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Code Of Practice: Time Off For Trade Union Duties And Activities

Volume 387: debated on Tuesday 29 November 1977

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4.49 p.m.

rose to move, That the draft Code of Practice relating to time off for trade union duties and activities, laid before the House on 3rd November, be approved. The noble Lord said: My Lords, I beg to move that the Code of Practice on time off for trade union duties and activities be approved. A draft of the Code of Practice was laid before this House on 3rd November.

The Code contains practical guidance on Sections 57 and 58 of the Employment Protection Act. Section 57 makes provision for an official of a recognised trade union (such as a shop steward) to be permitted paid time off for duties concerned with industrial relations between his employer and his employees and for training relevant to the carrying out of those duties. Section 58 makes provision for an employee to be permitted time off, for which he is not required to be paid, for taking part in activities of a recognised trade union, of which he is a member, including activities in which the employee is acting as a representative of the union.

The rights to time off, which were of course discussed fully in this House and in another place during the passage of the Employment Protection Act, are not unqualified rights but extend only to what is reasonable in all the circumstances. The Code, prepared by the Advisory, Conciliation and Arbitration Service (ACAS) in accordance with Section 6(2) of the Act, provides practical guidance to assist in deciding the purposes for which, the occasions on which and any conditions subject to which, it is reasonable to grant time off, and the amount of such time off it is reasonable to grant. The Government, in accordance with the undertakings given at the time, have deferred the implementation of Sections 57 and 58 until this Code was ready, in order to bring them into operation together.

When drawing up any Code under the Act, ACAS is required to publish a first draft for consultation, and to consider all the representations made to it before submitting a final draft for the approval of the Secretary of State for Employment and subsequently of Parliament. This procedure has been followed in the preparation of this draft Code. In October last year the Service published a first draft of the Code, giving those concerned an opportunity to make representations on its content. The Service received—as one would expect on a subject of this importance—a substantial number of representations: from the CBI, the TUC and from individual employers' associations and employers and trade unions; from professional associations, and from individuals. Each and every one was carefully considered by ACAS, which also entered into extensive consultations—in particular with the CBI and TUC—which continued for some months.

I should remind your Lordships that the ACAS Council contains equal numbers of members appointed after consultations with organisations representing workers and organisations representing employers, and that it has already in its relatively short existence become widely accepted by both sides of industry as a source of impartial advice and assistance on industrial relations matters. It is thus in my view uniquely well-qualified to provide practical guidance on an issue of this nature.

Noble Lords will note in particular that there have been a number of changes from the original draft. Naturally it was not possible for ACAS to accept every suggested change in the text of the Code, but I am assured that every point of view was carefully weighed and taken into account before a final decision on the form of the draft Code was taken. The draft laid before your Lordships thus represents ACAS's view of the most satisfactory consensus of the views of both sides of industry as to what constitutes good practice in this area. I take the opportunity of praising all those involved, both in the Service and elsewhere, for the part they have played in producing the draft Code.

This draft Code is the third to be prepared by ACAS. The first, dealing with disciplinary practice and procedures, was laid before the House in March of this year and came into force in June. The second, dealing with the disclosure of information by employers to trade union representatives, was approved by this House on 24th May this year, and came into force on 22nd August. The draft Code is in seven main sections. The first section describes the provisions of the Act. The second sets out general considerations applying to time off arrangements. The third gives guidance on those duties of trade union officials that are covered by the provisions, and the fourth gives guidance on time off for training in those duties. The fifth gives guidance on time off for certain trade union activities; the sixth deals with particular conditions relating to the operation of time off arrangements; and the seventh deals with time off arrangements in situations where there is industrial action or the risk of such action.

I have already outlined the provisions of the Act. The second section of the Code sets out some general considerations about arrangements for time off. It reminds trade unions of the wide variety of circumstances and different operational requirements which will have to be taken into account in dealing with arrangements for time off. The Code points out that some employers face particular exigencies of production and that special circumstances apply to small firms. It reminds employers that union officials and members may have problems of effective representation and communication in certain circumstances—for example, where a shift working system is operated or where the workforce is scattered. Bearing in mind the varied circumstances and problems that both sides of industry may face, the Code urges them to reach voluntary agreement on arrangements for handling time off. In the great majority of cases where an employer recognises a union or unions there will already be some arrangements for time off. The Code points out that employers and unions will need to review these existing arrangements in the light of the Code, but that this does not necessarily mean that they will need to be altered.

