Employment Bill [HL]

My Lords, I start with a double declaration of interest. I am a member of the trade union Unite and I also sit as a member of the Employment Appeal Tribunal. In his introduction to the Bill, my noble friend Lord Jones of Birmingham said that it was predicated on the twin pillars of economic prosperity and social justice. Although I can see much economic prosperity, I am still searching for the same degree of social justice, and I shall say a little more about that later. For now, I draw attention to the proposals on the national minimum wage. The emphasis for change is not that low-paid workers are being exploited by unscrupulous employers, but that some employers complain of undercutting by their competitors who do not pay the minimum wage. The emphasis on enforcement for non-payment of the minimum wage is not on the failure to pay, but on the failure to comply with the enforcement notice. The key principles of the Bill are rightly focused on a number of fault lines in the current employment legislation which need to be addressed; for example, the structure for the resolution of disputes. Therefore, the Bill offers a real opportunity to rebalance the current provision for dispute resolution, including the employment tribunal process. Here I fully support my noble friend Lady Gibson of Market Rasen, who expressed her concerns about employment tribunals. Under successive Administrations, the key pillars of the employment tribunals have stood the test of time. That is to say, tribunals have benefited from the knowledge and experience which lay members from both sides of industry bring, ably supported and guided by the eminency of a learned chairperson. It is important that the current safeguards are preserved, but it is most important that access to justice is maintained. I hope that, in his response and through the various stages of the Bill, the Minister will assure the House that this delicate but constructive balance will not be put at risk. We all want to get rid of rigidity and unnecessary red tape in the labour market, but as the labour market develops an even greater degree of flexibility, so the need for better employment safeguards increases. Reading the Explanatory Notes to the Bill, one could be forgiven for thinking that the provisions are addressing a balanced relationship in the workplace on the issues raised. But nothing could be further from the truth. That relationship is not about equity of resources—resources have not been deployed equally in industrial tribunals for those whom the Bill aims to help the most—it is about access to justice. Although I very much welcome the principles in the Bill, it is still a Bill of missed opportunities. There are two particular areas of disappointment. First, the Bill misses the opportunity to do basic justice to agency workers. My noble friend Lady Turner of Camden and other noble Lords have already drawn attention to the proposed Private Member’s Bill coming from another place. The scale of the problem is set out in a recent article by the Member who intends to promote that Private Member’s Bill on agency workers. He freely admits that many of the 1.4 million agency workers in the UK are treated well and enjoy the flexibility that that pattern of employment provides. For the majority of them, however, it is a very different story. He describes a firm in his constituency where workers were employed for 15 years as temporaries. The matter came to light only when the firm closed and those agency workers received not a penny in redundancy pay after 15 years. One can only describe that not as temporary employment but as permanent abuse. As I said, although I can see the economic prosperity in that scenario, I fail to see the social justice. The article describes the three-tier labour market, each tier on different terms and conditions, made up of the directly employed, agency workers and casual workers. Bottom of the bottom are the council cleaners, some of whom might even be working in Whitehall, lined up at 5 am in the morning waiting to find a day's work, waiting to see whether they will be picked. It is reminiscent of the pre-war period of casualisation in the docks industry, when dock workers had to enter what was called ““the pen””, waiting to be inspected and hoping to be picked by the supervisor for a day’s work. No one in this House can imagine the sense of shame and worthlessness of having to return home and confess to your family that you were not picked for a day’s work. Let us be clear: all of this as it currently applies to agency workers and to casual workers is legal. It is being done in our name and in the name of the flexible labour market. It may bring economic prosperity but it certainly does not bring social justice. What has been our Government’s response to this exploitation of agency workers? Let me tell you. Our Government have worked tirelessly to deploy as much resource as possible to block the European directive aimed at giving rights to agency workers. Indeed, it is not too strong to suggest that the Government worked tirelessly to maintain legalised discrimination against agency workers. That may be in the name of economic prosperity, but it certainly is not social justice. Some will argue, as has been said today, that such practices will ensure continued employment. Tell that to the people waiting in the pen from five to nine without being chosen. Up and down the country there are thousands of first-class agency workers who are keeping the economy going but are treated as second-class citizens. The second area of missed opportunity is the failure to extend to other employment sectors, such as construction, the legislation regulating gangmasters in agricultural industry. Make no mistake: there is an army of gangmasters in the construction industry and their behaviour is infinitely worse than that which motivated the regulations to control gangmasters. The plight of agency workers which I have described is liberated luxury compared with the conditions of abuse and exploitation suffered by workers in other sectors of the economy. It may be legal but it certainly is not moral. Finally, I have some difficulty with Clause 17, which proposes the exclusion of trade union members. To be judged by our actions—on what we do, not on what we are members of—has long been a cherished tradition of freedom and liberty in our country. Having examined Clause 17, I ask myself where unacceptable membership starts and where it ends. What organisations will be proscribed? Is there a list that will form an addendum to the Bill? Who will be the judge? Where are the safeguards? Is this the first step not only towards expelling someone you do not find favour with but to banning the organisation to which they belong? It is just one small step. I ask the good people of Barking to forgive me, but I believe that Clause 17 is barking mad.