51福利/988 听29 November 2019听听
Carlow
Street, London NW1 7LH, Tel. 020 7756 2500, www.ucu.org.uk
To听听听听听听听听听听听听听听听听听听 Branch and local association secretaries, special Congress delegates
Topic听听听听听听听听听听听听听 Implications of rule change motions to special Congress
Action听听听听听听听听听听听 For information 鈥� to inform debate on rule change motions at special Congress
Summary 听听听听 The NEC has decided to make the information in this circular, about the effect of some of the rule changes proposed to the special Congress to discuss 51福利鈥檚 democratic structures and the recommendations of the democracy commission, available to branches and delegates听听听听听听听听 听听听听听听听听听
Contact听听听听听听听听听 Paul Cottrell, National head of democratic services pcottrell@ucu.org.uk
Dear Colleague
Implications of rule changes to special Congress 7 December 2019: information and commentary
The agenda for the special
Congress meeting to discuss 51福利鈥檚 democratic structures and the recommendations
of the democracy commission includes proposals to amend rules and standing
orders.
At its meeting on 29 November,
the NEC was provided with information about the implications of some of those
rule changes, where their impact is particularly significant, or may not be
fully apparent from the rule change as it is presented, or where there is
relevant background information.
The NEC decided that the
information and commentary it had received should be made available to branches
and delegates to inform consideration of rule changes at the special Congress,
and it is therefore set out in this circular.
An appendix is included which sets out a letter from the staff union branch of Unite, setting out their concerns about some of the rule changes. A summary of legal advice received in response to concerns raised at the last NEC and by the Trustees is also included as an appendix.
Yours sincerely
Dr Jo Grady
General secretary
1 Motion 1: General secretary instruction and breach of instruction
1.1 This motion allows any four of the English regional committees and the devolved nation decision-making bodies to initiate a process of investigation into the conduct of the GS. For information, the quorum for a regional committee under the model standing orders is attendance by members from five different institutions regardless of branch size or sector. As drafted, the proposed rule changes do not specify that the alleged breach needs to be the same breach, or place any limit on the frequency with which investigations may be initiated, or state whether investigations initiated during one term of office of the GS can be extended into a subsequent term. In the absence of further rule changes to clarify these points, interpretation of the rules would fall to the discretion of the NEC under rule 38.1. There are risks to the union in leaving such a wide area of discretion to the NEC in such a potentially complex and litigious area.
1.2 The standing orders of regions and devolved nations will need to be reviewed to specify the procedure by which the new rule may be initiated (e.g. whether constituent branches have a role or whether the relevant decisions can simply be made by delegates at regional/devolved meetings).
1.3 The advice from Thompsons, the union鈥檚 solicitors, is that it should be borne in mind that the existing General Secretary has a contract of employment which can only be varied by her agreement or at the end of her five-year term. It would not be possible for the NEC to unilaterally vary the terms of her contract so as to permit regional or devolved national committees to trigger an investigation into alleged failures of the General Secretary. 听
2 Motion 2: General secretary instruction and breach of instruction
2.1 This motion allows any 20 branches, by decision at a quorate branch meeting to initiate a process of investigation into the GS. For information, the quorum for a branch meeting under the model local rules is 鈥�one twentieth of the membership or 25 members, whichever is least.听 In any case, the quorum must be greater than the total size of the committee.鈥�
3 Motion 5: General secretary term of office
3.1听听听听 In terms of cost, the same applies to the
more frequent election of GS as noted in paragraph 4 below on the election of
DGSs 鈥� extra costs follow if the election cycle is out of sync with other
national elections or if a future NEC were to decide to hold a separate GS
election for some reason.
3.2听听听听 The
letter from the Unite branch refers to the implications of the shortened term
for the management of the organisation and the origins of the five-year maximum
term for elected general secretaries in the anti-union legislation that 51福利 and
TUC are committed to repealing. Thompsons are not aware of any other union in
the movement with a three-year term of office for general secretary. It is
relevant for NEC and Congress to consider how this change would be viewed by the
rest of the movement.听
3.3听听听听 If
passed this rule change does not apply to the current GS contract save by
agreement.
4 Motions 10 and 11: Election of deputy general secretary/secretaries
4.1 Motion 10 (recommended by the democracy commission) calls for the creation of two elected deputy general secretary positions; motion 11 calls for the creation of one such position.