The third section of the Code sets out the most important duties of a trade union official which are concerned with industrial relations between his employer and the employees—for which as such he will be entitled to take reasonable paid time off. Such duties relate in particular to the official's role in jointly agreed procedures or customary arrangements for consultation, collective bargaining and the handling of grievances.

The fourth section of the Code deals with the training of trade union officials. To my mind this is of particular importance and I should like to dwell for a few moments on this subject. I would add that I speak as a person who has had some experience as a trade unionist. The Royal Commission on Trade Unions and Employers' Associations chaired by the noble Lord, Lord Donovan, while noting a considerable expansion in trade union training facilities since the War, none the less emphasised the need for the expansion of training for shop stewards, who are of course essentially lay representatives—both employee and trade union official.

The trade union movement has done a great deal to help itself in the decade since Donovan in the area of training and education, but, as the union movement itself recognises, much remains to be done. Section 57 will assist this process by giving officials the right to reasonable time off for training which is relevant to their industrial relations duties. In addition, the Government have since last year provided a grant towards the cost of trade union training and education incurred by the TUC and its affiliated organisations. In the first year, the grant was £400,000 and this year £650,000 has been made available. I think this is money well spent and we are considering allocations for future years in the light of the trade union movement's plans for expanding the training they provide.

The Code, in dealing with time off for training, stresses the need for initial basic training as soon as possible after an official is appointed. I am sure that is right. There is a good deal a shop steward needs to know these days in order to function efficiently to the benefit of the members he represents and also, I think it is fair to say, his employer. The Code also makes provision for more specialised training where the need arises. The Code does not attempt to define an appropriate syllabus for this or other types of course since circumstances and needs will vary. However, such training must, in accordance with the provisions of the Act, be approved by the TUC or the official's union, and be relevant to the sort of industrial relations duties defined earlier in the Code. Although the Act does not require that the employer formally approve such training, the Code suggests that he should have a right to know the contents of any training proposed by a trade union; that the number of officials from any establishment receiving training at any one time should take account of the employer's operational needs and that, more generally, unions and management should endeavour to reach agreement on the arrangements for such training.

The fifth section of the Code points out that to operate effectively and democratically trade unions need the active participation of members in certain union activities for which time off should be given. For example, voting at a work-place in union elections, or holding meetings during working hours either where this is necessary because of the urgency of the matter to be discussed or, with more routine matters, where production or services would not be adversely affected.

The sixth section of the Code deals with a number of particular conditions which bear on the adequate operation of time off arrangements, for example the need for the union official to inform management of any time off he is seeking as far in advance as possible, giving some details, and the desirability of management making facilities available to enable officials to perform their duties efficiently and communicate effectively with members.

The seventh and last section deals with time off in connection with industrial action. ACAS was particularly enjoined by the Act to cover this question in the Code. The Code emphasises that satisfactory time off arrangements are particularly needed where communication and co-operation between managements and unions are in danger of breaking down. It makes the important distinction between activities which themselves consist of industrial action—where there is no entitlement to time off—and situations where, because of the industrial action or the threat of it, the granting of time off to those not directly involved can be particularly important: for example, in the case of an official not taking part in industrial action but representing members involved in it, and workers affected by but not taking part in such action.

In one sense Sections 57 and 58 of the Employment Protection Act contain new rights. On the other hand, there can be few employers who recognise unions who do not at present make some arrangements for time off for trade union duties and activities. Indeed some of these arrangements, whether set out in written agreements or not committed to paper, are very liberal. Such employers recognise this is necessary to allow the union which represents their employees to function effectively. These provisions and the Code are designed to set standards which will encourage the less progressive employer to follow current best practice. Moreover, they have precedents. The Code of Industrial Relations Practice, introduced by the Conservative Government in 1972, provided that as a minimum shop stewards should be given reasonable time off with pay for their industrial relations functions, and that management should make other facilities available to enable them to keep in touch with their members and to represent them effectively. The new Code will, of course, replace the relevant provisions of the 1972 Code when it comes into effect.

