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Baroness Turner of Camden: My Lords, I welcome the amendment. As has been said, it is the same as an amendment that my noble friends and I tabled at an earlier stage of the Bill. The unions welcome the change. It is progress, so I thank my noble friends for the acceptance of the case that we made.
On Question, amendment agreed to.
Clause 28 [Inducements relating to union membership or activities]:
Lord McCarthy moved Amendment No. 14:
The noble Lord said: My Lords, we are coming back now to our old friend "sole or main". We do not apologise for that. We are coming back to our old friend the Wilson-Palmer judgment, and we do not apologise for that. We accept that the Government have gone a long way in trying to come to terms with the Wilson-Palmer judgment. It is difficult in the sense that we get decisions out of the international courts, but they do not always give us the precise words that we should put in our statutes in order to comply with what they want us to do. Therefore, there is an area in which the Government have to work it out for themselves, which is what they have done.
In our opinion, and in that of all kinds of authorities—I trotted them out last time that we debated the matter, so I shall not do so tonight—there are two ways in which the Government have not yet fully complied with the Wilson-Palmer judgment. The second—the provision of appropriate rights for the trade unions involved—will be dealt with by my noble friend on the next amendment. I am talking not about that, but about our old friend "sole or main".
The Government have said that there must not be discrimination or inducement short of dismissal if the "sole or main purpose" is to discriminate. We say that the provision should simply say "purpose", not "sole or main purpose", for several reasons. The most important reason is that it is unenforceable, in practice. Once one says "sole or main", the employer can say, "That wasn't my main purpose; it was just a passing purpose. It is true that as a result of this, people do not have collective bargaining rights and cannot have grievances any more. It is true that a lot of people dropped out of the union, but that's incidental. My main purpose was to improve industrial relations or some other thing". There is nothing in the provision to say what that other thing should be. Making the provision unenforceable is not what the court wanted the Government to do.
The employer could do many things if the provision did not say "sole or main", but simply "purpose", which is what we want. The argument of the Government against our attempt to take "sole or main" out of the Bill, if I understand it so far, is that it would unfairly restrict the ability of British employers
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to maintain and improve their efficiency. We never get examples of what British employers will not be able to do if the Bill says "purpose", not "sole or main purpose". I would like to know.
Suppose an employer wants to promote someone because he thinks that they are a better performer than someone else. So long as he does not discriminate—so long as it cannot be shown at a tribunal that the only people whom he promotes are non-unionists—what is the problem? It is only if he has the nefarious purpose of an undercover desire to discriminate against trade unionists that he cannot do what he wants to do.
Suppose he wants to give plus payments based on performance. Suppose he wants to rejig the joint valuation scheme. No one is preventing him from doing that—you could do that in unionised and non-unionised places of work. There is no reason why certain aspects of the relationship between the employer and the individual worker should not be subject to collective bargaining—and many agreements have that provision. Collective bargaining does not count for everything anywhere. So I can see no reason, if the amendment was accepted, that it would prevent in any way a British employer keeping his organisation up to date. But, it would do something to prevent some discrimination. Therefore we ask the Government to consider the matter again. I beg to move.
Baroness Turner of Camden: My Lords, we return to this issue because it is an important part of the Bill. Part 3 is about inducements to workers made by employers to make them abandon union representation. As it stands, the Bill would allow an employer to plead that offering inducements to abandon union membership or activities or the right to be represented was not his sole or main purpose. The words "sole or main" give the employer a loophole to construct all kinds of other reasons, once challenged at a tribunal. The Select Committee on Human Rights has already drawn attention to the problems that this matter could raise and the Government have been inclined to agree that, in any event, the whole issue should be kept under review.
The Third Reading presents a last chance, as I see it, to try to get the wording right—and by that I mean, beyond challenge, because I do not believe that it is beyond challenge now. What is wrong with having wording that simply refers to the "purpose" of the employer, as suggested by my noble friend in moving the amendment? I hope that my noble friends on the Front Bench will reconsider their attitude, because the matter is important.