4.2 Cost implications: Pay and related costs
New posts at 51福利 are subject to our agreed Job Evaluation and Grading scheme. DGS posts would fall between the JE scores for members of the SMT and the GS. On that basis, two such posts would add about 拢200 000 per annum to the pay bill.
4.3 Cost implications: Elections
Elections to these positions might be conducted at the same time as the annual round of NEC elections. The balloting costs would therefore be limited to the costs of printing, postage only if the inclusion of the extra ballot material required a higher postage cost, and a charge for the scrutiny of the ballot.
4.4 If one or both of these ballots fell out of sync with the annual cycle of NEC elections (to fill the position after a mid-term resignation, for example), the cost of a stand-alone ballot to elect one DGS would be in the region of 拢85 000.
4.5 The staff union Unite has concerns about these motions, set out in the appended letter.
4.6 Thompsons comment that although the proposal is to create two new positions of elected Deputy General Secretaries, which would be additional to the union鈥檚 current senior management team, the union should be aware of possible legal difficulties. If a member of the current SMT has a contract with a particular role designation and the duties proposed for the elected Deputy General Secretary impinge on the duties of the already employed member of staff, then there may need to be negotiation to agree division of responsibilities. There might also be legal implications by the introduction of a different level of management. An individual who felt that their status was adversely impacted, could resign and claim constructive redundancy. Although such cases do not arise very often the principle was established in Land Securities Trillium v. Thornley, that such a claim could be successful.
5 Motion 16 鈥� Creation of dispute committees
5.1 The size of the dispute committees created by this rule depends on the number of branches involved in the dispute; the rule states one delegate per branch.
5.2 To give examples, there are 69 institutions involved in the USS dispute, and 150 institutions (or 167 branches, some institutions having more than one branch) involved in the current HE pay and equality dispute.
5.3 The cost of meetings can be estimated, but there are many variable factors which mean the actual cost may vary significantly. It depends on the number of attendees, their travel costs, the location, timing and length of the meeting, the venue, and whether overnight accommodation is required.
5.4 Assuming attendance of 80 delegates with overnight accommodation in exceptional circumstances only, and assuming the availability of an averagely priced venue, the cost for one meeting would be in the region of 拢11 000. One dispute may result in several meetings. There may also be a number of disputes running simultaneously, including national disputes. NEC and Congress will need to consider the potential impact on the union鈥檚 resources (members and staff) of such meetings during the organisation and conduct of industrial action.
5.5
The equivalent of this paper presented to the NEC in advance of
May 2019 Congress drew attention to the potential conflict between the proposed
rule change to set up disputes committees and existing rule 34.1:
The National Executive Committee has the power to authorise or endorse
sanctions including industrial action, having regard to the decisions of the
Sector Committees. No other body may do so unless that power has been
explicitly delegated to it. Procedures to implement sanctions including the
payment of sustentation, shall be made by the National Executive Committee and
endorsed by National Congress.
The paper commented: 鈥淭o avoid
any conflict (and to protect the union from legal challenge) the NEC would be
advised to delegate separately to each dispute committee established under the
new proposed rules 鈥榯he power to authorise or endorse sanctions鈥�. The matters
covered by the last sentence of rule 34.1, including sustentation payments, can
only be delegated by a procedure made by NEC and endorsed by Congress (which
was the means by which the current procedures for the payment of sustentation
were established).鈥�
5.6听听听听 At the last meeting of NEC
the issue of the potential exposure of the union to challenges to industrial
action from employers was raised in relation to the proposed rule change. The
Trustees subsequently expressed their concerns about this to the GS and
suggested that legal advice be sought. A summary of the relevant parts of the
industrial relations legislation and case law, and some commentary on legal
aspects of the disputes committee proposal, has been prepared by Thompsons and
is attached as Appendix Two.
5.7听听听听 The advice of the union鈥檚 solicitors is that Congress should not make decisions on this important matter without knowledge of the legal implications and that in the light of this overriding consideration Appendix Two should be made available to delegates. However, it is important that the contents are not shared outside the union.
6 Motion 18 鈥� Proposal to extend the life of the democracy commission
6.1 Cost implications: All meetings have cost implications, which vary (as previously noted) depending on individuals鈥� travel arrangements and whether overnight accommodation is needed.