A Code of Practice under the 1975 Act has a status akin to that of the Highway Code. It does not of itself impose any legal obligations on an employer—the obligations are set out in the legislation, which simply provides that the guidance given in the Code must be taken into account by employers when assessing their response to requests for time off under the provisions of the Act. But if any complaint about failure to give time off under these provisions is made to an industrial tribunal, then the tribunal will take into account any provision of the Code which appears to it to be relevant to the proceedings. The consistent emphasis of the Code, however, is on the need for voluntarily agreed arrangements and it is to be hoped that in most cases any disagreements on time off will be resolved within the industry or firm concerned through its own negotiating machinery. The conciliation services of ACAS will of course be available to help if necessary.

If the Code is approved by both Houses of Parliament the Government intend to bring the Code together with the relevant provisions of the Act into operation on 1st April 1978. This should give those concerned on both sides of industry adequate time to review their arrangements for handling time off and to reach agreement on any necessary changes. With the implementation of Sections 57 and 58, the whole of the Employment Protection Act passed in 1975 will have been brought into operation. I beg to move.

Moved, That the draft Code of Practice relating to time off for trade union duties

and activities, laid before the House on 3rd November, be approved.—( Lord Wallace of Coslany.)

5.5 p.m.

My Lords, I am grateful to the noble Lord, Lord Wallace of Coslany, for moving that we approve this Code of Practice document, though I cannot say that, as a document, it works me into a lather of excitement. It is almost comically innocuous, but a generally acceptable compromise between the very reasonable fears which employers felt when they first read the Trade Union and Labour Relations Act and the desire for members of trade unions to have a reasonable chance with pay to pursue their obligations to their membership.

We certainly welcome the means whereby ACAS produced a first draft, took consultations with interested bodies, and were then able to lay the final draft which we now have before us. I cannot resist saying that it seems to us on this side of the House very odd that there is such a curious passion in trade union and Government circles for formalising the obvious, especially when we were criticised so heavily for being far too formalist in our own approach to trade union affairs, with Bills, Acts, codes and the like.

I found, as I read through this document, some of the difficulties which my noble friend Lord Cullen of Ashbourne found with his metrication document. It really is something of a crash course in obfuscation and in covering one's bets. Everything depends, surely, not on this Code but on how ordinary life in industry actually works in respect of time off for trade union activities. What we need to debate is not the Code but the workings of the Code and this must wait until later.

The Code is phrased in very general terms indeed. To give just a few examples, in paragraph 6 it says:
"The amount of time off … the occasions on which and any conditions subject to which time off may so be taken are those that are reasonable in all circumstances having regard to any relevant provisions of this Code of Practice".
Yet, when we read through the Code of Practice to find what the relevant provisions are, we find very much the same kind of sentence repeated in the sense that if there is an absence of a formal agreement, then management and unions must come to some agreement between themselves for these undefined practices to take place.

The noble Lord, Lord Wallace of Coslany, mentioned training. He said, very properly, that he himself was a person not inexperienced in trade union affairs. Yet he did not tell us what kind of training courses management must be prepared, under the Code, to allow the unions to take. What in fact goes on in these training courses? We should like information about that. The Code gives us no information at all.

Do such training courses include general education of the kind which could be considered broadly useful to trade unionists, or are they confined very specifically to industrial relations? It certainly seems to us to be curious that, in a document concerned with procedures and processes in industry, there is simply no reference whatsoever to any kind of work at all.

I want to say a word or two about the role of small firms. I should like to ask the noble Lord what is meant by the "special circumstances" of small firms which we find mentioned in paragraph 8, where it says:
"… some employers face particular exigencies of production, services and safety in process industries. Others operate in the special circumstances of the small firm. In enterprises large and small the workforce may be fragmented."
It is surely better to say that there is a case for excluding the operation of this Code from the smallest businesses as they are presently defined. We were told by Lord Wallace that this Code is for practical guidance, yet we gain very little practical information from it. In paragraph 15 we are told that there is no universally applicable syllabus for training; if there is no universally applicable syllabus, how are we to be given any kind of a practical guide?

We feel that it would be wrong for an employer to have to pay an employee who is representing a dismissed employee at an industrial tribunal hearing, and I would like guidance from Lord Wallace as to whether that is indeed the case under this Code. I would also like to know, referring back to paragraph 8, what exactly "process industries" are. Surely we should replace the word "process" there with "all" industries or simply omit it; I do not see the distinction that is there being drawn.

As I said earlier, we welcome the provision whereby employees are to have time off to vote at branch meetings and union elections during working hours. One of the principal platforms of Conservative thinking on trade union affairs is that there should be time for participation in the affairs of trade unions by all members. This little Code will be useful only when we are able to return to see how it has worked out in practice. As a document for guidance it is no use at all.

