Code of Practice: Access to Workers during Recognition and Derecognition Ballots

– in the House of Lords at 8:50 pm on 22nd May 2000.

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Photo of Lord Sainsbury of Turville Lord Sainsbury of Turville Parliamentary Under-Secretary (Science and Innovation), Department of Trade and Industry, Parliamentary Under-Secretary (Department of Trade and Industry) (Science and Innovation)

My Lords, this draft code of practice forms part of the statutory recognition procedure laid down in Section 1 and Schedule 1 of the Employment Relations Act 1999. These provisions of the Act will come into force on 6th June.

The statutory procedure provides for ballots to be held by the Central Arbitration Committee (the CAC) in certain circumstances to ascertain the level of support for union recognition among workers in the relevant bargaining group. The statute provides also for derecognition ballots to be held. The ballots can be held by post, at the workplace or by a combination of those two methods.

It is important that those ballots are held fairly and properly. The statute therefore places various duties on the employers to ensure the orderly functioning of the balloting process. Paragraph 26 of Schedule 1 places three duties on employers who are involved in recognition ballots. Paragraph 118 lays down identical duties in respect of derecognition ballots.

The three duties can be summarised as follows. First, there is a general duty on the employer to co-operate with the union or unions involved and to co-operate with the person appointed by the CAC to conduct the ballot. Secondly, the employer must provide the CAC with the names and home addresses of the workers involved. Thirdly, the employer must give the union,

"such access to the workers constituting the bargaining unit as is reasonable to enable the union to inform the workers of the object of the ballot and to seek their support and their opinions on the issues involved".

The interpretation of what constitutes "reasonable access" in practice is obviously a vital matter. The schedule therefore expressly provides for the Secretary of State to issue a code of practice concerning this third duty using his powers under Section 204 of the Trade Union and Labour Relations (Consolidation) Act 1992.

The code before the House is designed to provide practical guidance to employers, unions and the CAC on what is meant by reasonable access. The code can be taken into account by the CAC if it is asked to determine complaints made by unions that they have been denied reasonable access.

We undertook detailed consultations before producing this draft code. We took the opinion of ACAS. We also informally consulted the CBI, TUC and other interested parties. Those prior discussions culminated in the publication in February of a consultation document containing an earlier draft of the code. We received over 70 responses. The draft before us today incorporates many points and revisions which consultees suggested.

This code provides invaluable guidance to all concerned. Recognition and derecognition ballots are potential areas of conflict. The code of practice is drafted in that knowledge. It gives helpful guidance to minimise the scope for conflict over a key aspect of the balloting process. It is fair, workable and sufficiently flexible to cater for individual circumstances. I commend it to the House. I beg to move.

Moved, That the draft code of practice laid before the House on 8th May be approved.--(Lord Sainsbury of Turville.)

Photo of Baroness Miller of Hendon Baroness Miller of Hendon Conservative

My Lords, we are discussing here the draft code of practice designed to implement the procedures set out in Section 1 and Schedule 1 of the Employment Relations Act 1999. That section and schedule and the code of practice will be the means of imposing trade union recognition on firms with more than 20 employees.

Apart from defining or changing the so-called "bargaining unit", the schedule also protects the workers against detriment or dismissal for exercising their rights under the schedule, and provides the procedures for derecognition, which I suppose is only fair.

It is worth noting that the liability to the recognition procedures kicks in for firms employing as few as 21 workers. That is despite the fact that during the passage of the Bill we tried to reason with the Government and to persuade them to make the starting point 50 employees, which was and still is in line with the EC definition of a "small" firm. That is more gold-plating.

During the passage of that Bill, the Government also refused to exclude directors and shareholders from the head count, thus running the risk of catching small family firms in the net.

During the passage of the Bill, the schedule grew from 26 pages containing 88 paragraphs to a massive 60 pages containing 172 paragraphs. All those additions were as a result of government amendments which were designed to accommodate constructive suggestions made by unions, employers and others, which only shows how poor the Government's brief for the original legislation was for it to have to grow in that way. It was 172 paragraphs. The Ten Commandments contain only 16 paragraphs.

The vast majority of Acts passed by Parliament are shorter than the massive set of procedures that quite small firms are supposed to assimilate and observe. The procedures are especially difficult for small firms, particularly as regards access to employees and at the place of work.

A TUC survey called "Focus on Recognition" published in January 2000 reported that 75 deals were signed in the 10 months between January and October 1999 and claimed that that was the highest number ever. Four out of 10 unions reported their belief that the impending statutory recognition rights had been influential in encouraging employers to set up voluntary arrangements before the complicated statutory procedures come into force. I am inclined to agree that that is probably what happened. It may very well be that the complications and potential disruption of the procedures is one of the reasons that there has been such a spate of voluntary recognition agreements since the Act was passed.

The general purpose of the code of practice, as stated in the introduction, is to give what it calls "practical guidance" about the issues that can arise when an employer receives a request from a union for access to his workers at the workplace and/or during normal working hours.

Paragraph 10 says that the code wants to encourage responsible behaviour by both parties--that is, the employer and the union--and that this should avoid any acrimony. In that spirit, and in the hope that the code will indeed achieve those aims, we on this side of the House will not oppose this measure and we wish it success in its aim of not prejudicing industrial relations.

Photo of Lord Wedderburn of Charlton Lord Wedderburn of Charlton Labour

My Lords, I thank the Minister for explaining the code and for presenting it to the House. I congratulate the Minister and the Government on the care that went into preparing both the code of practice and Schedule 1. What criticisms there would have been had they left out a number of essential paragraphs.

