IER Hold Successful Conference On Workplace Issues

March 23rd saw a gathering of over 50 trade union reps at the Adelphi Hotel in Liverpool to hear major speakers on the workplace issues of redundancy, victimisation and worse! Delegates from CWU, NASUWT, Unite and Unison where in attendance from Manchester, Leeds, Birmingham, Flint, Cumbria, Bolton, and other areas including London.

The conference organised by the Liverpool based Institute of Employment rights covered issues which are becoming more and more current with trade union officers and activists given the economical climate the exists today.

Sponsored by Thompson's solicitors, four of the speakers were from this trade union supporting law firm along with two key speakers involved in the refuse collectors dispute in Leeds last year. Both gave detailed reports of events in the campaign which was the first time two unions, GMB and Unite had worked together in a dispute which proved successful for the members of both Trade Unions.

Unionsafety Web Editor, Chris Ingram, reports from the conference:

Carolyn Jones, Director of IER was pleased at the number of delegates attending this very important conference and said, "The Institute was pleased to be able to organise this innovative one day conference aimed at equipping reps with the information required to assist their members."

She continued; "Despite suggestions of economic recovery, trade union reps are battling against redundancies and job cuts; the imposition of lower terms and conditions including pay freezes; the use of grievance and disciplinary procedures to remove people from jobs without paying redundancy and the victimisation of reps negotiating and defending workplace agreements."

Having identified these major issues facing trade unionists everyday, the IER conference brought together legal, trade union and social policy experts to determine what we as trade unionists can do to help protect our members and ensure workers rights are not undermined.

The six guest speakers covered issues such as the new Acas Code of Practice, New Grievance and Disciplinary Procedures, Redundancy and the Law and the Law on Contract of Employment Changes whilst other speakers covered the Leeds Refuse Workers Dispute and the Victimisation of trade union reps.

Employment Contract Changes

With Carolyn opening the conference by welcoming the delegates and guest speakers, she introduced the first guest speaker Neil Todd, member of the Thompsons National Trade Union Law Group:

Speaking on the law with regard to employment contract changes, Neil told the delegates:

"ln a recession, many employers consider changing terms and conditions of employment, sometimes as an alternative to redundancy. lt is important to be aware when such action may be unlawful and what legal steps may be available to employees when this happens."

He continued; "Over the course of an employment relationship, an employee’s terms and conditions are likely to change. For example, newer methods of working may be introduced, new pay systems, new shift systems, etc. ln a time of economic downturn an employer may wish to reduce financial benefits or restructure shift patterns. Employees may also want to make changes, for example to alter hours of work to fit in with domestic commitments."

Neil further explained the status of a contract of employment;

"A contract of employment is a legally binding agreement, therefore both parties are bound by its terms and neither party can alter the terms without the agreement of the other. This should always be the starting point when representing any employee in any negotiations with respect to the contract of employment.

Some changes take place by mutual consent. However, difficulties arise when one party, usually the employer, wants to change the contract and the employee does not agree."

Neil provided the conference with a 26 page advisory document explaining what is meant by an employment contract, the ways in which it can be varied and remedial actions that employees and their trade union representatives can take in the vent of a dispute. In doing so the document uses case law to exemplify the various actions that can be taken.

He also covered Collective Agreements which are usually negotiated with a recognised Trade Union within the workplace.

Neil explained that there are fours ways in which contacts of employment can be changed:

"Terms in individual contracts of employment can be changed in the following four ways:-

1. The employer and employee agree on the change or the employee accepts a change by his conduct, e.g. by carrying on working under the changed contract without protesting.

2. The contract itself provides for changes.

3. The contract is varied by collective agreement which is binding on individual employees.

4. Unilateral variation of the contract by the employer. This is where the employer either implements the new term without the consent of the employee or simply terminates the existing contract and introduces a new one."

