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Lord McIntosh of Haringey moved Amendment No. 221:


Page 53, line 28, at end insert--

("PART VIA
LOSS OF INDEPENDENCE
Introduction

114A.--(1) This Part of this Schedule applies if the CAC has issued a declaration that a union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of a bargaining unit.
(2) In such a case references in this Part of this Schedule to the bargaining arrangements are to the declaration and to the provisions relating to the collective bargaining method.
(3) For this purpose the provisions relating to the collective bargaining method are--
(a) the parties' agreement as to the method by which collective bargaining is to be conducted,
(b) anything effective as, or as if contained in, a legally enforceable contract and relating to the method by which collective bargaining is to be conducted, or
(c) any provision of Part III of this Schedule that a method of collective bargaining is to have effect.
114B.--(1) This Part of this Schedule also applies if--
(a) the parties have agreed that a union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of a bargaining unit,
(b) the CAC has specified to the parties under paragraph 43(2) the method by which they are to conduct collective bargaining, and

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(c) the parties have not agreed in writing to replace the method or that paragraph 43(3) shall not apply.
(2) In such a case references in this Part of this Schedule to the bargaining arrangements are to--
(a) the parties' agreement mentioned in sub-paragraph (1)(a), and
(b) anything effective as, or as if contained in, a legally enforceable contract by virtue of paragraph 43.
114C. References in this Part of this Schedule to the parties are to the employer and the union (or unions) concerned.
Loss of certificate

114D.--(1) This paragraph applies if--
(a) only one union is a party, and
(b) under section 7 the Certification Officer withdraws the union's certificate of independence.
(2) This paragraph also applies if--
(a) more than one union is a party, and
(b) under section 7 the Certification Officer withdraws the certificate of independence of each union (whether different certificates are withdrawn on the same or on different days).
(3) Sub-paragraph (4) shall apply on the day after--
(a) the day on which the Certification Officer informs the union (or unions) of the withdrawal (or withdrawals), or
(b) if there is more than one union, and he informs them on different days, the last of those days.
(4) The bargaining arrangements shall cease to have effect; and the parties shall be taken to agree that the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of the bargaining unit concerned.
Certificate re-issued

114E.--(1) This paragraph applies if--
(a) only one union is a party,
(b) paragraph 114D applies, and
(c) as a result of an appeal under section 9 against the decision to withdraw the certificate, the Certification Officer issues a certificate that the union is independent.
(2) This paragraph also applies if--
(a) more than one union is a party,
(b) paragraph 114D applies, and
(c) as a result of an appeal under section 9 against a decision to withdraw a certificate, the Certification Officer issues a certificate that any of the unions concerned is independent.
(3) Sub-paragraph (4) shall apply, beginning with the day after--
(a) the day on which the Certification Officer issues the certificate, or
(b) if there is more than one union, the day on which he issues the first or only certificate.
(4) The bargaining arrangements shall have effect again; and paragraph 114D shall cease to apply.
Miscellaneous

114F. Parts III to VI of this Schedule shall not apply in the case of the parties at any time when, by virtue of this Part of this Schedule, the bargaining arrangements do not have effect.
114G. If--
(a) by virtue of paragraph 114E the bargaining arrangements have effect again beginning with a particular day, and
(b) in consequence section 70B applies in relation to the bargaining unit concerned,
for the purposes of section 70B(3) that day shall be taken to be the day on which section 70B first applies in relation to the unit.")

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The noble Lord said: In another place the honourable Member for Daventry, Mr. Tim Boswell, pointed out that Schedule 1 had no procedure for dealing with a union which was recognised but then ceased to be independent. My speaking notes say that that is almost unheard of. I believe that it has never happened for a union to lose its certificate of independence. But the possibility exists and we should allow for it. So we have a two-page amendment. It is fair that no employer should be required to recognise a non-independent union.

However, we also want to promote stable industrial relations. It would be perverse to require a union to be derecognised simply because it ceased to be independent. Therefore, the Government believe that statutory recognition should be treated as voluntary if a union loses its certificate. That means that the employer could derecognise the union if he or she wished or, if the workers wished to derecognise it, they could apply under Part VI of the schedule.

Amendment No. 221 adds a new Part VIA which gives effect to that policy. We have also provided for the bargaining arrangements to end. There is no reason why the parties should not agree to continue them, but there should be no legal requirement to do so. This is a helpful change to deal with what is likely to be a rare event. I commend the amendment to the Committee.

On Question, amendment agreed to.

Baroness Turner of Camden moved Amendment No. 222:


Page 54, line 7, after ("employer") insert ("other than a breach which is accidental or which is a reasonable furtherance of the principal reason for the employee's action which fell within one or more grounds set out in sub-paragraph (2),")

The noble Baroness said: In moving this amendment I speak also to Amendment No. 225, which covers roughly the same point. Part VII deals with detriment and seeks to protect a worker who has a right not to be subjected to any detriment. The grounds are set out on which an employee should be protected against detriment. Clearly, they are connected with campaigns for recognition.