6.2 The democracy commission as currently elected has 41 members, though not all members have attended every meeting.
6.3 The democracy commission is of a similar size to the higher education committee (HEC). HEC鈥檚 meetings have been budgeted at 拢36 000 for 2019-20. Since October 2018, the democracy commission has met more frequently than HEC. The commission, like all 51福利鈥檚 committees, also requires resources in the form of staff time.
7 Motion 19 鈥� Submission of Congress motions by annual meeting of retired members branches
The NEC circulated the
following information when this motion was originally ordered in the May 2019 Congress
agenda:
7.1 This would permit the annual meeting of retired members鈥� branches to submit motions to Congress.
7.2 51福利 has two other annual meetings to which no committee is attached 鈥� prison education, and adult and continuing education (ACE). These annual meetings do not have the ability to submit motions to Congress. For other groups (equality standing committees and employment special interest groups), it is the committee, rather than the annual meeting, that has the right to submit motions and amendments.
7.3 The annual meeting of representatives of retired members branches is composed of two representatives from each regional retired members branch. These branches already have the ability to submit motions (and amendments) to Congress on the same basis as all other branches. The number of motions submitted by regional retired members branches in recent years has been:
2019: 9 motions
2018: 7 motions
2017: 7 motions
2016: 10 motions.
8 Motion 24: Reduction in quorum for sector conference where 鈥榦nly a sub-set of the branches in a sector is eligible to vote鈥�
The NEC circulated the following
information when this motion was originally ordered in the May 2019 Congress
agenda:
8.1 It is doubtful that this standing order change would have the effect that is almost certainly intended. In the 51福利鈥檚 current rules and standing orders, there is no provision for a sector conference in which only some branches in the sector are 鈥榚ligible鈥� to vote. There are occasions 鈥� most notably, recently, USS 鈥� where branches not directly involved in a dispute are asked to respect the convention that they do not vote 鈥� but this is not the same as them being ineligible under rule.
9 Motion 26 鈥� Electronic voting
9.1 Cost implications: Electronic voting across all conferences at the annual 3-day Congress meeting, taking into account the need to administer this in a way which maximises the integrity of voting, is likely to cost in the region of
拢15 000.
10 Motion 35 鈥� National hustings event
The NEC
circulated the following information when this motion was originally ordered in
the May 2019 Congress agenda:
10.1 The rule change carries resource implications in the form of the staff time required to make the necessary arrangements, and the expenses of holding the meeting which may include hiring an external venue with video conferencing facilities.
10.2 There are many details which are not covered in the rule. If this rule were adopted, these details would need to be determined by the NEC 鈥� for example, who is invited to attend as the audience and are their expenses met? Must questions be agreed in advance so that any candidate providing a pre-recorded statement can answer the same question as candidates attending in person? Who determines the questions? Who chairs the hustings? Who takes the final decision on the location and timing of the hustings, and who will adjudicate if a candidate complains about those decisions?
(Note: motion 34 suggests that the NEC should create a small election group to oversee the event.)
Appendix One 鈥� Letter to General Secretary from Unite branch
15 November 2019
Dear Jo, officer team and SMT members,
(CC Democracy Commission Co-Chairs and Unite Regional Officer)
As promised at yesterday鈥檚 Joint Negotiating Committee meeting, I am writing on behalf of the Unite branch to articulate our concerns about the impact of some recommendations of the Democracy Commission on our members鈥� terms and conditions. This represents a more developed version of the concerns expressed in writing to the employer on 10th October 2019, and also refers to concerns originally raised by our Unite Regional Officer by letter on 21st May 2019 (attached).
In brief, our concerns fall into four main categories, as follows:
路 The cost of any new appointments
路 The changes to negotiated terms and conditions of employment, which critically undermine many existing roles
路 The introduction of an opaque form of scrutiny for posts that are defined as 鈥榮enior鈥�
路 The changes to the existing bargaining machinery between 51福利 and its staff.
In more detail, our concerns relate to six of the thirteen recommendations contained in the Democracy Commission鈥檚 final report as presented in 51福利975 ():
Deputy General Secretaries
Most significant is Recommendation 8. We have reservations about the financial cost that two Deputy General Secretaries would represent, and the degree to which they would impact on the staffing budget. The total figure of approximately 拢200,000 per annum (subject to job evaluation) has been quoted by the employer for such posts, and it is unclear what duties they would undertake that are not already being undertaken by existing staff (and as such this may represent a redundancy situation if the duties they are to undertake currently fall in the job descriptions of 51福利 staff). It is also unclear where, if at all, such roles would fall in the 51福利 line management structure and thus this may represent a reorganisation.
