthy: Perhaps it is the acoustics in this Chamber, but I was trying to say that it was the noble Lord, Lord Tebbit, who was in the back of beyond in talking about activists. Never mind. Whether that is accidental or intentional, let me return to my amendment.

I did not expect the noble Baroness to be in favour of proxy voting. It is of course all right for companies. One can buy and sell Marks and Spencer by proxy vote but not use that method to achieve union recognition. All right. We do not need to have proxies. I gave that as an example. I want maximum participation. My noble friend Lord McIntosh says that we cannot do that, as if the members of my party--

Lord McIntosh of Haringey: I said no such thing. I said that the Bill wants to maximise participation. We want a high turnout. All I said was that we do not think it is the CAC's job to maximise participation. The people taking part in the ballot should do that.

Lord McCarthy: It is all right for the leaders of our party to go around saying, "For God's sake vote in the European elections." That is considered perfectly fair and proper but is not thought to be a job for the CAC. Okay. I want a series of provisions that result in high participation. It is said that the Government do not want that on the face of the Bill. One does not need that on the face of the Bill.

I want a series of provisions that induce high participation, partly because of the 40 per cent turnout rule. That rule is reasonable if there are facilities for high participation. But where employers have a vested interest, as they do, in discouraging high participation, one must have something going the other way. The easiest way for an employer to ensure that a 40 per cent turnout is not achieved is to make it difficult to vote.

Lord Brookman: Does the noble Lord agree that trade unions--and I represented a trade union--have a job to do as well? I am absolutely convinced that trade

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unions will do what is necessary and will work hard to achieve 40 per cent. We do not need that much help from legislation in that respect. We will do what is necessary and have substantial success.

Lord McCarthy: I sincerely hope that the noble Lord is right. Maybe I am living in the past in that respect. I remember what happened between 1974 and 1979. I remember all the obstructions that employers put in the way of high participation. I remember ACAS reports that spelt out the way that was done. As a result, quite rightly, this Bill has a number of protections for employees and trade unionists in the participation process. I am merely trying to say that there should be a mix of methods to induce high participation.

That brings me to the Government's amendment. The noble Lord, Lord McIntosh, said that he had met me one third of the way. Look at the words. Amendment No. 35 refers to,


    "a combination of the methods".

That is fine. But Amendment No. 36 states:


    "The CAC may not decide that the ballot is to be conducted as mentioned in sub-paragraph (4)(c)"-- the one I have just read--


    "unless there are special factors making such a decision appropriate". So it is not going to be the norm. The useless, pointless choice between a workplace and postal ballot will still be the norm. The abnormal will be,


    "(a) factors arising from the location of workers or the nature of their employment;


    (b) factors put to the CAC by the employer or the union (or unions)".

The unions may put to the CAC the fact that they do not believe that they can achieve high participation unless they have a mix of methods. What would the Minister say to that?

6.30 p.m.

Lord Wedderburn of Charlton: A further question arises from the important remarks of my noble friend. Surely, the Government's Amendment No. 36 is somewhat odd and should be corrected as suggested by my noble friend. The factors which must be taken into account by the CAC exist in an inclusive fashion. They might refer to other factors. Many Members of the Committee have greater knowledge than I, but surely many trade unions tend to be individual in their structure, nature and culture. That is often why it is difficult to achieve a merger which would otherwise be sensible.

One does not want to encourage that as an obstacle. So would it not be sensible to stress that these factors, if they have to be mentioned, are only examples and that the CAC is free to take other factors into account?

Lord McIntosh of Haringey: The important point, in answer to both of my noble friends, is that it is greatly to the union's advantage to encourage a high turnout. It used to be thought that that was more readily achieved in workplace ballots. Many people opposed to trade unions used to oppose such ballots on the ground that

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they were more likely to be manipulated or even distorted. If the argument were only about high turnout, it could be said that there should be only workplace ballots.

However, the evidence is much more confused. There are examples of high turnouts in postal ballots; for instance, in a recent recognition postal ballot from ADT Security Systems the turnout was more than 70 per cent. It is true that nowadays, with more flexible working conditions and more people working away from a fixed location, a workplace ballot can be more difficult to organise than in a single-site factory. Therefore, unions, when making such decisions, must take into account many considerations peculiar to their situation. My noble friend Lord Wedderburn made exactly that point. However, what is consistent about them is that it is always in their interest to have a high turnout because of the turnout threshold we have included in the Bill.

