Seafarers’ Wages Bill [HL]

Debate between Lord Hendy and Lord Balfe

Wednesday 26th October 2022 Lords Chamber

[Lord Hendy (Lab)]

My Lords, I have added my name to this amendment, which goes some way to implementing one of the Government’s nine points in response to P&O Ferries’ shameful conduct. That point was the creation of minimum wage corridors and

“asking unions and operators to agree a common level of seafarer protection”

on ferry routes.

In the Minister’s recent letter to us of 21 October, she said that the Government were

“committed to a voluntary Seafarers’ Charter because it avoids confusion, complexity and over-regulation of an industry. It is right to keep this as a voluntary agreement initially, while we monitor the impacts of the Charter. However, we are keeping the need for a legislative basis under review.”

It appears, disappointingly, that discussions have stalled; the last version of the charter has not been circulated since early August, and the forum of employers and trade unions overseeing it appears to have been unilaterally scrapped by the department. The crucial area of roster patterns, which had been agreed by unions and operators —two weeks on and two weeks off—has now stalled, because the Government have proposed that further research is needed. That may be delay the publication of the seafarers’ charter. Is the Minister in a position today to give us a timeline for completion of that vital work?

Still, the principle of collective bargaining lies behind point nine, and also underlies the amendment proposed by my noble friend Lord Tunnicliffe. Given the precedent established by P&O Ferries in abrogating without notice collective agreements with unions that had been updated and developed over 100 years, it is essential for the Government to act to restore protection for seafarers by way of upholding collective bargaining, as intimated in the Minister’s letter.

It may be relevant for your Lordships to note that the EU, which of course covers the countries to and from which most of the routes that we are considering go, has adopted a social pillar, which in principle encourages the social partners

“to negotiate and conclude collective agreements”.

Partly in consequence of that, the European Council and Parliament have recently approved a draft directive on minimum wages. Seafarers are excluded on the basis that ship owners and seafarers’ unions will collectively bargain their own procedures to determine minimum wages. The UK should encourage such sectoral collective bargaining. That would be consistent with our obligations under the trade and co-operation agreement.

A return to encouragement of the social partners in the shipping industry to negotiate a comprehensive seafarers’ charter, impact assessed and monitored in accordance with my noble friend Lord Tunnicliffe’s amendment, is important. I invite the Government to adopt his amendment.

[Lord Balfe (Con)]

My Lords, I will say a couple of words. This clause is a typical “Let’s have a review” clause. In 90 days, it could do nothing at all, of course, because by the time the Act has commenced nothing at all will have happened. We have a failing in this House, and in legislature generally, that we tend to pass Acts and then forget them; they just pass away into the distance. I would welcome it if the Minister could give us some assurance that there will be monitoring of this Act and that we will be looking to see where it goes.

A subject such as this seems to be an ideal one for an inquiry in about a year’s time as to how the Act has affected the industry. I suspect that it will have very little effect on pensions, for instance, and we might well wish to look at a stronger charter overall. Could the Minister assure us that her department will keep this under review? Perhaps some noble Lords could decide in time that it might be a subject that should be looked at by a special committee of this House.

Trade Union (Levy Payable to the Certification Officer) Regulations 2022

Debate between Lord Hendy and Lord Balfe

Monday 7th March 2022 Lords Chamber

[Lord Balfe (Con)]

My Lords, first, I should declare an interest as the president of BALPA, the TUC-affiliated union for pilots.

This is just unnecessary, is it not? The Act was passed in 2016. I remember that my noble friend who just spoke was the Minister then and we had one or two set-tos, but in the end, to my mind, her knowledge of the trade union movement helped ameliorate that Bill and get it on to the statute book. I had liked to think that the non-activity over the past two or three years meant that the Government had had another thought and decided that these regulations did not need to be brought into being—and of course they do not. They are not going to add anything. We have heard about the 34 complaints with no enforcement orders and about the fact that no other voluntary organisation pays for its regulator, and we know that the whole of this office is really not needed for the purpose for which it is being put forward.

What I would say though, particularly to the noble Lord, Lord Razzall, is that we should not make this a battle between the Labour Party and the Conservative Party over funding. It is not. It is about unnecessary control of the trade union movement. The majority of my union members voted for this Government. I am absolutely convinced of that, having talked to them. Some 30% of paying trade unionists vote Conservative. We have got to get over this idea that somehow the trade union movement is comprised of hard-working, left-wing socialists.

My wife was a district councillor for some years; she dealt with unions in rural England, and said that most of them were well to the right of her in their political beliefs. Most of them were voting for the Conservative Members of Parliament to be found in the depths of East Anglia. So let us get over this idea that union members are all Labour and not Conservative. It is important to get over it because I think the Minister needs to get over it and the Government need to get over it.