Neil added; " Changes to terms and conditions can also amount to contravention of the Discrimination
legislation, Equal Pay Act, Working Time Regulations and National Minimum Wage Act. ln addition situations involving a TUPE Transfer have specific considerations. All of this needs to be considered where changes to terms and conditions are made."

Explaining the options available to the employee in the event of a breach of contract, Neil outlined the form of the action that can be taken:

1. Accept the breach by carrying on working under the revised terms.

2 . “Stand and Sue”, i.e. stay and work in accordance with the new terms, but make it clear that this is under protest, and bring an action for breach of contract in the High or County Court, or if the breach of contract involves a shortfall in wages, claim in the Tribunal under the protection of wages provisions in Part 2 of the Employment Rights Act 1996.

3 . lf there is no dismissal by the employer but the breach is a fundamental breach going to the root of the contract, resign and claim to have been unfairly constructively dismissed.

4. lf the employer has dismissed the employee and offered new terms and conditions the employee may either bring a claim for unfair dismissal if they leaves, or even if they accept new terms, make a claim that the dismissal was unfair.

5. Refuse to work under the new terms.

Neil concluded by giving a detailed explanation of the advantages or otherwise of the five options outlined above and finished by adding;

" In the current climate trade unions are increasingly likely to become engaged with employers who are seeking to make changes to erode terms and conditions. Whether a legal remedy is available will depend on the facts of each case.

Unfortunately the law does not make the Courts and Tribunals the easiest arena in which to defend members’ terms and conditions when an employer is seeking to alter them and a legal challenge is no substitute for industrial muscle. However there are arguments that should be put forward, and even in circumstances where such arguments may not
succeed in Court or Tribunal, they should be put in the strongest possible terms in any internal negotiations. It is hoped this paper will be of some assistance."

A question and answer session, then took place with questions from the floor followed by a short break which gave the delegates the opportunity to attend the info stalls and have a coffee.

Leeds Refuse Workers Dispute

Next up was a very animated Union Organiser by the name of Desiree Risebury from the GMB's Wakefield Branch, who went into the detail of the Leeds Refuse Workers dispute which affected both her members and those of a second Trade Union - Unite.

Desiree told the conference that the industrial problems facing both Unions required them to work in partnership, and given that the two had not always seen eye to eye when it came to addressing industrial relations problems with Leeds City Council; this was by no means an easy task. However, she said once the officials had gotten together and laid down the basis of a plan of action, the second problems was that of the two respective memberships - another matter altogether!

Joint meetings were held with officials with both Unions attending and putting forward a campaign strategy to tackle the fact that Leeds City Council were trying to use equal pay legislation to force down the wages of refuse collection staff instead of ensuring both male and female employees were brought up to existing wage levels for male employees. The City council was demanding swinging wage cuts from refuse collection staff and using agency workers to break the strike action and force the workers to accept lower standards of wages and terms and conditions.

In the end, by forging good relationships with the local media and the local Police, Desiree explained that the campaign resulted in victory and ensure future good relations between both Trade Unions and their respective memberships.

This was then followed by a lunch break which gave the conference delegates the opportunity to attend the info stalls, watch a documentary made by the Trade Unions involved in the Leeds refuse workers dispute and of course to have a bite to eat.

The afternoon session stared with a short speech from Tony Pearson detailing the victimisation of a trade union rep who was involved in the Leeds Dispute and on his return to work was singled out by his employer for disciplinary action.

False accusations were made against him by agency workers and a subsequent enquiry showed no case to answer on the grounds of lack of evidence. The point was made very strongly by Tony, that this did not amount to a finding of innocence and still leaves a mark on the Union Rep's good name and open to further disciplinary processes in the future by his employer, leaving him in a very weak position.

New Grievance and Disciplinary Procedures

New Grievance and Disciplinary Procedures was the next topic and was presented by Jo Seery from Thompsons Solicitors.

Introducing the subject, Jo said "lt is now almost a year since the statutory dispute resolution procedures were repealed and a new ACAS Code of Practice on Disciplinary and Grievance Procedures (the ACAS Code) was implemented."

