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Lord McCarthy: No, I can deal with this, but it will be confusing to start with. I hope that the Government will not accept Amendment No. 39. In cases of attempting to gain trade union recognition by using public bodies, it has always been accepted that the public body be present in the organisation and have powers to talk to the parties involved, and that any surveys, ballots and counting will be done in the firm's time. Otherwise, it would be monstrous to insist upon the 40 per cent rule. If you say that you want a bare majority, it may be possible to do that outside the firm, but people may say that you have only a minority of people, 15 per cent of the labour force, and by a bare majority they have voted in order to get recognition, and we would agree with that. Therefore, there should be a high level of participation. That is what I was trying to say in relation to the previous amendment. If you suddenly say that the access has to take place outside the hours that employees are required to work, and you institute the 40 per cent rule, that will put an enormous premium on the employer's side of the vote. That would do everything possible to make the vote a foregone conclusion. Of course we could not accept that. That is a nonsense.
Turning to my own amendment--Amendment No. 40--the object is to describe in more detail the ways in which the employer is expected to co-operate and the way in which that co-operation takes place. Paragraph 22(1) states:
"The first duty is to co-operate generally, in connection with the ballot, with the union (or unions) and the person appointed to conduct the ballot; and the second and third duties are not to prejudice the generality of this." Sub-paragraph (3) states:
"The second duty is to give to the union (or unions) such access to the workers constituting the bargaining unit as is reasonable to enable the union (or unions) to inform the workers of the object of the ballot and to seek their support and their opinions on the issues involved". All that must take place inside the firm, in the firm's time. The CAC has to be given the names of the representatives of the workers in the bargaining unit, and the CAC's job, via the ballot conductor, whoever he is, is to give out any information supplied by the
Secondly, we believe that there should be on the face of the Bill, not just in the code of practice, something about the facilities that the union enjoys during the campaign. The term "campaign" has not been used anywhere in this legislation; it is not in Fairness at Work. It will be a campaign. It was a campaign last time. The union will be making its case for the most part to non-unionists. It will be saying to the majority of workers who are not trade unionists, "This is why we think you ought to vote for collective bargaining". That will almost certainly be on the voting paper. The employer will reply to that, saying, "Nonsense, trust me, I'm your good employer and we are going to have a wage increase next week so you do not want to vote for this".
There will be a campaign. Therefore, as all the controls in this situation are in the hands of the employer, the employer controls the organisation, the hierarchy, the supervision; and the employer can always put his arguments across, as he should. We are saying that something should be on the face of the Bill about the facilities that the unions have in these circumstances. We are putting in small, moderate matters such as details of the facilities, where to hold meetings and so on.
The justification is that we know that in the past the kind of employer who got into this situation--we are not talking about the great majority of employers--and found himself in front of ACAS or the CAC resisted union access, frustrated union access, prevaricated and sent incomplete returns over and over again, as reflected in the reports of the legislation. In addition to the extra safeguards that the Government have put in paragraph 23 of Part IV of the Bill, we want those two things on the face of the Bill.
Lord Clinton-Davis: In conjunction with the considerations that we are now addressing, one has to read the provisions of paragraph 23, which my noble friend will acknowledge. I believe that my noble friend is seeking to avoid ambiguity and unnecessary recourse to the CAC. That is thoroughly desirable.
In relation to Amendment No. 39, that is possibly a matter, when looking at the provisions of paragraph 23, that can be obviated completely. The point made by my noble friend Lord McCarthy as to the provision of all employees constituting the bargaining unit is quite important in an election. It is something that is commonplace. I hope that my noble friend will not take exception to that.
Moreover, the details of facilities and the place or places of work also are significant in relation to the holding of meetings, which are, of course, an essential provision in relation to any electioneering. I hope that my noble friend will accept that that is complementary to the requirements that the Bill currently sets out.
Lord Wedderburn of Charlton: Before my noble friend replies, perhaps I can ask him to take the problem addressed by this amendment very seriously when we return to it on Report. Wherever in modern societies the law plays a part in pushing the employer a little further towards collective bargaining than he would go on his own a significant percentage of the employers involved tend to resist, at any rate if they have not had much experience of trade unions.
One can take examples from many systems in Europe or North America, but I mention one to illustrate what I mean. In the United States, where the obligation to enter into bargaining in good faith has been an obligation since 1935--I do not suggest that our Bill goes anywhere near bargaining in good faith--there have been phases of employer resistance, many of which have been very successful. However, the example from the United States shows how a high percentage of employers tend to move towards what is permitted by the law--they do not necessarily cross the border--and what the law suggests as a standard for their resistance.
In the United States, of course, matters take a particular colour from the constitution because the employer so often takes his stand on his constitutional right to free speech. Any resistance to what he is allowed to do in terms of communication to the workforce is often ruled out by limitations on free speech in constitutional law.
Will my noble friend consider the matter in that light: that is, when it is agreed that a high turn-out and a free vote--the CAC's preferred method--are important? It is also a question of some groups of employers, in the British circumstance, doing what they are not forbidden to do. Therefore, especially in this matter of facilities, my noble friend Lord McCarthy made a strong case which I hope the Minister will consider before we come to Report.
Lord Cavendish of Furness: Perhaps I may say a word in support of my noble friend's amendment. If I heard the noble Lord, Lord McCarthy, right this time, he helpfully blew out of the water the myth that the Bill is about partnership. He talked about the campaign in which there would be winners and losers; the tension and the reinforcement of the "them and us" culture.
He spoke also, as he has done often today, about the bad employers against whom employees need protection. On this side we acknowledge that there are such things as bad employers; it is idle to pretend otherwise. At Second Reading the noble Lord, Lord McIntosh, said that bad employers in this present climate would probably go out of business, but they also needed to be legislated out of business. There was therefore a belt and braces approach to this minority of bad employers. But we hear nothing about bad trade unionists. In fairness, if one says it is idle to pretend that
I therefore echo my noble friend Lady Miller in asking where is the matching responsibility and where is the protection for small business?
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