Union communications with workers after acceptance of application
Employment Relations Bill
10:45 am
Mr Henry Bellingham (North West Norfolk, Conservative)
I beg to move amendment No. 18, in
clause 5, page 5, line 24, at end insert—
'(9) The CAC must at all times keep a list of persons considered to be suitable independent persons, which it must make available to employers, relevant workers and unions immediately on an application under sub-paragraph (2).'.
Mr George Stevenson (Stoke-on-Trent South, Labour)
With this it will be convenient to discuss the following:
Amendment No. 19, in
clause 5, page 5, line 24, at end insert—
'(10) Unions, the employer and relevant workers shall have the right to veto the decision of the CAC following the appointment of the CAC of a suitable independent person. In this event, the CAC must appoint an alternative person as soon as reasonably possible.'.
Mr Henry Bellingham (North West Norfolk, Conservative)
We are making very good progress under your chairmanship, Mr. Stevenson, which is extremely encouraging. We are racing ahead.
Clause 5 is a long clause about union communications with workers after the acceptance of the application. The amendments would add new subsections (9) and (10) to the clause. More detail is needed about who the independent persons are. I am not an expert, unlike some members of the Committee who know a lot about how these procedures work, but I do not have a real feel about the sort of people who have applied to go on the informal panel, or about the performance that has so far been achieved. The Minister said that there was an 80 per cent. satisfaction rate, but it was on a small poll of interested parties.
It would be helpful if the Minister told us who these suitable independent persons are. Is there a long waiting list to go on the panel? Is there a ready supply of such people? What sort of people are they? Are they academics, business men, retired trade unionists, ex-Conservative councillors or ex-Labour councillors? How does one get on the list? Does one have to be approved as an expert in labour relations? It would be useful to have more details. The Minister could enlighten us further on these matters. Amendment No. 18 is sensible and fair.
Mr Gerry Sutcliffe (Parliamentary Under-Secretary (Employment Relations, Competition and Consumers), Department of Trade and Industry; Bradford South, Labour)
I shall read out a list of the appropriate independent persons. They are the Association of Electoral Administrators, Election.com Ltd, Electoral Reform (Ballot Services) Ltd, which ran the 2001 Conservative leadership election, the Involvement and Participation Association, Popularis Ltd and Twenty-First Century Press Ltd.
Mr Henry Bellingham (North West Norfolk, Conservative)
Presumably, we are talking about members of those particular groups. It would therefore be useful to know how many people there are to choose from. However splendid those people might be, it is possible that the employer, the relevant union or the employees might not be happy with the individual in question. If that were the case, it would be fair for the CAC to accept their opinion and to appoint someone different.
The amendment would give complete parity. It is constructive, pragmatic and fair. It does not detract from subsection (1) and the subsections related to it, but would add two extra subsections that made the appointment procedure much fairer. I doubt that the provision will be used, except in extreme circumstances. However, in some cases, there might be controversy surrounding an individual and, if so, why should not unions, employees or employers be able to object?
On subsection (9), we ask that the CAC should at all times provide a list of persons considered to be suitable and make that list available to all concerned. The Minister might say that that list is available anyway, but the amendment would ensure that that was the case.
Mr Jonathan Djanogly (Huntingdon, Conservative)
Amendment No. 18 is important not only because it would provide that a list of independent persons should be kept, but because it implies that there should be transparency in the CAC, so that confidence in it is maintained. The list of such people, as my hon. Friend the Member for North-West Norfolk made clear, should be available not only to employers, but to unions and relevant workers. It would be helpful to hear from the Minister how the Secretary of State selects the pool of suitable independent persons, and about the controls that are exercised over who does the job. There is an important personal element in selecting a suitable person for a particular case.
Amendment No. 19 would extend the provision by giving the unions, the company and relevant workers the option to veto the appointment of a particular individual as a suitable independent person. I am sure that, in the vast majority of cases, the person selected will be suitable. However, there may be some situations in which one of the parties concerned objects to the appointment of a particular person. It might be that that person has a history in the particular sector that is not liked by one of the parties, or that they are thought to have some conflicts of interest in the case in question. Therefore, we feel that there should be the possibility of a veto. In such a situation, the CAC should appoint an alternative person as soon as reasonably possible. The amendments are straightforward and practical and should be acceptable to all parties involved in the process.