Jo pointed out to conference that it was worthwhile looking at the reasons why the statutory dispute
resolution procedures were bad, and then to consider whether the new ACAS Code has put unfair dismissal law back to how it was before the introduction of statutory procedures in October 2004.

Jo said; " It will be recalled that the main reason for introducing the statutory procedures was due to the Governments concern at the growing numbers of Employment Tribunal claims. lt was ostensibly claimed that by introducing statutory procedures employers would be encouraged to introduce their own internal grievance and disciplinary procedures."

Jo explained; "In the event the introduction of the statutory procedures:

* Limited employees access to justice by barring claims to an Employment Tribunal unless a grievance had been lodged:

* Introduced procedures of the lowest standard compared with more comprehensive union negotiated agreements

* Increased the number of Tribunal claims on technical points of law especially at appeal level, and

* lntroduced a financial penalty for both employers and employees."

She also gave further details of the effects the introduction of statutory procedures caused;

"Further difficulties were created as it:

* Introduced a right for employees to claim automatic unfair dismissal if the employer failed to follow the statutory minimum procedures (a supposed benefit for employees but negated by the next point).

* Enabled employers to defend claims of unfair dismissal by arguing that, provided they followed the minimum statutory procedures, they would have dismissed an employee in any event if they failed to follow agreed procedures beyond the statutory minimum ( the ‘no difference rule’)."

She pointed out that the statutory dispute resolution procedures were repealed when the Employment Act 2008 and the Employment Act 2008 (Commencement No.1, Transitional Provisions and Savings) Order 2008 (“the 2008 Regs”) came into force on 6th April 2009, and went into the detail of the immediate effects that this repeal had upon workers:

This also meant that:

* the right to claim automatic unfair dismissal because the employer failed to comply with the statutory procedures:

* the bar on employees lodging claims at an Employment Tribunal because they had not lodged a grievance;

* the extension to the time limit for bringing a claim in an employment tribunal because either a grievance had been lodged or an employee had reasonable grounds for believing that a disciplinary or dismissal procedure was still being
followed; and

* the defense for employers that they would have dismissed an employee even if they had followed a reasonable procedure beyond the statutory procedure were also repealed.

Jo commented further; " Unfortunately this did not mean that the law on unfair dismissal, including constructive dismissal reverted back to how it was prior to October 2004.

ln particular, the more comprehensive and detailed ACAS Code was replaced with one which effectively mirrored the standard dispute resolution procedures. Furthermore, and perhaps of greater significance, the Employment Act 2008 also implemented a new section 207A in the Trade Union & Labour Relations (Consolidation) Act (TULRCA) 1992 which introduced a general power for Employment Tribunals to increase or reduce compensation by up to 25%.

This meant the financial penalty introduced by the statutory procedures was retained only now it applies where there has been an unreasonable failure to comply with the ACAS Code by either the employer or employee."

Jo's 39 page paper presented to the conference goes on to consider the status of the Code, when it applies and does not, the main principles and how the code should be interpreted by Tribunals bearing in mind case law and other statutory obligations on employers when deciding whether employers have acted reasonably.

She made it clear to the delegates that unlike the statutory procedures the ACAS Code is not legally binding and therefore, unlike the statutory procedures, a breach of the Code in itself will not give rise to a claim for automatic unfair dismissal nor will an employee be able to bring a free standing claim against an employer who breaches the ACAS Code.

In discussing the code she detailed the items covered pointing out that the code only applied to employees who are subject to disciplinary and grievance procedures and are defined in para 1 of the code:

* Disciplinary situations are confined to misconduct and/or poor performance

* Grievances are concerns, problems or complaints that employees raise with their employers.

Jo's paper is comprehensive and we do not have the room here to go into all aspects of the paper as she presented it to the conference. Suffice to say that Jo went into the detail regarding the main principles of the code and the fact that it emphases the importance of fairness and transparency on behalf of the employer when handling disciplinary and grievance procedures.

