Employment Bill [Lords]

We would then be on a par with European law, because the right to strike is in place in most European constitutions. As my hon. Friend knows, the history of this goes back to Taff Vale in 1906, when we gained impunity against actions for tort when industrial action was taking place. The interesting thing is, however, that we now have fewer trade union rights in this country than we had in 1906. After 11 years of a Labour Government, I congratulate them on some of the improvements that have been made, and I am hoping that tonight we will be able to move that bit further towards re-establishing some fundamental rights for trade unionists. New clause 3 deals with agencies, and seeks to address the continuing problem of the use of agency workers by an employer to replace striking workers during an industrial dispute. I congratulate the Government on seeking to address that issue in 2003, but certain anomalies remain as a result of problems with the law. The new clause seeks to tidy up the Government's original proposals. I should like to explain that in a little more detail. In 2003, the Government introduced the Conduct of Employment Agencies and Employment Businesses Regulations 2003. The regulations bar the use of replacement labour to carry out the duties normally performed by a worker undertaking lawful industrial action or lawful strike action. They also bar the replacement of a worker who has been assigned to do the work normally performed by a worker undertaking lawful industrial action or lawful strike action. There are, however, three fundamental weaknesses in the regulations that need attention. First, the regulations differentiate between an employment agency and an employment business. An employment agency introduces workers to hirers for direct employment by the hirer, and it can include temporary contracts. An employment business, on the other hand, supplies temporary and casual workers to third-party hirers. The clause barring the provision of replacement labour during lawful strikes applies only to those hired through employment businesses. If an employer hires labour through an agency rather than a business, they can avoid liability for engaging casual labour during lawful strikes. The amending provision would remove that anomaly. Secondly, the bar on supplying replacement labour applies only if the supplier knows that the worker is replacing one taking industrial action, so the onus is on the supplier of the labour to know whether industrial action has taken place. The amendment would clarify the regulations to impose a duty on the hirer—the employer—to inform the supplier about industrial action, and makes it unlawful for the hirer to hire replacement workers to carry out work usually done by workers who are lawfully engaged in industrial action. It closes that loophole; it is a tidying-up provision. Thirdly, current regulations relate to replacement labour being employed during periods of official industrial action. However, the legislation has proved ineffective in that it allows employers to hire labour just prior to industrial action, thereby letting bad employers avoid the intent of the legislation. The amending provision would ensure that replacement labour could not be used to do the work of those taking part or intending to take part in a lawful strike. My hon. Friend the Member for Vauxhall (Kate Hoey) provided a good example earlier when she mentioned the Communication Workers Union dispute at Royal Mail. Hon. Members will recall that the CWU took industrial action in 2007 when Royal Mail was repeatedly challenged about the recruitment of casual labour during the dispute. The union referred to the restrictions in the Conduct of Employment Agencies and Employment Businesses Regulations 2003, claiming that in Bristol alone the use of casual staff increased from 12 immediately prior to the dispute to more than 250 during the dispute. The employer, the Royal Mail, insisted that it was acting in accordance with the law. So confident was it in its ability to circumvent the intention of the legislation that it established a number of operations at various sites across the country to do the work of the striking workers, using casual labour. It did so by utilising the loopholes in the Government's legislation. The use of such tactics undermined the staff's decision to go on strike and demonstrated the failure of the regulations to prevent employers' abuses, which the Government had sought to legislate against. It soured industrial relations in the Royal Mail for a long period to come.