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Code of Practice on Industrial Action Ballots and Notice to Employers

3.19 p.m.

The Minister for Science, Department of Trade and Industry (Lord Sainsbury of Turville) rose to move, That the draft code of practice laid before the House on 26th June be approved.

The noble Lord said: My Lords, the purpose of this draft code is to revise the present statutory code of practice with the same title issued in 1995. The revisions are mainly to reflect the changes made by the Employment Relations Act 1999 to the legislation dealing with industrial action ballots by trade unions. We have also taken the opportunity to shorten and clarify the code's provisions. At the same time we have tried to keep material which has been found useful in the past by unions, employers, balloting organisations and those who advise them. Subject to parliamentary approval for the draft code, we intend to bring it and the 1999 Act changes into effect from Monday 18th September.

The code would be issued under the powers in the 1992 Act which allow for the Secretary of State to,



    (a) of promoting good industrial relations, or


    (b) of promoting what appear to him to be desirable practices in relation to the conduct by trade unions of ballots and elections".

Like the present code, it would impose no legal obligations and failure to observe it would not by itself render anyone liable to proceedings but its provisions could be taken into account in court proceedings relating to the statutory requirements.

Taken together, the revised code and the amended legislation are designed to provide a framework to promote the orderly conduct of industrial action ballots and good industrial relations practices in the cases, which fortunately are now relatively rare, when industrial action is being contemplated.

This is designed to fulfil the Government's commitment to simplify the law in this area by making it easier for trade unions and their members to understand their rights and responsibilities. We believe that that should reduce the risk of legal disputes over technicalities, which are in no one's real interests, while preserving the key elements of the present legislation.

It may help your Lordships if I briefly outline the legislative context in which the code would operate. Generally speaking, encouraging people to break contracts can give rise to a liability to pay damages to parties who suffer loss as a result of the breach.

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The organisation of industrial action by trade unions is a longstanding exception from this general principle, so long as certain conditions are met allowing the union to benefit from what are often called the "statutory immunities".

The unions have to meet various conditions if they are to enjoy these immunities, including, for instance, a requirement that the industrial action concerns a trade dispute between workers and their employer. But the conditions that particularly concern us today are those that prevent these immunities applying to industrial action organised by trade unions unless the action is sanctioned by a majority vote in a properly conducted ballot and certain information is provided to the employers of the union members to be balloted or, subsequently, encouraged to take industrial action.

The law places a number of duties on unions in this area, and your Lordships may be relieved to hear that I do not propose to go through those in great detail today. But I shall briefly summarise the changes made by the 1999 Act which give rise to the need for the revised code that we are debating today.

The 1999 Act does away with the requirement for unions in some circumstances to give employers the names of their members whom they intend to ballot or call on to take industrial action. We said in the Fairness at Work White Paper that we did not believe it right to force unions to disclose their members' names, possibly against those members' wishes. Unions will be required to give employers information to enable them to make plans and bring information to the attention of the workers concerned but the 1999 Act makes it clear that in future unions will no longer be under any obligation to include their members' names as part of this information.

The other changes in the 1999 Act, first, make it easier to suspend or postpone industrial action by agreement between the union and employer, for example, to allow talks to proceed. Secondly, they rationalise the requirements on unions to provide employers in multi-employer ballots with information on ballot results and samples of voting papers to be sent to their workers.

Thirdly, the changes seek to rationalise the restrictions on whom a union can call on to take action after a ballot. A union can currently call on members to take action who were not balloted because they were not members at the time. That is being extended to cover workers who were members of the union at the time of the ballot but were not balloted because it was not then reasonable for the union to believe they would be called upon to take industrial action. That would arise, for example, where a member was unexpectedly transferred into the group of workers that the union intended to call upon to take action.

Fourthly, they seek to simplify the existing, very complicated, requirements governing when a union can hold a single ballot of members in different workplaces for the purposes of deciding whether or

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not they favour industrial action; fifthly, to end uncertainty by defining overtime and call-out bans as "action short of a strike" for the purposes of the law on balloting (reversing a recent High Court judgment which decided that overtime bans were strike action) and removing continuing uncertainty over the status of call-out bans.

Sixthly, the changes amend the statutory "health warning" which must appear on ballot papers to reflect the new unfair dismissal rights introduced elsewhere in the Act, which entered force on 24th April. That reflects an amendment tabled by the noble Baroness, Lady Miller, in the House of Lords during the passage of the Employment Relations Bill. Seventhly, they extend the existing limited flexibility designed to facilitate the balloting of merchant seamen. And, finally, they give the courts greater scope to disregard small, accidental failures in the organisation of ballots which would not affect the result. Those changes were made following a series of detailed consultations.

In the Fairness at Work White Paper, we asked for views on the ways in which the existing legal framework could be simplified or clarified. We received a large number of suggestions in response which we studied carefully, rejecting those which would have undermined an essential protection or feature of the existing law or which were unworkable or gave rise to problems in legal interpretation. The remainder were incorporated in the 1999 Act.

We then revised the code of practice to reflect those changes, and in April this year we published a consultation document containing a draft code. Officials held a public meeting during the consultation process which gave an opportunity for interested parties to raise concerns and seek clarification. By the end of the consultation period we had received 34 responses from a variety of quarters including the CBI, TUC, trade unions, employers' organisations and employers, lawyers and employment relations specialists. A list of respondents has been placed in the Libraries.

Over half the responses, from all sides, welcomed the Government's aim of simplifying the 1995 code and most of those said that they believed the consultation draft had done so. A number of suggestions for further improvements were made. Inevitably, we were not able to accommodate all of them; some, for instance, were contradictory and some directed at the underlying law rather than the code itself. But the draft before the House today takes account of many of the comments we received and is, I believe, the better for it.

As well as updating the content to reflect the 1999 Act changes which I have already outlined, the draft code makes clearer the distinction between exhortation, restatement of the law and guidance--for example, on reasonableness tests--which would be of use to those conducting industrial action ballots and can be taken into account by the courts. It cuts down on repetitive and explanatory material which might have been useful when the provisions were new but has

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become less so in the light of experience; and it replaces or removes some unnecessarily prescriptive wording. The draft is some 15 per cent shorter than the current code and, in my view, is clearer and easier to understand.

We are living in a time of relative industrial harmony. The number of days lost through industrial action is near its lowest level since records began in 1891. We are pursuing a partnership agenda aimed at keeping it that way. The changes which we are proposing to this code, and the changes made by the 1999 Act, will further contribute to that process by maintaining the fundamental principles of the current law while removing unnecessary burdens and red tape, clarifying unions' obligations and narrowing the scope for legal disputes to arise. I beg to move.

Moved, That the draft code of practice laid before the House on 26th June be approved.--(Lord Sainsbury of Turville.)

Lord Northbrook: My Lords, the Government have produced a code of practice on industrial action ballots and notice to employers of over 18 pages. So far as I can tell, it conforms to the requirements of Schedule 3 of the Employment Relations Act 1999.

I hope that the comprehensive nature of this code of practice will ensure that disputes, if they arise, are dealt with in an orderly manner and that walk-outs and intimidation are prevented. Despite the fact that small accidental failures to comply with the code are to be ignored, I also hope that the code will not prove to be the basis for complicated litigation. I can only say that we on these Benches trust that these proposals will effectively serve the purpose for which they are intended.


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