We are discussing a code which deals with a trade union's right to have reasonable access to workers who are about to vote in a recognition ballot. Less than that would obviously be quite unfair. Therefore, by definition, the problems arise only when the employer is resisting collective bargaining. Therefore, the code deals with the abnormal, rather than the normal, case because I believe that when the Act is fully operational, most employers will make arrangements with appropriate unions for consultation and bargaining.

But for other employers, the procedures which we are discussing and the code will apply in a context of protracted disagreement between those parties. The code of practice seeks the very desirable aim--and I want to stress that, in view of my subsequent remarks--of the parties finding agreement on the ways in which the right of union access is to be implemented. That may be a demanding task but it is an extremely desirable target.

I am well aware too that the Government have consulted many parties, including the TUC and the CBI. But such unpublished travaux preparatoires will not be seen by the courts or by the CAC. The Minister's words in Hansard today are, therefore, of very great importance.

I offer two comments to the Minister. First, the code purports, as it should, to set out broadly the legal structure bequeathed by the 1999 Act; and so it does, except in one rather important point, and since this might be thought to be a legal point, I gave my noble friend notice of it. It refers to the question of the sanctions where an employer has failed in his duty--here, the duty to accept reasonable access--and where an order of the CAC has been made to him to fulfil his obligations but that has not been done.

At this point in the procedure the Act provides differently for the recognition procedure from the derecognition procedure. In paragraph 49, especially, the code does not avert to that. In both cases the CAC has a discretionary power either to grant recognition or not to derecognise. That is a discretion. In the derecognition procedure, a further sanction is attached that the order of the CAC can be,

"recorded in the county court"-- and--

"enforced in the same way as an order of that court", with all the possibilities of contempt of court thereby entailed.

This is not a trivial point. It could be extremely important in regard to an employer--no doubt a rare one--who sets out to defy the order of the CAC. There was a different procedure in the derecognition area which was common to both halves of the schedule, as it were, when the Bill was first printed. That is something that is not understood in many quarters and it would be desirable if the code could say something about it, at least in its second edition.

My second point is that there are various places where the draft code may go rather further than a document that is merely to be taken into account without creating new rights and obligations. That is partly a matter of style. With great respect, the draftsman is not accustomed to setting down trade union rights; he is more used to trade union immunities. Perhaps the style could be improved by looking at the codes and rules of our partners on the Continent, such as union rights in the Italian workers' statute of 1970. The statutory right of the union is to,

"such access to the workers constituting the bargaining unit as is reasonable to enable the union ... to inform the workers of the object of the ballot and to seek their support and their opinions on the issues involved".

Of course, it will be beneficial and valuable if the union and the employer can agree on the details of the access process, but the right of reasonable access does not depend, as such, upon the agreement of the employer. Occasionally, the code gives a different impression. For instance, it suggests that the employer will reasonably want to give prior permission before union officials enter his workplace and talk to his workers. With respect, the exercise of the statutory right of reasonable access has nothing to do, either in theory or in practice, with the employer's prior permission, although, of course, it may be unreasonable if the union rejects the employer's suggestions.

The code also says:

"The parties will need to establish agreed limits on the duration and frequency of the union's activities".

In my respectful submission, that is the addition of a new right. There is no need whatever for the parties to agree upon the limits, and so on, for access. There is a need for the union to demand only reasonable access. Whether or not there is an agreement with the employer, a union may well, in a state where relations are not particularly good, demand access on terms which the CAC finds to be reasonable.

The code goes further into prescriptive detail, such as that,

"the employer should allow the union to hold one meeting of at least 30 minutes in duration for every 10 days of the access period".

That is perilously close to creating rules that are not merely interpretative of the schedule. Sometimes the code's theory is not quite matched by its prescriptions. It says that workers must not be exposed to "intimidation or threat", which is a desirable addition to the text. But later it suddenly imposes a positive duty on the union to "dissociate" itself from any anonymous material and if that material favours recognition to,

"formally repudiate it, informing all the workers in the bargaining unit accordingly".

Everyone knows that anonymous documents are produced in industrial disputes. Sometimes, perhaps often, they are produced in the face of what workers feel is intimidation by management. I ask my noble friend whether in the second edition he can look at this aspect. There is no reason at all why the union should be made to repudiate a document that may involve facts of some importance. In my view, this paragraph of the code may well risk being beyond the competence and may be ultra vires. However, the draft code is to be welcomed, and in my submission, welcomed in the context of the fact that it applies only in the 20 days of the ballot period. There may well be times when we want to look at the pattern of industrial relations when we think that access should be extended to a time rather anterior to those days, but that is another story.

Photo of Lord Sainsbury of Turville Lord Sainsbury of Turville Parliamentary Under-Secretary (Science and Innovation), Department of Trade and Industry, Parliamentary Under-Secretary (Department of Trade and Industry) (Science and Innovation)

My Lords, I well remember the discussion with the noble Baroness, Lady Miller, about the number of employees. She passionately defended the fact that it should be 50, but we settled on 20, which is the basis of this discussion. I am delighted that the noble Baroness agrees that every effort should be made to provide a framework to reduce acrimony in these difficult circumstances.

I thank the noble Lord, Lord Wedderburn, for raising his point with me beforehand as it was not one on which I had focused in any great detail. There is a discrepancy between the procedures that can follow in a recognition and a derecognition situation. That is because where the derecognition is asked for by the workers, the position that the company may take is not clear. In that case, the matter could go both ways, whereas in the other circumstance, when the company asks for derecognition, or the company opposes recognition, the company's position is quite clear. In this specialised case it is not, and that is the reason for the difference on this issue.

I take my noble friend's point about the style and we will look at that in relation to a second edition. On that basis I commend the code of practice to the House.

On Question, Motion agreed to.