Mr Gerry Sutcliffe (Parliamentary Under-Secretary (Employment Relations, Competition and Consumers), Department of Trade and Industry; Bradford South, Labour)
I shall respond to amendments Nos. 18 and 19 together, because they both concern clause 5, which will give the union the right to communicate at an earlier stage with the relevant workers—the workers in a proposed or agreed bargaining unit. The union will be able to communicate with those workers from the point at which the CAC accepts its application. The statutory procedure already provides for unions to access the relevant work force during the ballot period. Access can take two forms. First, the unions' written material can be sent to the work force
by an independent person appointed by the CAC. Secondly, the unions are entitled to arrange workplace meetings.
By and large, those arrangements have worked satisfactorily. There have been few disputes about arranging such access, and businesses have not been disrupted as a result. The work force know more about the union's position, and are better placed as a result to make an informed decision when casting their votes.
Of course, that access is limited to the short period of the ballot—usually about 20 days. It is also late in the process. On average, ballots occur about four or more months after an application has been lodged with the CAC. The unions have argued that they should be entitled to some form of access at an earlier stage in the process. They point out that employers have unfettered access throughout the life of an application, and have many more weeks to put across their arguments.
The Government see the force of those arguments. Clause 5 therefore provides arrangements to ensure earlier access for the union. That access will start at the point when the CAC accepts a union's application as admissible. That is a sensible point at which to require access. Everyone will then know that the union's application is a runner and meets the basic criteria of the procedure. It will entail the sending of written material to workers' home addresses via an independent person.
It seems that Opposition Members are concerned about who those independent people might be. I gave them a list of appropriate companies and bodies. They are selected by public competition and are assessed on a variety of criteria, including their internal security systems and confidentiality procedures, to ensure that they are fit to undertake those tasks. They have to go through a rigorous process to be appointed.
I want to clarify an issue raised by the hon. Member for North-West Norfolk about the withdrawal of home addresses. I would not accept anyone having the right to withdraw their home address to try to escape from the Child Support Agency. It is vital that people honour their obligations. He chose a bad example, and I am sure that he will withdraw it. However, the question is whether it is reasonable for individuals to withhold home addresses. The CAC can have a view on that and, if a reasonable explanation is given, it can consider it.
Amendment No. 18 seeks to ensure that the CAC makes available to the employer, the union and the relevant workers a list of those persons or organisations qualified to act as independent persons for those purposes. I am sure that the hon. Member for North-West Norfolk will be pleased to be able to refer to the list. It includes the company that dealt with the Conservative leadership election in 2001—Electoral Reform (Ballot Services) Ltd.
During the ballot stage, a qualified independent person is appointed to conduct the ballot and to send written communications on behalf of the union to the workers in the bargaining unit. The Recognition and Derecognition Ballots (Qualified Persons) Order 2000,
statutory instrument 2000/1306, which was amended by SI 2002/2268, sets out the conditions that must be satisfied by an individual or a partnership in order to be a qualified independent person. Further, it names six professional balloting organisations as qualified independent persons. That information is obviously publicly available, and the organisations listed underwent a rigorous selection process for inclusion on that list. I hope that my explanation satisfies the hon. Member for North-West Norfolk about the quality and competence of those people.
Amendment No. 19 seeks to allow any of the parties a right of veto over the appointment of a particular independent person. Such an addition, I believe, is unnecessary. As I mentioned earlier, the independent persons are all professional balloting organisations with track records—in many cases, long ones—in conducting and scrutinising a range of ballots and elections. Those organisations take their independence extremely seriously. It is vital for their professional reputation that they are perceived to be impartial in the conduct of their functions.
Qualified independent persons have been sending written material on behalf of the union since the statutory procedure began in June 2000. 1 am not aware of any complaints about their handling of such communications. Of course, if any improprieties were ever to come to our attention, we would act swiftly to investigate and, if necessary, amend the order to which I referred to remove a person from the list. Indeed, the law states that, in order for someone to be an independent person, there must be no grounds for believing that that person's independence could be reasonably called into question.
