Clause 18 - Entitlement to vote in ballot
Employment Relations Bill
9:45 am
Mr Gerry Sutcliffe (Parliamentary Under-Secretary (Employment Relations, Competition and Consumers), Department of Trade and Industry; Bradford South, Labour)
There were in fact three cases: London Underground Ltd. v. RMT, Midland
Mainline Ltd. v. RMT and Westminster city council v. Unison. Those cases raised issues that reflect why we are in this position. In the case of Midland Mainline v. RMT, the union sent out notices stating that all RMT members employed in the grades of operational train crews were involved, when in fact only some of the members in those grades were balloted. It was clearly about the reasonableness of the information provided.
We are trying to clarify the meaning of section 227 of the Trade Union and Labour Relations (Consolidation) Act 1992. Section 227 defines those individuals to whom the union must accord an entitlement to vote in an industrial action ballot. It requires the union to ballot those members
''who it is reasonable at the time of the ballot for the union to believe will be induced to take part . . . in the industrial action in question.''
The phrase ''will be induced'' is unclear. That was brought to light in the case of Midland Mainline v. RMT. In its judgment, the Court of Appeal stated that the phrase related to any union member who might take part in the action even though they had not been induced to do so by the union. In other words, the union had to predict how members whom it had no intention of inducing to take industrial action might act if there were a strike, and had to ballot them if it had reason to believe that calling the action could prompt them to take part. It is difficult, if not impossible, for unions accurately to forecast the reactions of the members whom it does not induce.
This clause makes it clear that the entitlement to vote applies to those who are likely to be induced ''by the union'', which was the accepted interpretation of section 227 before the judgment in Midland Mainline v. RMT. The clause removes ambiguity from section 227, and improves the way that the law reads. It does that by ensuring that the requirement placed on the union is reasonable.
I move now to the point made by the hon. Member for Huntingdon about the definitions of small and major lapses. If there were an issue outside the clearly defined rules that the clause introduces, it would be up to the courts to decide the gravity of the position. In light of the three relevant cases, we think that minor infringements need to be considered. That is the basis of the reasonableness of the clause. If there were an extensive breach, the employer would have the right to appeal to the courts.