5.12 p.m.

My Lords, we on these Benches also wish to thank the noble Lord, Lord Wallace of Coslany, for the clear way in which he summarised the provisions of this Code of Practice, and the best word I can use to describe them from these Benches it to say that we find them "tolerable". Certainly they are in a much more balanced form than when the first draft was introduced months ago. That brings me at once to the first of what we regard as two of the key paragraphs of the Code, namely paragraph 8, in which it is said:

"The general purpose of the statutory provisions on time off for trade union duties and activities is to aid and improve the conduct of industrial relations".
That is fine as far as it goes, and while I suppose this is more a criticism of the Act than of the Code, it would seem reasonable to ask that the Code should be more expressly related to the purpose of industry itself; and if alas! there cannot be general agreement that profit forms part of this purpose, could it not at least be accepted that the purpose of industry is the efficient production of goods and services for the benefit of the community?

For us, the other basic paragraph in the Code is paragraph 10 which says:
"… employers and unions should reach agreement on arrangements for handling time off in ways appropriate to their own situations. Subsequent advice in the Code should be read in the light of this primary point of guidance …".
We subscribe wholeheartedly to that sentiment. Indeed, without such general agreement the Code might sometimes do more harm than good.

I will comment briefly on some of the other sections of the Code in the order in which they appear. It is somewhat unfortunate—again, I suppose this is a criticism of the Act rather than of the Code—that the words " trade union official " are used as they are, more particularly in paragraph 4, because it then has to be made plain in that paragraph that trade union officials are effectively shop stewards, and it is of course a matter of every-day practice that trade union officials are thought of as being full-time officers of the union rather than as company employees elected or appointed to represent their fellow workers.

Under the heading " Training", to which due importance has been attached by Lord Wallace and the noble Earl, Lord Gowrie, I have before now had occasion to say to your Lordships that I am a devoted believer in shop stewards receiving training which is sponsored jointly by management and trade unions. I have found from first-hand experience that such training courses, particularly when they can be held on neutral ground, contribute enormously to the solving of problems in the particular work situation. I therefore found paragraph 18 of the Code particularly depressing and discouraging to such co-operation in the way in which it appears to be framed, because it is couched in terms which seem to ignore the very great contribution which enlightened employers have made to the training of shop stewards.

From this paragraph one would suppose that it is only trade unions which are capable of identifying their training needs. Employers are not even to be consulted; they are merely to be informed of what training trade unions have approved, and they have to ask for a copy of the relevant syllabus rather than that it is freely given to them. If development in this field were to depend on the insular and even—I am sorry to use the word—insolent attitude which is exhibited by this paragraph of the Code, the outlook for industrial relations training in my opinion would be bleak indeed. Fortunately, shop stewards themselves have in many cases progressed a lot further than this in their thinking.

The only other section of the Code to which I wish to refer specifically is that relating to time off for certain trade union activities. In companies which are generally regarded as progressive in these matters, the normal practice of course is for meetings of trade union members to take place outside working hours, although there are occasions, as is noted in paragraph 22, where the urgency of the matter is such as to mean that it is reasonable to hold such meetings within normal hours. However, I cannot for the life of me see why it is that, without any such urgent need, according to this paragraph as I read it, the sole criterion determining whether union members should meet in working time could be that production would not be adversely affected. One really wonders whether in line 5 of this paragraph the word "or" has been inadvertently substituted for "and". If not, perhaps Lord Wallace can give a more convincing explanation for this odd wording than I have been able to extract from the paragraph.

Unfortunately as I have indicated, we on these Benches cannot give a wholehearted welcome to the Code. Nevertheless, we feel it would be churlish to carry our criticism to the point of opposition to it. Rather, with the reservations I have given, we would wish the Code well.

5.20 p.m.

My Lords, I wish to thank the noble Earl, Lord Gowrie, and the noble Lord, Lord Rochester, for their frank but encouraging support of the Code of Practice, which of course is bound not to give complete satisfaction. It has been the result of considerable discussion, negotiation and representations from individuals, and there cannot be complete, 100 per cent. agreement on the whole of the Code. Nevertheless, at a time when people are complaining about being forced to do this and that, it should be borne in mind that the basis of the Code is joint negotiation, and that it sets a guideline which people should follow. The emphasis for sensible approach is laid equally on both the employer and the employee.