ACAS Code of Practice on Time Off for Trade Union Duties

Ian Birrell from Thompsons introduced the final presentation for the day which covered the new ACAS Code of Practice on Time Off for Trade Union Duties.

Ian began by joking that he had been give the 'grave yard shift' as he was the final speaker for the day. Outlining the new COP, he said;

"The new ACAS Code of Practice on Time Off for Trade Union Duties and Activities came into force on 1 January 2010. It updates the previous version of the Code. Most controversially, accompanying the Code are two sets of separate
guidance "Trade Union representation in the Workplace" and "Non- Union representation in the Workplace"

Bearing in mind that ACAS' power under Section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992 is to issue guidance on the time off to be permitted to trade union members and officials, it was unnecessary for
it to issue guidance aimed at non-union representatives."

Ian went on to explain that the Code is admissible as evidence to industrial tribunals, but that failure to meet the code does not automatically make the employer legally responsible.

He then outlined the duties of a trade union rep which he/she is entitled to claim as time off from work:

* Negotiations with the employer on behalf of a recognised trade union as a part of collective bargaining

* Other functions on behalf of employees related to collective bargaining and which the employer has agreed that the
union may perform;

* information and consultation on collective redundancies;

* information and consultation under TUPE;

* Making agreements relating to insolvent employers under TUPE.

He added: " Union Learning Representatives (”ULR") who are members of an independent recognised trade union are entitled to time off provided that the union has given the employer notice in writing that the employee is a ULR and that the training requirement has been met."

With regard to the amount of time off that can be expected, Ian explained that the COP states:

" The amount and frequency of time off should be "reasonable in the circumstances" taking into account factors such as:

* The size of the organisation and the number of workers
* The production process;
* The need to maintain a service to the public; and
* The need for safety and security.

Employers have to take into account the particular circumstances of trade union representatives, including their work patterns, those employed at dispersed locations, domestic commitments and representatives with disabilities."

One interesting area covered by the COP is that of time off for employees to undertake trade union activities, and Ian outlined these as follows:

" An employee who is a members of an independent recognised trade union is entitled to reasonable time off for activities such as:

* Attending workplace meetings to discuss and vote on the outcome of negotiations (where relevant, this may now
include attending meetings at the employers’ neighbouring locations);

* Meeting full-time officers;

* Voting in union elections; and

* Accessing the services of a ULR.

There is no right to time off for activities which consist of industrial action."

In going through the details of the code of practice, Ian concluded his presentation pointing out that;

"The Code includes a requirement for union representatives to be "as flexible as possible” when seeking time off, where the "immediate or unexpected needs of the business" make it difficult for their time off to be managed. However, it also states that employers should “recognise the mutual obligation to allow union representatives to undertake their duties.”

Referring to the employer, Ian added: "In accordance with the Code, line managers should be familiar with the rights and duties regarding time off and "should be encouraged to take reasonable steps as necessary in the planning and management of representatives' time off and the provision of cover or work load reduction, taking into account the legitimate needs of such union representatives to discharge their functions and receive training efficiently and effectively.”

That left Carolyn to formally thank the speakers for their detailed presentations and the delegates for attending the conference. Comments from many of those attending made it clear that they felt the day was very successful and worth their journeys in order to attend. The handouts in particular were well received.

This was a key element of the conference. Quality of handouts which covered thoroughly the speeches and presentations from the guest speakers. These were invaluable tools that the Union delegates attending could take away with them and use back at their workplaces in order to become more effective in tackling the specific issues covered by the conference. In addition the lunch time availability of stalls from Dawes Project, UnionLearn, and the Merseyside Welfare Rights to name just a few; provided further resources for the delegates use following the conclusion of the conference.

The Institute's website will be updated shortly to include the ability to download some of the resources available at the conference. You can go to their website here

Source: Unionsafety

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