Rob Marris: I shall not address the hon. Gentleman's recent remarks. That was not why I wanted to intervene, and I am sure that the Minister can deal with them. Does the hon. Gentleman think that putting a 14 working days provision into the Bill would not, from a trade union learning rep's point of view, become the longstop the other way? Representatives would argue to their employers that they were entitled to at least 14 days, and would be off to the tribunal if they did not get it, which is what the hon. Gentleman fears.
Mr. Hammond: The hon. Gentleman is a lawyer, and I would have thought that he would be able, if he exercised his mind for a moment, to think of many examples in our legal code where matters are dealt with by this type of structure. One example might be an amount that is reasonable in all the circumstances that cannot exceed £10,000. Another would be a number of days that are reasonable but do not exceed 20 days. A third would be responding to something within a period of time that is reasonable in all circumstances, but in any case is not longer than six months. There is no difficulty with the architecture if the principle is agreed.
Norman Lamb: I am with the hon. Gentleman in terms of the principle behind the amendment because it would impose a limit on the exercise of those rights. I want better to understand the distinction between the concept of reasonableness contained in subsection (8) to which the Minister alluded, and that contained in the amendments. The hon. Gentleman suggested earlier that clause 8 would be interpreted only in circumstances in which the right was challenged in a tribunal. Surely it is the case with the amendments that the right would become relevant only if it were challenged in a tribunal?
Mr. Hammond: The hon. Gentleman is absolutely right, and I am grateful for his statement of support for the amendment, which I take to mean that he would abstain if there were a Division.
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Norman Lamb: I do find this rather tedious. In the discussion on the previous amendment, the hon. Gentleman made it clear that he had recognised as a result of the debate that the amendment that he had tabled should not necessarily be inserted in the Bill because he recognised that Government Members had points about its limiting the Bill to one representative for each establishment. I accepted the logic of his remarks, and therefore did not vote for an amendment
The Chairman: The hon. Gentleman cannot be too precious about this. I am sure that he will have an opportunity to make a contribution in which he can defend how he intends to vote or has voted. He must address the point in his intervention, and we are drifting far from that.
Mr. Hammond: I have lost my train of thought, but I think that I am responding to the hon. Gentleman's intervention. He is, of course, right, and I hope that he will not mind that we occasionally have a joke at the expense of his party. It is a tradition in Standing Committee, and I am sure that he will get used to it. By alternating their attendance in Committee, he and his hon. Friend the Member for Weston-super-Mare (Brian Cotter) are providing us with plenty of opportunities.
The hon. Gentleman is right that inserting the backstop of 14 days into subsection (8) could be tested or enforced only by application to a tribunal. It is probably common ground that where a specific provision limits the time to 14 days, it is likely that most reasonable people will not insist on testing it at tribunal. The problem with the tribunal test comes where the definitions are so loose that they are open to wide interpretation.
I accept that the ACAS code will help to limit the scope for interpretation, but I suggest two things to the Minister. First, having a backstop behind the definition in the Bill, which is what is reasonable in all the circumstances having regard to the code, is good in itself. Secondly, regardless of what is reasonable in all the circumstances, and having regard to the code, there ought to be a maximum vulnerability to paid time off for a learning rep if there is no agreement by the employer. I do not understand what the Minister has to fear if learning reps will be as self-evidently beneficial to the employer as he is telling us.
Because of the nature of the animals that we are, it is easy to become adversarial. We would not be here if we were not, although the hon. Member for North Norfolk does not like it. Nevertheless we are talking about cases at the margin. I am prepared to concede that in many cases, hopefully most cases, employers, even those who are sceptical, will be pleasantly surprised by the effect of having union learning reps in their workplace. Equally, we must be realistic and acknowledge that there will certainly be some cases in which the appointment of union learning reps, perhaps through no fault of their own, contributes nothing because of the environment in which they operate. I seek to limit the exposure of employers in those circumstances.
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The amendments were tabled to probe the Minister and to find out whether he can tell watching employer representative bodies how he will ensure that there is a proper limit on the amount of time off and that it is not abused, even in the sort of extreme cases that I have used as illustrations.