However, what we intend to do is protect the worker against what is provided for in sub-paragraph (3) because he or she is not protected in the event of a breach by a worker of his contract with an employer or for an unreasonable act or omission by the worker. We wish to write into that sub-paragraph,


    "other than a breach which is accidental or which is a reasonable furtherance of the principal reason for the employee's action which fell within one or more grounds set out in sub-paragraph (2)" In other words, the various grounds under sub-paragraph (2)(a) to (e). It seems to us rather harsh that an individual could lose his protection for what perhaps could be an accidental breach. He might be found in a part of the premises where he was not normally supposed to be by sheer accident and in support of what he thought was a quite legitimate activity within the terms of paragraph 115(2).

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I hope that my noble friend regards this as a reasonable proposition. These things can happen in the workplace. One would not want to see a worker lose his protection under this clause of the Bill simply through a minor or accidental breach. I beg to move.

Baroness Miller of Hendon: Paragraph 115(2) sets out the grounds on which an employee is not to be subject to detriment when he is acting in furtherance of recognition or derecognition of a union or bargaining arrangements. Paragraph 115(3) provides that that protection does not apply when the employee acts in breach of contract or his conduct is unreasonable. I believe that that is entirely even-handed. The amendment seeks to drive a coach and horses through the withdrawal of protection by saying that the breach of contract shall not count if it is accidental. How can that ever be established? What is an accidental breach of contract? It is also said that the protection is not lost if the action is in breach of paragraph 115(2), but that provision protects him anyway. I believe that this amendment is simply an attempt to muddy the waters.

Lord McIntosh of Haringey: Is the noble Baroness intending to speak also to Amendments Nos. 223 and 224 which are included in the same group? If so perhaps it would be helpful if she dealt with them now so that I can respond to all four amendments.

Baroness Miller of Hendon: I thank the Minister for his very helpful suggestion. I should like to speak also to Amendments Nos. 223 and 224 together. The part of the first schedule to which these amendments relate deals with compensation that may be awarded by an employment tribunal to an employee if (to paraphrase the provision) he is subjected to any detriment as a result of activities in connection with union recognition. Paragraph 118(2) and (3) contain the formula for assessing that compensation. It is those two sub-paragraphs that I propose should be very slightly modified. As this is not just another case of plucking odd words out of a paragraph, it may be of assistance to the Committee if I read an abbreviated form of the two sentences as they would appear if these amendments were accepted. Sub-paragraph (2) would read:


    "The amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to any loss sustained by the complainant". Sub-paragraph (3) would read:


    "The loss shall be taken to include--


    (a) any expenses ... and


    (b) loss of any benefit". The words that I propose to delete from sub-paragraph (2) refer to compensation taking into account "the infringement complained of"; in other words, as drawn the provision would allow the tribunal to award not only compensatory damages, which is only right and proper, but also some arbitrary sum as punitive damages. I believe that that is wholly inappropriate in this case. The Bill clearly sets out a menu of detriments in paragraph 115(1). There is nothing in that list of detriments that justifies punitive damages.

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Doubtless the Government will argue that it is up to an employer to put himself in the position of not incurring liability under this paragraph. That means that the provision is intended as a deterrent, but in the present climate of compensation culture it would be all too easy for an employee to dream up an imagined detriment that he could attribute to one of the items in paragraph 115(1) and seek unlimited punitive damages from the tribunal. He might allege that he was not promoted because he was one of those who brought the union into the factory. The employer would then be left struggling to prove a negative or to prove that the reason why the complainant was not promoted was because the person who had more experience, was better suited or had greater seniority.

We have all seen cases where disgruntled employees have unjustifiably complained that they have been discriminated against on the grounds of race or sex when that had nothing to do with whether they were or were not promoted. An employer is left with the expense of fighting a case where the employee has nothing to lose as the unsuccessful party does not have costs awarded against him. He may launch a case in the hope that the employer will be blackmailed into paying something, or the employee may find a generous and gullible tribunal which will give him the equivalent of a minor lottery win. There is no case for attempting to intimidate employers or to make them lean over backwards in favour of an employee who was active in getting union recognition as against one who did not, for fear of a malicious gold-digging complaint being launched.

Amendment No. 224 is consequential. Leaving out the words "taken to include" makes it clear that the only basic compensation is for expenses reasonably incurred by the employee and any actual or anticipated loss of benefit. There is nothing for hurt feelings; nothing for bad nerves; nothing for post-traumatic shock syndrome.

The common law of this country has always dealt with employment disputes on the basis of compensating the employee for the actual monetary loss sustained, however that may be calculated--how long the employee was out of work after dismissal; how much he lost in wages as a result of having to accept a lesser paid job; loss of pension rights and fringe benefits; and so on. There is absolutely no need to impose another set of potential claims on industry when all that is needed is the right of an employee who has been unfairly treated to recover his pecuniary loss.


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