The issue of most concern to Unite, however, is that the means chosen to create these posts is to amend Rule 28.2. Rule 28.2 currently reads 鈥淭he General Secretary may delegate any power or duty of, or allocated to, the General Secretary under these Rules to another employee of the Union as the General Secretary shall determine鈥�. Alongside Rule 28.1 (鈥淭he General Secretary shall be the chief executive of the Union, responsible for duties specified by the Rules and Standing Orders of the Union, and duties allocated by the National Executive Committee鈥︹��) this rule is the basis upon which 51福利 staff fulfil their duties. When 51福利 staff represent 51福利 members at disciplinary hearings, or negotiate with employers, or lobby MPs, or attend TUC events, we do so on the basis that the General Secretary has delegated that power and/or duty to us.
Our Unite Regional Officer set this out in a letter to the then-Acting General Secretary in May 2019 and the same issue is present in Recommendation 8. By seeking to amend rule 28.2 and conflating delegation and deputisation, this recommendation as it currently stands would have a serious and damaging impact on the contracts of 51福利 employees across all levels of the organisation. Passing this rule change as it currently stands would be in direct conflict with our collective agreements by unilaterally imposing changes to the contracts and jobs of Unite members by removing their roles and responsibilities. We still believe this to be an unintended consequence but if passed, the Rulebook would still have been changed to remove the GS鈥� ability to delegate powers or duties to staff.
This would be completely unacceptable to Unite. We are absolutely clear that if this were to be passed by Special Congress then the Unite branch would immediately seek a mandate from its members to issue a failure to agree and resist such an outcome in the strongest possible terms.
Oversight of recruitment, appointment and remuneration of
51福利鈥檚 senior officials
Recommendation 9 seeks to establish a 鈥淪crutiny Panel鈥� relating to the General Secretary鈥檚 remuneration, and the appointment, recruitment and remuneration of senior officials. It is unclear to whom the term 鈥渟enior officials鈥� refers 鈥� this is not terminology that appears in 51福利鈥檚 staffing structures and as such the scope of this Scrutiny Panel is entirely unclear. However, the Recruitment And Selection Procedure negotiated between 51福利 and Unite requires roles to be job evaluated via agreed processes and already requires an NEC member to be part of the shortlisting and interview panel for any senior management role in the 51福利 staffing structure.
The remuneration of all 51福利 employees is framed by a collectively agreed and job-evaluated grading structure, with pay negotiated annually between 51福利 and Unite through the Joint Negotiation Committee. The employer鈥檚 side of JNC includes the Officer Team and General Secretary (all elected by 51福利 members), and the meetings are chaired by the 51福利 President. A Scrutiny Panel consulting with Unite on the remuneration of 鈥渟enior officials鈥� is at best an unnecessary duplication of existing member involvement in these collectively-agreed processes.
Negotiation with staff union during the course of
Congress
Recommendation 12 seeks to mandate the NEC to negotiate with Unite a variation to our Recognition and Procedure Agreement in terms of the resolution of disputes that occur at Congress/Sector Conference. Refinements in relation to these procedures were negotiated and agreed following Congress 2018 and were implemented in advance of Recall Congress. It is hard to see any way in which the provisions of recommendation 12 would further improve matters.
Recall (of elected members and general secretary) and
triggers (for recall) 鈥� recommendations
Recommendations 1, 3 and 4 relate directly to the employment of the General Secretary. The first introduces the ability for as few as twelve people to initiate a disciplinary investigation of the GS should they be so inclined. This is contrary to the 51福利 Disciplinary Procedure, which is collectively-agreed and applies to all 51福利 staff, including the GS.
We also observe that recommendations 3 and 4 reduce the term length for future General Secretaries and introduce a limit to the number of consecutive terms a General Secretary can serve. It should be obvious and uncontroversial that these changes, if passed, would represent a worsening of the terms and conditions of a member of 51福利 staff, going well beyond the limitations introduced by Margaret Thatcher鈥檚 Conservative Government in the Employment Act 1988.
There is also an impact on staff in terms of the continuous organisational change that may accompany the reduction in length of term of office for the General Secretary. We are not aware of any equality impact assessment having been completed on these proposals.
I hope that this email has successfully set out our concerns, and that you therefore understand the importance of these issues. We would be grateful to the employer if you could signal your understanding, and set out in writing whether you share our concerns by Wednesday November 27th.