Norman Lamb: I am frustrated that this is only a probing amendment because it will deny me the opportunity of abstaining.
I support the principle behind the amendments. I cannot see a distinction between introducing reasonableness as the amendments would do, and the concept of reasonableness in subsection (8). At the end of the day, only the tribunal will determine whether the amount of time taken off in a specific case was reasonable. The amendments have merit, because they would reinforce the provision and make it clear to anyone wanting to read them--employers and employees--that the time off is limited in terms of reasonableness with a longstop of 14 days.
I did not listen carefully to every word uttered by the hon. Member for Runnymede and Weybridge, but it is worth noting that one of the amendments would limit time off for an employee who seeks the services of the union learning representative under subsection (4)(2B). Again, it seems sensible to introduce the concept of reasonableness there. I agree with the principle of the amendments, even though I cannot abstain on them.
Mr. Mark Prisk (Hertford and Stortford): I support the amendments. The underlying principle that is important to all employers, particularly in business, is certainty. That is what my hon. Friend is trying to bring to the process.
The Minister commended the principle of reasonableness elsewhere in the Bill. We all support the idea of learning in the workplace, but when an open-ended time span is created, there is a danger of undermining support for the principle from a wide variety of employers, large and small. That is why the amendments are right in trying to introduce a degree of certainty at different points in the clause. The danger is that an open-ended commitment, or open cheque book, may be counter-productive in promoting best practice and I ask the Minister to bear that in mind. We are more likely to see the promotion of learning in the workplace if we introduce some certainty instead of the open-ended commitment in the Bill.
John Healey: Amendments Nos. 223, 224 and 225 relate to time off for union learning representatives to undertake their duties and to time off that an employee may take to access their services.
Amendment No. 223 seeks to restrict to 14 the number of working days that union learning representatives may take off each year to undertake their duties. As the hon. Member for Runnymede and Weybridge made it clear, that figure was taken from the regulatory impact assessment, which accompanies the Bill. In that, we estimate that union learning representatives would need five days for initial training and nine days after that each year to carry out their duties and undertake any further training.
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The figures in those calculations are averages, and in some instances union learning representatives will need to take less, or more, time off. For example, if an employer has undertaken a major restructuring exercise or is seeking Investors in People status, a learning representativesmay need to spend more time than average advising union members on their likely training needs.
I realise that the hon. Gentleman has attempted to cater for occasions where more than 14 days are required by including the provision that it can be exceeded if the employer gives written consent to that over-run of the time. In effect, that would be an extra stage, and an extra bit of paperwork, in the process, and the clause was deliberately drafted to minimise the burdens placed on employers. I am reluctant to take a step that goes further than the Bill, and I am sure that my hon. Friends would not wish me to do so.
Mr. Hammond: The Minister says that the clause was drafted deliberately to minimise burdens and suggests that writing a letter is an onerous burden. However, it should be compared with an extra day, two days or three days of paid time off, which, from memory, the regulatory impact assessment costs at £12.67 an hour. That would be a pretty expensive letter. If I were an employer I would rather write the letter than pay for another seven hours at £12.67.
John Healey: The process in the clause is intended to strike a balance between being effective and not being too burdensome on business. The hon. Gentleman rightly recognised the role of the ACAS code of practice, which has worked well. Why invent a new approach when we have an established approach that has worked well, has not been abusedone of the hon. Gentleman's concernsand has acted as a limit to demands on time off for other types of lay officials? That has been demonstrated by the limited number of applications that are made to employment tribunals as a result of disputes and problems over the operation of the time off provisions for other lay representatives.
In response to the hon. Member for Hertford and Stortford, it simply is not true that the clause proposes an open-ended time span. The time off must be reasonable in all circumstances and, therefore, in relation to the employee, the employer and the needs and demands of the business. The fact that the arrangements must be reasonable provides safeguards against union learning representatives taking excessive time off. They draw on the established model, which has served us well through ACAS.
Amendment No. 224
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