The noble Earl, Lord Gowrie, said that he thought that a debate at a later stage on the working of the Code might be very useful. I would not disagree with that view. This is a matter for Her Majesty's Opposition and the Government to negotiate. Reasonable time must be allowed in this case, and no doubt we could later take the opportunity to have a debate on how the Code is working. I would welcome that, because in these troubled days co-operation between management and labour is vitally important, and anything we can do to ease the general situation is well worthwhile and is in the national interest.

Both the noble Lord, Lord Rochester, and the noble Earl, Lord Gowrie, raised questions about training. Here there can be no universally applicable syllabus, because the circumstances of each individual union, the type of industry in which that union operates, and changing situations must be taken into account. Shop stewards have to be acquainted with the effects of industrial legislation. But I draw attention to the fact that what would be involved here would be mainly the type of training to deal with a job properly, and to avoid the kind of situation, well known to those of us who have been in the Forces, in which barrack room lawyers emerge and cause more industrial disputes and trouble than anyone else. The well informed shop steward is most valuable not only to his union, but to his employer.

On the subject of education generally, I should say that it is true that many trade unions, particularly the union of which I have been a member—the Transport and General Workers' Union—provide further educational training and courses. They award scholarships to Ruskin College, Oxford, because it is in their interests that their permanent officials in particular are well trained in industrial matters, and have a good general educational standard as well—

My Lords, I am grateful for what the noble Lord has said. On the subject of general education, does he mean that the attempt to gain a scholarship at Ruskin, and so forth, will be made in company time?

My Lords, the noble Earl probably misunderstood me, which may be understandable. What I was talking about related to the unions, in this case the Transport and General Workers' Union, awarding scholarships, mainly to their younger officials, in order to give them further educational opportunities and to advance up the scale. It has nothing to do with what we are discussing here. I was merely pointing out in passing that not only that union, but also other unions, give opportunities for general educational advancement, particularly to those members who have not had past benefits in this way. What the noble Earl has mentioned has certainly aroused considerable interest.

We cannot be specific on this question of training. It must relate to the industry concerned, the problems of that industry, as well as the legislation affecting it. I agree that there has been an argument that the employer should have some kind of veto, but I do not think that that would be appropriate. The matter ought to be left to commonsense on both sides. When it comes to small firms, there are special circumstances to be borne in mind. We should all recognise that small firms have greater problems than larger firms when it comes to time off because they have smaller labour forces. This is a major point here. One of the main problems of a small firm is that the absence of even one employee can throw considerable strain on the others, and may disorganise the situation.

I turn now to the question of the payment of a representative who appears before a tribunal on behalf of a displaced employee. There is no doubt that if a representative of the management was present at such a tribunal there would be payment and it is only right, in the course of natural justice, that any representative of an employee should be paid for the time he has lost in undertaking this duty. That would be quite reasonable.

Reference has also been made to paragraph 8. This involves only an example. I should like to draw the attention of the noble Earl to the last sentence of paragraph 8, relating to the main provision et cetera. I think that if the noble Earl refers to that sentence he will see precisely what is meant—

I do not quite understand the noble Lord's interjection. Would be care to expand upon it?

My Lords, I note the noble Lord's point.

I think that the main point of the noble Lord, Lord Rochester, was that he was concerned that the employer would see the training syllabus only on request. I think that, in practice, if a training syllabus for employees is prepared in a firm it would be in the interests of both the union and the employer for consultation to take place. If there is any disagreement on any level there would be resort, first, to negotiation; and in the last resort—and I hope noble Lords' will support me in putting it that way—there will be set up an industrial tribunal. I agree that the whole matter is based on the hope that there will be co-operation between both sides in the operation of the Code. It is a pointer; it is an indication. After all, we need better relations in industry, and if anything can be issued in order to give a pointer to better relations, it should receive our fullest support.

I do not think there is any further point I can answer at present, but in accordance with the traditions and customs of the House, any matters with which I have not dealt will be considered and those noble Lords involved will receive detailed replies in due course. I trust that we shall now be able to proceed, and that in due course there will be a satisfactory debate on the results of the Code. I trust, too, that we shall not have criticism, because we need a spirit of co-operation, particularly at this time in the life of the nation.

On Question, Motion agreed to.