We request that you forward this email and attachment to members of the National Executive Committee ahead of its meeting on Friday 29th November. Please confirm that you will do this by no later than Wednesday 27th November. Please also feel free to include excerpts from this email in the document discussed at JNC that will set out the implications of various Special Congress motions. It is critical that the National Executive Committee have this information when they make their decisions regarding what implications of motions they will communicate to Special Congress delegates.
Our formal request to our employer is for the NEC to ensure that delegates to Special Congress are fully aware of our concerns regarding the implications of their votes. As written, these recommendations represent a significant threat to our terms and conditions, and our recognition agreement, and we would ask our fellow workers and trade unionists not to act in such a way towards 51福利 staff.
Yours,
Joe Rooney
Branch Chair, Unite LE/127
Attachment:
LONDON & EASTERN REGION
Tuesday, 21 May 2019
Mr P Cottrell
Acting General
Secretary
University and
College Union
Carlow Street,
London 听听NW1 听听7LH
Dear
Paul
Re听听
Implications of Motion 80
I
am writing to you on behalf of Unite branch LE/127, which represents the
employees of 51福利. Many members of the branch, at all levels, are very
concerned about the implications of Motion 80 at 51福利 Congress 2019.
This
proposed rule change, regarding the delegation of the General Secretary鈥檚
duties, has a serious and damaging impact on the contracts of numerous 51福利
employees across all levels of the organisation, both Regional and National, as
many of them engage in negotiation and representation on a daily basis.
This is true of members working in the Policy & Campaigns, Bargaining and
Negotiations, Press & Parliamentary and Regional Organisation & Nations
teams, as well as senior managers. Roles like Regional Officials,
Regional Support Officials, and Caseworkers, for example, consist primarily or
solely of negotiation and/or representation, which is ultimately delegated from
the General Secretary. Passing this rule change as it currently stands
would be in direct conflict with our Collective Agreements by unilaterally
imposing changes to the contracts, roles and jobs of Unite members by removing
their roles and responsibilities.
The
rule change alters the broad power of a GS to delegate elements of their duties
to other employees, therefore mandating by implication in Rule that negotiation
and representation powers and duties cannot be delegated to employees has an
impact upon our existing roles and contracts of employment. As an illustration
this might include international work, TUC meetings, New JNCHES, USS JNC, TPS,
AoC, national and local bargaining and other external fora. The proposed
rule change could also have the purpose or effect of reducing some of our
members鈥� roles and/or removing key areas of responsibility to the extent that
their jobs are made redundant.
I
would be very surprised if the detrimental impact upon Unite members was in
fact the intention of the proposed rule change, which I believe is intended to
refer instead to the absence of the General Secretary due to e.g. long-term
sickness absence. However, as currently drafted, it has a much much
widespread effect, affecting almost all Regional staff and a very large number
of National staff in a significant and detrimental way.
It
is not for Unite to comment on the issues underlying the intent of this
proposed rules change, but it is critical that we highlight the unintended
consequences of the motion as drafted. We would request, therefore, that
the NEC gives serious consideration to withdrawing this rule change from
Congress in May 2019, and redraft it to better reflect the intention of the
rules change for the Special Congress planned for November for the purpose of
discussing rule changes. This approach, we believe, would avoid an unnecessary
and unwelcome escalation on all sides. We also formally request that
Congress delegates are informed of these implications so that they can
participate in an informed debate on Motion 80.
Should
the rule change be passed in its current form, then the Branch Committee will
make the necessary arrangements to lodge a formal failure to agree.
We
recognise and absolutely understand the sensitivities surrounding Congress and
motions which impact upon staff which is why we are committed to undertaking
steps which seeks to avoid any escalation in advance of Congress. We
believe that the above proposals provide a fair and proportionate compromise in
all the circumstances.
Yours
sincerely
A
Murray
Regional
Officer
cc听听听听听听听 Joe听
Rooney
听听听听听听听听听听听 Marianne Quick
Appendix Two 鈥� note and commentary from Thompsons on legal context for disputes committee proposal
The proposals set out in the final report of the Democracy Commission recommend that in national or multi-institution industrial disputes, once a dispute is called a Dispute Committee will come into being and will be delegated the power to conduct the official dispute. The scope of the Dispute Committee is strictly limited to the conduct of the dispute. Officers, NEC members and the GS are expected to abide by its decisions.