Baroness Miller of Hendon: My Lords, the noble Baroness and the noble Lord have pursued this amendment throughout the passage of the Bill. The reasons why it cannot be accepted that have been given previously are still valid. They are reasons with which I entirely agree. It would be too rigid and too prescriptive. It would mean that there could be no deviation whatever, for whatever cogent reason there
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may be for an individual employer and employee to vary a collective agreement made with the union, or for that matter, for an individual firm, or branch to enter into a separate agreement with all of its employees, varying a collective agreement affecting a whole industry.
I have the greatest respect, admiration and, indeed, affection for the noble Baroness. But her attitude to the immutability of a collective agreement reminds me of the Rubaiyat of Omar Khayyam:
"The moving finger writes; and, having writ, moves on: nor all thy piety nor wit shall lure it back to cancel half a line, nor all thy tears wash out a word of it".
Collective agreements are not written by the moving finger of fate nor are they set in concrete. There will undoubtedly be occasions when employers and employees may find it necessary and reasonable to enter into arrangements that vary from some collective agreement.
In a free society there is no reason whatever why they should not be allowed to do so. There is no reason why they should be bound by a rigid regime based on the principle that the union knows what is best for individual workers or for their employers.
I am not going to cite specific examples, but your Lordships will be aware of instances where strict adherence to demarcation lines have resulted in industrial disputes and even inter-union disputes—in one set of cases contributing to the demise of the ship-building industry. It may be necessary to depart from a collective agreement to allow for more flexible working, either as to hours worked or flexibility over the tasks to be performed.
If the amendment is carried it would mean that there could be no variation from a collective agreement, however valid, however necessary and however urgent the need. I also have strong personal reasons for supporting the wording as it now appears in the Bill. Perhaps my one and only historical claim to legislative fame is, or was, Section 17(4) of the 1999 Act, which specifically permitted variations from collective agreements under clear and strict conditions.
Those conditions expressly prohibited variations which might inhibit a worker from being a member of a union, or from supporting a recognition vote, or from participating in union activities. In that respect, I had anticipated by some five years the decision of the European Court of Human Rights in the cases of Wilson and Palmer.
This amendment was designated by the TUC as "the Miller amendment" when it immediately demanded its repeal. It will in fact be removed from the statute book when this Bill is passed, the section never having been brought into effect by the Government.
Throughout the passage of this Bill, and particularly when I reintroduced the Miller amendment in Grand Committee, the Government have insisted that the provision to which they had solemnly bound themselves in a compromise agreement made with me at the beginning is that it would be covered by the
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inclusion of "sole or main", which they say means that some variations from a collective agreement can be definitely permitted.
I want to quote the words of the noble Lord, Lord Sainsbury, in response to my amendment. He said:
"To motivate employees, all sorts of performance pay systems are in force . . . We have no desire to restrict employer freedoms in this area, as long as their actions are driven by the right business motives. We believe, however, that the existing wording of these clauses, including Clause 28, already provides the necessary safeguards and flexibilities".—[Official Report, 15/6/04; col. GC148.]
I promised the Minister that I would carefully consider his remarks, as I always do, and in fact during the Recess I had a very useful meeting with the noble Lord, Lord Triesman, and subsequently some discussions with officials at the DTI. I have again been reassured that the use of the words "sole or main" in the Bill absolutely ensures that bona fide agreements between employers and employees varying collective agreements are still permitted as long as they are for genuine business motives and do not inhibit a worker's rights to belong to a union or to engage in its activities. I have also been assured by the noble Lord, Lord Triesman, that the Government have had their opinion confirmed by counsel.
Finally, I have been promised that the Minister, when he replies to the debate, will confirm the Government's and counsel's interpretation of the legal position as well as their attitude stated in Grand Committee. I look forward to hearing the Minister repeat his rejection of this amendment and re-assertion of the principles of freedom of negotiation that I had previously established with the Government in the 1999 Act.
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