Amendment No. 19 is therefore unnecessary. It is also undesirable. A right for any party to veto the appointment of a suitable independent person would introduce unwanted delay to the process. Indeed, an unscrupulous employer or union could, under the amendment as drafted, string out the process by simply vetoing the CAC's appointments repeatedly.
Amendments Nos. 18 and 19 are not necessary. Moreover, amendment No. 19 could be harmful by introducing delay. I hope that, in the light of that explanation, the hon. Gentleman will withdraw the amendment.
Mr Henry Bellingham (North West Norfolk, Conservative)
I am grateful to the Minister for that explanation. He said quite a lot about the way in which the organisations are approved by the Government but there has been less detail about the individuals who are members of these organisations. How many are there and how are they selected by the organisations? When he talked about impropriety, did he mean that the organisation would be struck off, or would action be taken against the individual?
Mr Gerry Sutcliffe (Parliamentary Under-Secretary (Employment Relations, Competition and Consumers), Department of Trade and Industry; Bradford South, Labour)
The organisation would be removed from the list. It is important that the organisation's recruitment process is rigorous and meets the relevant criteria because the reputation of the company, not just the individual, is at stake.
Mr Henry Bellingham (North West Norfolk, Conservative)
I am grateful to the Minister. I still feel that the amendments are totally balanced between all sides. I do not agree with him about the vetoing of the independent person, because it is highly unlikely that anyone would do that simply to waste time and to try to sabotage the process. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr Henry Bellingham (North West Norfolk, Conservative)
I beg to move amendment No. 2, in
clause 5, page 5, line 27, at end insert
'and so far as compliance is compatible with protecting the privacy of the relevant workers'.
Mr George Stevenson (Stoke-on-Trent South, Labour)
With this it will be convenient to discuss the following:
Amendment No. 3, in
clause 12, page 11, line 24, at end insert
', so far as that requirement is compatible with protecting the worker's privacy'.
Amendment No. 23, in
clause 5, page 6, line 11, at end insert—
'(1A) Before sending out any information received from the CAC under paragraph 19D (4) the appointed person must ascertain from each of the relevant workers whether he consents to the disclosure of his details to the union.'.
I remind the Committee that amendments Nos. 2 and 3 deal with individual privacy. We have had some debate about that. Clearly, we will not want to repeat points that have already been made. I fully recognise that amendment No. 23 deals with consent.
Mr Henry Bellingham (North West Norfolk, Conservative)
I will be brief. As I said that the outset I will try to be as concise as possible. The amendment would insert the phrase
''and so far as compliance is compatible with protecting the privacy of the relevant workers''.
As you rightly pointed out, Mr. Stevenson, it is linked with amendment No. 3, which amends clause 12. It is confusing and we are jumping around a bit, but we jumped around a bit when we dealt with the previous set of amendments.
Mr George Stevenson (Stoke-on-Trent South, Labour)
Order. I accept and understand that. The Clerks' ways are sometimes weird and wonderful but they are invariably right.
Mr Henry Bellingham (North West Norfolk, Conservative)
I agree 100 per cent. They do a superb job. I always defer to their wisdom and expertise. That is why amendment No.3 is identical to amendment No. 2. Amendment No. 23 amends clause 5 and it brings us back to the essence of privacy and the rights of individuals.
There is only one point that I would like to ask the Minister about. A particular employee may be adamant and passionate about his home privacy being protected. I was not trying to be flippant earlier. The CSA has the right to attach to someone's earnings but that would be through his place of employment. His place of employment and the details of his payroll would obviously be known to the CSA, but he might want to keep his private address confidential, for whatever reason. A female employee, for instance, might be concerned about her ex-husband coming to her address. There are many other reasons, each
private and specific to the employee in question. We are debating the broad issues concerning employee rights, which is why the amendment is important.
Mr Jonathan Djanogly (Huntingdon, Conservative)
I support the amendment but, in deference to your request, Mr. Stevenson, I shall concentrate on amendment No. 23. In order to protect workers from intrusions on their privacy, that amendment would require the appointed independent person to
''ascertain from each of the relevant workers whether he consents to the disclosure of his details to the union''
before he disclosed the information. If management agrees to disclose the information, or even if management has a problem but the CAC forces disclosure, why should the individual's right to privacy be overlooked? The clause concerns union access before balloting but what if someone is not a union member? There are no collective bargaining rights at that stage. The individual who is not a union member may well resent the union being given his name and address for the purposes of mailshots, as I would. Why should that person not have the right to say, ''I don't want my personal details to go to the union''? Whether or not they want to join the union, that right is a stand-alone right that should be preserved.