I have said over many years that we will have reached an achievement in this country when, just as the leader of the Opposition goes to the CBI on a regular basis, so the leader of the Conservative Party appears at the TUC and makes a speech and answers questions. Breaking down this divide is really quite essential if we are going to have industrial relations peace in this country.

We have not got a lot of time, so I am going to leave the Minister with just two questions, one of which has already been asked in one form. First, what, if anything, are the Government prepared to do about vexatious litigants? There will be people who will go to the regulator purely to cause trouble—every union has them; even BALPA has the odd member who gets great pleasure out of trying to run rings around its national executive. To what protection are the Government prepared to look to protect vexatious claims against unions? Secondly, the Government have pussyfooted around on electronic balloting the entire time I have been in this House. There are no questions about having a secure electronic ballot. Is it not time that the Government made a generalist gesture to the trade union movement and let it have what is a totally secure system, at its own choice, for running internal elections?

Those are two things the Government can give us. It will cost them nothing but it will show the Conservative-voting trade unionists of this country that the Government are a Government of the country and not just one part of it.

[Lord Hendy (Lab)]

My Lords, the Minister’s justification for the levy is that it is entirely normal for a regulator to be paid for by those whose businesses are subjected to regulation. That argument is untenable for at least five reasons.

First, the CO is not a regulator in the same way that others are. She has an administrative role to list trade unions and employers’ associations but her principal function is judicial, regulated exclusively by the Trade Union and Labour Relations (Consolidation) Act 1992. It is confined to the following matters: elections; disciplinary proceedings; balloting, other than for industrial action; the constitution and proceedings of the executive; elections for president, general-secretary and executive committee; political funds; amalgamations; transfers and engagements; accounting records; and annual returns. All these are purely matters of internal trade union affairs. The Secretary of State has the power to specify other matters by order but has not done so.

In relation to these issues, the CO acts judicially. If she receives an application from a member against the union which manifests a prima facie case, the CO conducts a formal hearing. Both parties take their turns—often through counsel—to present their evidence, cross-examine witnesses and make legal submissions. The CO then hands down a decision and may make a declaration if she finds a breach.

Appeals lie from the CO to the Employment Appeal Tribunal, which is of course a division of the High Court presided over by a High Court judge. There are few regulators with such judicial functions and where the governing legislation has specified a direct route of appeal to the High Court. However, one such is the employment tribunal, from which there is the identical route of appeal to the EAT. Noble Lords will recall that the Government legislated to impose fees on employment tribunal claimants but the Supreme Court, in the Unison case, held that that was unlawful; the Government consequently withdrew the fees regime. However, what is significant in this debate is that the Government have never suggested a levy on employers to pay for employment tribunals. It is not surprising therefore that trade unions point to the fundamental injustice of them paying a levy to meet judicial costs under the legislation which applies to them when the costs of adjudication under the legislation which applies to employers is met by taxpayers.

The second point is that the justification for the imposition of virtually every regulator is the need to protect the public. That does not apply to the CO. The primary purpose of bodies such as the CO and the employment tribunal is not to protect the public but to adjudicate in disputes between specified classes of claimants and respondents. In the case of tribunals, this is between workers and employers, and in the case of the CO between unions and members. The jurisdiction of each is limited to the statutorily specified subject matters. That is why members of the public cannot complain to the employment tribunal or to the CO that a friend of theirs has been unfairly dismissed by an employer or unfairly disciplined by a union.

Therefore, the CO is not there to protect the public from breaches of the relevant rules but to give trade union members, and only trade union members, an avenue of judicial complaint. It is true that the Government have now extended the remit of the CO to investigate matters on her own initiative, even where no member has complained, but the scope of her jurisdiction is still confined to the specific items I have listed. An infraction by a trade union in any of those matters will not impinge on members of the public and neither will any member of the public have the right to bring proceedings before the CO about it. So the public interest argument is simply without merit.

This is important, for although unions are complaining that newspapers and political parties hostile to them will rush to make complaints to the CO, such complainants cannot make a formal application and, if she thinks there is any merit in an informal complaint, the CO will be called upon herself to act as investigator, prosecutor and judge. That is not a position she is likely to enjoy, I imagine. Indeed, I doubt that she will welcome the extra workload of investigating allegations from unaffected outsiders about the internal workings of a union where no member feels sufficiently aggrieved to make a formal application to her.

My third point, which has already been dealt with by my noble friends Lord Bassam and Lord Monks, is that where regulators are funded by a levy, they are invariably conducting a business for profit, or at least earning a living from the regulated activity. That does not apply to trade unions, which make no money from the regulated activities.

That leads to the fourth point, which is that where a regulator is funded by a levy, those who must pay it are able to deduct the cost of their levy from the tax they pay on their profits. Trade unions cannot do that. Their income is derived, as has been said, almost exclusively from members’ subscriptions and goes to offset their running costs. They have no profits to tax. They do not have a tax bill against which to claim their levy.