Under those circumstances, all we are doing with Amendments Nos. 35 and 36 is to give the unions flexibility in order to help them achieve a higher turnout without risk of malpractice or distortion in the ballot. Our proposal is a worthwhile advantage. I cannot see what proxies add and I am not greatly tempted by the argument of my noble friend Lord McCarthy about shareholders.

Lord McCarthy: In the circumstances, we are happy to withdraw the amendment. It may be that we can get one-third of the way forward on Report. On that understanding, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendments Nos. 35 to 38:


Page 23, line 23, at end insert ("or
(c) by a combination of the methods described in paragraphs (a) and (b),")
Page 23, line 30, at end insert--
("(5A) The CAC may not decide that the ballot is to be conducted as mentioned in sub-paragraph (4)(c) unless there are special factors making such a decision appropriate; and special factors include--
(a) factors arising from the location of workers or the nature of their employment;
(b) factors put to the CAC by the employer or the union (or unions).")
Page 23, line 40, leave out ("has decided") and insert ("is required under paragraph 20A")
Page 23, line 42, leave out ("of the decision") and insert ("that it is so required")

On Question, amendments agreed to.

Baroness Miller of Hendon moved Amendment No. 39:


Page 24, line 9, at end insert ("provided that, unless the employer otherwise agrees, such access shall only be required to be granted on each occasion outside the hours the employees are required to work and shall be restricted to such parts of the employer's premises as he may from time to time designate")

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The noble Baroness said: In moving this amendment, I wish to speak to Amendment No. 209. I also have two amendments to Amendment No. 40, which is in this group. Perhaps I can be advised when I can speak to them.

Under paragraphs 21 and 29 of the schedule, an employer is obliged to provide access to the workers to,


    "enable the union ... to inform the workers of the object of the ballot and to seek their ... opinions on the issues involved". The ballots referred to concern recognition in paragraph 21 and derecognition in paragraph 29. What I have described as an obligation is much more dramatically described in the introduction to each paragraph as a "duty." Well, it is only a word and in these days no one could object to being obliged or duty-bound to provide the facilities. On the contrary, we believe that it is far better to be on the employer's premises than at the factory gate, or even in the car park, where all kinds of unconnected and outside parties might want to join in.

Since the obligations are to allow the union access to the workers, I have to assume that this means personally and not being supplied with a mailing list. Perhaps the Minister will clarify that. If the employer has a large staff, there may not be a canteen or hall, or other space, to accommodate them all at once. Will the Minister tell us what will happen then? Possibly the Government will need to introduce yet another amendment on Report.

Without detracting from the principle involved in this clause, and despite the fact that in both cases there is the restriction that the access has to be reasonable, I fear that some further clarification is needed in order to enable an employer to have some idea about the meaning of being reasonable. I have provided two restrictions, both of which the employer is at a liberty to waive. First, the employer can require the meeting to take place outside normal working hours. What must not happen is for the unions to be able to get the workers to down tools to go off to a meeting of indefinite length during working hours. Calling meetings at an inconvenient time is not unknown in the history of trade disputes and is a means of exerting pressure on an employer by having what can be described as "a mini strike" without going through the formalities of calling a real one.

My second point is that the employer shall designate the place of the meeting. The Bill requires the employer to be reasonable. But the employer may not want the meeting to take place outside the loading bay where goods are constantly coming or going. He may not want it in the car park under the full glare of TV news. He may not want it on the shop floor where it will disrupt the work of another shift. As I pointed out, the Bill quite properly requires the employer to act reasonably.

Despite the reference by the Secretary of State during the Second Reading debate in the other place to,


    "measures for partnership based on rights matched by responsibilities".--[Official Report, Commons, 9/2/99; col. 130.] as with other large tracts of this Bill there are no responsibilities imposed on the unions to match the duties. As I recently reminded the Committee, that word is imposed on the employers under this provision. These

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    two identical amendments at least restore the balance in two minor ways without seriously inconveniencing the union, even if at all. I beg to move.


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