Mr Gerry Sutcliffe (Parliamentary Under-Secretary (Employment Relations, Competition and Consumers), Department of Trade and Industry; Bradford South, Labour)
I am mindful of the fact that we partly discussed such issues in connection with earlier amendments. I should like to return to the relationship of the CAC and the independent person, which we need to deal with. The individual does not have to receive information directly from the union, because it comes via the qualified independent person. The independent person sends out information on behalf of the union, which makes amendment No. 23 redundant. Both the CAC and the independent person are quite strong on their independence and the way they protect data and the information that they divulge, for the reasons I mentioned earlier. We do not want to complicate the situation further, which is what the amendment would do, in that the qualified independent person would have to seek approval from individual workers to pass on their home addresses.
In the earlier debate, the hon. Member for North-West Norfolk asked whether the individual could just give the business address as the appropriate address. That would not comply with the employer's duty to disclose the home address, but it would be for the CAC to decide whether the failure to provide that address was reasonable. The question would concern the circumstances and factors surrounding the employer's request to offer another address, which the CAC has the power to consider.
The CAC takes seriously its responsibilities under data protection legislation, under which it is registered as a data controller. It adheres to all the provisions of the relevant legislation, including that personal data should be kept only for as long as it is needed and that appropriate technical and organisational measures should be taken to avoid any unauthorised use of such
information. All such work is evidence-based and conducted within the framework of the statutory recognition procedures, which have worked well.
The CAC has never received any complaints from a worker about unsolicited communications from a union. There is no need to add explicit references to privacy in the procedure. That could complicate matters further and lead to unnecessary disputes between the parties about the existence of any threat to privacy.
I notice that the amendment would ensure that no similar privacy considerations apply to the employer. The employer can send out as many written communications as he likes, regardless of whether the worker feels that such communications infringes his domestic peace and privacy.
Mr Jonathan Djanogly (Huntingdon, Conservative)
Surely at that stage, there is a fundamental difference. The employer has a legal duty to the employee, whereas the union has no legal responsibility, because it has not been recognised?
Mr Gerry Sutcliffe (Parliamentary Under-Secretary (Employment Relations, Competition and Consumers), Department of Trade and Industry; Bradford South, Labour)
The employer has the names and the opportunity to give any material to the employees. A balanced, independent judgment will be made on whether individuals want to recognise the union. Employers have an unfettered right to write as many times as possible.
Amendment No. 3 concerns the power to widen the number of methods whereby the independent person can communicate the union's material directly to the workers in the bargaining unit. Employers have that power, too. This has been an important debate as it has highlighted the difference of attitude towards such processes between the Government and the Opposition. Amendment No. 23 is redundant because there is no direct communication between the union and the individual worker. As the debate has progressed, there seems to be some mistrust of the union's motives—it has recruited a number of members—in its consideration of the next stage. That is a fundamental difference that will scar our discussions. In the light of my explanations, I ask the hon. Member for North-West Norfolk to withdraw his amendment.
Mr Henry Bellingham (North West Norfolk, Conservative)
That was a bit of a sour note from the Minister because we are not anti-union at all. We feel strongly that the current position is a fair balance between employers and employees. Any measures that would move the balance—even slightly, one way or the other—are a matter for debate. That, crucially, is what the Opposition are for, and we shall scrutinise the Bill. In the light of what the Minister said, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr Henry Bellingham (North West Norfolk, Conservative)
I beg to move amendment No. 21, in
clause 5, page 6, line 5, after 'unions)', insert
', employer or non-unionised workers'.
Mr George Stevenson (Stoke-on-Trent South, Labour)
With this it will be convenient to discuss the following:
Amendment No. 22, in
clause 5, page 6, line 10, after 'unions)', insert
', employer or non-unionised workers'.