The Committee will comprise an elected delegate from each branch involved in the dispute. The table setting out the conduct of the dispute and where decision-making would lie suggests that the Disputes Committee will be able to make decisions about what kind of action to propose, writing the ballot wording, decision about strike dates, proposed wording of all communications to all striking group members, information to go with the ballot and wording of the ballot and communications urging members to vote in the ballot.
Currently under Rule 34.1, the National Executive Committee has the power to 鈥渁uthorise and endorse sanctions including industrial action, having regard to the decisions of Sector Committees. No other body may do so unless that power has been its explicitly delegated to it.鈥�听
The Trustees are concerned that the NEC would be required to delegate its powers under Rule 34.1 to the Disputes Committee explicitly on the occasion of each and every instance of multi-institutional industrial action. The Trustees say that it is difficult to see how this will operate in practice, they comment about the expense of many more NEC meetings and suggest that some of the Disputes Committees could be very large and may meet simultaneously and frequently. They suggest the financial implications of such an arrangement should be treated very seriously by the union.
The Trustees express their concerns about change to the organisation, management and direction of industrial action which might make the union vulnerable to legal intervention by employers.
The law
In almost every situation involving industrial action the organisers of action commit one or more tortious acts. The principles determine the term and liability of trade unions for torts committed by union members organising or taking part in industrial action vary according to the tort in question. Liability for the main industrial torts is covered by Section 20 of the Trade Union and Labour Relations (Consolidation) Act 1992. The industrial torts are:
I. Inducing
breach of contract
II. Interfering
with, or inducing interference with the performance of a contract
听III. Threatening
that a contract will be breached or its performance interfered with or
threatening that the union will induce another person to breach a contract or
interfere with its performance, and
听IV. Conspiracy
to commit or procure one of the above torts.
If any one of the torts is committed, the union may be able to claim immunity from legal proceedings if its actions fall within the protections provided by the statutory immunities.
The statutory immunities are also set out in the 1992 Act. In brief, a union is protected against action in tort where it has complied with the requirements of the 1992 Act. It is well known how complex the statutory regime is and how easy it is for a union to fall foul of its provisions. Only last week, the High Court intervened in the CWU dispute and granted an injunction to Royal Mail in relation to alleged breaches in relation to the conduct of the ballot and the ability and the requirement for the union to secure so far as is reasonably practicable, those voting do so in secret.
Breaching the statutory regime means that a trade union is liable in tort. There is a limited saving in that Section 22 provides that there is a limit on damages awarded against trade union actions in tort, the limit relates to the numbers of members of the trade union, in your case, as a union with more than 100,000 members, the maximum award of damages is 拢250,000. However, the limit applies to each breach, so in a multi-employer dispute if you fail to comply with the provisions, then individual employers could sue you and each recover 拢250,000. They would also recover their costs.
听
Section 20 makes trade unions legally responsible for industrial torts that have been authorised or endorsed by the union. Under this provision an act is taken to be authorised or endorsed by a union if it was done, authorised or endorsed by:
Currently 51福利 rules set out that it is the National Executive Committee who has the power to authorise industrial action. In practice, this is delegated, depending on the dispute, the Higher Education Committee, President or Vice President, from the Higher Education Sector and Vice-chairs to the Higher Education Committee. Similar arrangements exist in relation to disputes in the FE sector.
Although, as can be seen from the statute, it is possible for a union to provide, within the rules of the union, for a different body, like the proposed Disputes Committee, to have this power, in practice and in Thompsons鈥� experience, most unions tend to have a deliberately restricted number of people who are authorised to call industrial action and are responsible for ensuring that all the preliminaries, for example, writing the trade dispute letter, drafting ballot notice and arranging for the ballot, are dealt with appropriately and if necessary with legal advice.
To take one example, if a ballot notice is not drafted in accordance with the provisions in Section 226A of the 1992 Act then your immunity from tort action is lost. An employer does not have to challenge the defective notice at the time, they can decide not to challenge and bring damages actions at a later stage with the financial consequences set out above.
Another area of complexity is in relation to the calling of the industrial action. If any form of industrial action, for example working to contract or not doing over time, takes place without the protection of an industrial action ballot complying with the provisions of the 1992 act, then the union cannot subsequently put that right by holding a lawful ballot. These are the so-called 鈥減rior call鈥� provisions set out in Section 233 (i) (b) 鈥渢here was no call by the trade union to take part or continue to take part in industrial action to which the ballot relates, or any authorisation or endorsement by the union of any such industrial action, before the date of the ballot鈥�.听
The impact of this can be seen in GTR v. ASLEF (No. 2) where ASLEF faced a successful injunction application on a prior call point which prevented the union calling its members out following a ballot in relation to driver only operation on GTR, Southern and Gatwick Express. The two injunctions resulted in a costs bill of nearly 拢1 million to the union. The costs incurred by employers鈥� solicitors can be considerable as they were in the ASLEF case and even though there is a limit on the damages payable, there is no practical limit on costs that can be recovered (there are now quite complicated rules about cost budgeting, but in Thompsons鈥� experience, Courts tend to pre-authorise the significant amount of costs claimed by the solicitors who tend to act in these kind of cases, Eversheds, Baker & McKenzie and others).
Another practical consideration for the union is if a large number of people are involved as delegates to a Committee, the risk of one or more of them urging people to take action that has not in fact been authorised by the union is exacerbated. While there are provisions in the legislation that the union can repudiate acts that are not called in accordance with law, the provisions require the union to write to every member who may have heard the call to action and repudiate the action. This can have the effect of undermining the union鈥檚 strengths with employers and their own members and is generally unpopular.听 In Thompsons鈥� experience, unions will endeavour not to have to utilise these provisions.
The desire of the Democracy Commission to have greater involvement of local branches in steering industrial disputes is understandable, but the proposed Disputes Committee is fraught with many practical and legal dangers with potentially heavy legal costs for the union.
Thompsons has acted in many of the leading industrial action cases since its foundation in 1921. The firm acts for a large number of trade unions in relation to industrial action matters, given our expertise. Thompsons have looked at whether there are any trade unions currently who have the kind of Disputes Committee which is proposed by the Democracy Commission. While there are at least two trade unions, UNISON and PCS, which have National Disputes Committees, they are sub Committees of the National Executive Council/Committee and have delegated powers to deal with the detail of any industrial action balloting process. The Committees will invariably obtain legal advice on these matters and also consider requests for local industrial action not affecting national terms and conditions. Most other trade unions have a structure where the National Executive Committee or the General Secretary and President are the ones responsible for industrial action, given the risks outlined above.
There would also be practical difficulties with such a large Committee in ensuring that all delegates have an appropriate level of knowledge to deal with the complex legal issues that arise. Just to take one example, if material sent out during the course of a ballot by the union in any way conflicts with what the union is balloting its members on, employers can challenge the ballot saying that the individual member being balloted is confused about the issues, and therefore much time is currently spent by the 51福利 team to ensure that any ballot inserts, or wider publicity material, is consistent with the ballot notice and ballot paper. Also, any communications urging members to vote in the ballot has to be consistent with those notices.
While the desire of those involved in the dispute to have a say about these matters is understandable, in practice the legal and industrial consequences of any slipup are fairly catastrophic, both to the union鈥檚 industrial strategy and finances.
Even if it were possible to ensure that everyone had the same level of knowledge, how would the union make sure that new delegates acquired that knowledge quickly?
The Trustees raise issues about the costs of meetings. Not all 51福利 representatives have facility time, so they make might have to take holiday in order to participate. Given the numbers involved the union would need to think very carefully about how decision-making worked at the meetings of the Disputes Committee. With potentially very large meetings of hundreds of delegates in a national dispute, would you have a show of hands?听 What would your quorum be? How would delegates be elected and accountable?
The other issue the union may need to consider in terms of the size of the body, is risk management. One of the key issues about planning industrial action is to keep as much information as possible away from the employers so they do not have an opportunity to sabotage your intentions. If you have a large group of people discussing your plans, particularly given the availability of social media, it would be easy to see that your information might not be confidential for long.
The union could also encounter difficulties if different delegates attended from the same institution and disagreed with the decision that their delegate had previously made. It is increasingly the case since the 2016 Trade Union Act that forward planning is both necessary and desirable, for example, as you now have to decide what your action short of strike is going to be in order to include it in the ballot notices, you cannot later add a new form of action short of strike. This requires a level of discipline which is possibly quite difficult to maintain with a large group of people.
Accordingly, Thompsons would strongly advise very careful consideration before taking a decision to set up the proposed Disputes Committee. The legal, financial and industrial risks to the union could be considerable and could undermine the intentions of the proposers of the Disputes Committee.
Thompsons Solicitors LLP