Mr Henry Bellingham (North West Norfolk, Conservative)
The amendments would impose and establish a fair balance. On page 6, line 5, the Bill reads:
''During the initial period, the appointed person must if asked to do so by the union (or unions) send to any worker . . . the information supplied by the union (or unions) to the appointed person.''
The amendment would add ''employer or non-unionised workers''. That seems perfectly fair, and is not particularly controversial.
Mr Gerry Sutcliffe (Parliamentary Under-Secretary (Employment Relations, Competition and Consumers), Department of Trade and Industry; Bradford South, Labour)
Yes, it is.
Mr Henry Bellingham (North West Norfolk, Conservative)
It is not. It is a modest and sensible request. I should like the Minister to consider it sympathetically.
Mr Jonathan Djanogly (Huntingdon, Conservative)
The amendments are basically about treating people fairly and equally. The right of unions to have the appointed independent person distribute information on demand should be extended to non-unionised workers. Let us assume that the company wants recognition. What if a group of workers do not want effectively to be unionised—they would not be union members, but they would be unionised through the recognition agreement—or forced into a deal between the company and the union? What if those workers do not like a particular union that is applying for recognition and want another? Why should they not be able to write to other workers and put their case forward? We keep returning to the point about carving up responsibility between unions and companies. The reality is that the situation is often more complicated, and the amendments recognise that fact.
Mr Gerry Sutcliffe (Parliamentary Under-Secretary (Employment Relations, Competition and Consumers), Department of Trade and Industry; Bradford South, Labour)
I can deal with that point quickly. The amendments intend to wreck the whole relationship between the union, which is the external force, and the employer and employees. The employer has the right to discuss recognition issues with his or her employees, and people who do not want to join the union have a right to discuss the issues with their colleagues.
Mr Jon Cruddas (Dagenham, Labour)
That right is over and above direct communication, which includes face-to-face communication or visits to a person's home. A whole range of techniques could be deployed over and above whether there is parity on the direct communication of certain literature. The issue is the
imbalance in the system, which will continue to exist even with the Government's amendment of the process, rather than the search for bogus parity, which is a wrecking device for the whole procedure.
Mr Gerry Sutcliffe (Parliamentary Under-Secretary (Employment Relations, Competition and Consumers), Department of Trade and Industry; Bradford South, Labour)
My hon. Friend is entirely right and I need not say more. In light of that explanation, I hope that the hon. Member for North-West Norfolk will withdraw the spurious amendment. I do not want to continue on a sour note. I want to return to the original understanding that, even though we may disagree, we should do so in the right spirit. However, my patience is starting to wane with the spurious amendments being put forward.
Mr Henry Bellingham (North West Norfolk, Conservative)
The last thing that I want to do is to sound discordant notes or to undermine the harmony of the Committee. However, there will be areas on which we feel strongly, and there should be parity on all sides. Amendments No. 21 and 22 sought merely to achieve balance. The Minister has made his point and I am a realist. As much as I would like to press the amendment to a vote, there is no point having a wipe-out in Committee because we may want to return to the issue on Report or in another place. Bearing that and the Minister's words in mind, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr Henry Bellingham (North West Norfolk, Conservative)
I beg to move amendment No. 24, in
clause 5, page 6, line 11, at end insert—
'(1B) If information is sent out by unions, employers or non-unionised workers which is subsequently proved to be inaccurate or to contain misrepresentations, the CAC shall declare the resulting ballot invalid and any resulting union recognition shall be quashed.'.'
I shall deal with the amendment briefly as the sitting is about to be adjourned. The amendment is perfectly fair and does not warrant lengthy discussion.
Mr Jonathan Djanogly (Huntingdon, Conservative)
If the information is sent out by the unions, employers or non-unionised workers, and it is subsequently proved to be inaccurate or containing misrepresentations, the CAC should declare the resulting ballot invalid.
It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at half-past Two o'clock.
Stevenson, Mr. George (
Chairman
Atkins, Charlotte
Atkinson, Mr. Peter
Bellingham, Mr.
Bruce, Malcolm
Cruddas, Jon
Djanogly, Mr.
Foster, Mr. Michael Jabez
Lyons, Mr.
Owen, Albert
Picking, Anne
Sheridan, Jim
Stewart, Ian
Sutcliffe, Mr.
Tynan, Mr.
Williams, Hywel