- Update Wednesday 9 April 2003
MEETING WITH EUROPEAN COMMISSION
LEAF’s meeting with the European Commission’s legal team took place in Brussels on the 1st of April 2003 as planned.
Following the United Kingdom’s letter, stating categorically that following a transfer the new employer could unilaterally and Lawfully end a collective agreement because collective agreements were not binding in English Law, officials within the Commission’s services advised us that the United Kingdom’s response provided grounds for the Commission to pursue our complaint further.
We were also orally advised that we may need to overcome the question of political will that would undoubtedly be encountered, because our complaint was against the United Kingdom and not one of the less significant Member States. In short the Commission was likely to be reticent about bringing proceedings against the UK.
The clear failure of the effective operation of the Acquired Rights Directive in the UK, resulting from the non-binding nature of collective agreements under Section 179 TULRA, was and remains the mainstay of the logic of our argument that the Commission was bound to bring Infringement Proceedings action against the UK. Therefore, regardless of the rider provided by an officer of the Commission’s services, concerning the possible lack of political will of the Commission to act on our complaint, we anticipated a rather different meeting to the one we actually encountered.
There is little doubt that our complaint to the Commission, especially in the context of the UK’s brazen response to the Commission’s letter effectively trashing the protection of the Directive, had created a sense of panic among the officials who serve the Directorate's hierarchy.
That this was so was made clear by the exasperated, often aggressive, and garbled approach exhibited by a key figure from the Commission’s Infringement Committee, who was a late replacement for the Head of Legal Services at the meeting.
The fact was that the UK had laid the cards on the table in such a barefaced fashion, that it begged the Commission to act on behalf of United Kingdom citizens to redress the protections of the Directive. However, it was clearly left to the officials to fumble rather clumsily and unconvincingly in their presentation of false arguments as to why the Commission should not pursue the matter. Indeed the character and atmosphere of this meeting was significantly at variance with our earlier meeting with the Commission’s services.
That earlier meeting had led to the Commission writing to the United Kingdom on the question of the lack of legal force of collective agreements following the transfer of an employer, and the victimisation of staff in regard of the failure to make pay increases and deny career progression. It was obvious to us that the official from the Infringement Committee had been drafted in to try to head us off once again.
He did not and will not succeed for the reasons we set out below.
1] The United Kingdom’s domestic Law position is unequivocally in conflict with the effective operation of Community Law.
2] The application of Community Law by the UK courts resulted in domestic Law being given super-ordinate status over Community Law – the tail wagging the dog.
3] In the case of [Commission v. United Kingdom]- Case 165/82 – the European Court of Justice’s judgement provided a clear line of reasoning that, in regard of Article 3 of the Acquired Rights Directive, a legal obligation was placed upon the transferee of an undertaking to observe the terms of a collective agreement, irrespective of the non-enforceability of collective agreements under UK domestic Law.
4] The above case is cited in the Commission’s own National Report.
5] That the TUPE regulations “preserve” the non-enforceability of collective agreements as against the transferee. A point also made in the Commission’s National Report.
Mr. Feenstra, speaking for the Commission said, the Commission is only able to act in circumstances of the incorrect Transposition of the Directive into UK Law or the incorrect Application of the Directive by the UK courts.
While the TUPE regulations speak of observing the terms of a collective agreement on the same terms as the transferor, because collective agreements are non-binding in the UK, this automatically means that Article 3 of the Directive is not worth the paper it is written on.
No protection of the terms and conditions of employment is therefore afforded to UK citizens, following a transfer of employer. The wording of TUPE is another legal sleight of hand – appearing to give protection to the employee, when in fact it does not.
The Transfer of Undertakings Regulations  originally transposed Directive 77/187 EC into UK Law. It was clear at that time that the non-binding nature of collective agreements in UK Law would result in a clear conflict between domestic Law and Community Law; a conflict that should have been dealt with at the original date of transposition.
In order to meet the requirements of article 3 of the Directive – ”that transferred collective agreements had legal force and could not be ended on the whim of a new employer” – collective agreements in UK Law should have been made legally binding in 1981 to meet the requirements of the Directive.
If action by the UK had been taken on the matter at the time of originally transposing the Directive, the Directive would have been fully operational today, and no arguments as to so-called “new rights” could have obtained.
The failure of the Directive to operate fully in terms of its protections is therefore, in our view, a TRANSPOSITION PROBLEM that dates back to the original transposition of the Directive in 1981.
When we raised the question of the MISAPPLICATION of Community Law by the courts, we were rudely told by Feenstra that the Commission could not act on the basis of “one” case, – even though the case we brought was a test case that potentially affected thousands of Lecturers – and that to satisfy the Commission, we would have to demonstrate a number of other “High Court” findings that misapplied the Directive in the same way – i.e. cases that found that, as collective agreements were not binding in the UK, Article 3 of the Directive gave employees no protection in the event of a transfer of employer.
NOTE: The non-binding nature of collective agreements is enshrined in Section 179 Trade Union & Labour Relations [Consolidation] Act 1992. In other words, it is statute Law. If a transferee employer wished to end collectively agreed terms following a transfer, no court in the UK whether “high” or “low” would be in a position to say that the new employer could not end the collective agreement. The courts would have to adhere to Section 179 of the Trade Union and Labour Relations [Consoloidation] Act .
Further, the position of the courts in the UK would also be dictated by the case Law of the House of Lords in British Fuels v Baxendale and Wilson v St Helen’s Borough Council . In that case Lord Slynn stated that the purpose of the Directive was “not” to alter the rights and obligations after a transfer. In common language, as collective agreements were not binding before the transfer, they could not be regarded as binding after the transfer.
In other words, to make collective agreements binding post-transfer would be a new right according to Slynn’s analysis, and according to Slynn not allowed.
We say that giving legal force to collective agreements is not a new right, but the upholding of an existing right in Community Law. See LEAF’s transposition argument above.
In the current circumstances therefore, in addition to having to observe and correctly interpret TULRA, the courts would have to follow the case Law of the highest court in the land – the House of Lords. The findings of the UK courts in such circumstances would therefore be a foregone conclusion and Feenstra’s demand for further examples of the misapplication of UK Law by the courts – a time wasting RED HERRING.
RESULT: Currently, article 3 of the Directive has no force in the UK, apparently regardless of the obligation placed on Member States by Article 10 EC to ensure the full and proper operation of Community Law.
LEAF will not allow the Commission to abrogate its responsibility to ensure that Directives promulgated by the European Community are fully upheld by Member States.
PLEASE REMEMBER THAT THE COLLECTIVE AGREEMENT KNOWN AS THE SILVER BOOK REPRESENTED THE ENTIRE CONTRACTUAL RELATIONSHIP BETWEEN LECTURERS’ AND LOCAL AUTHORITY EMPLOYERS BEFORE APRIL 1993.
1] A full response to the Commission will be forthcoming.
2] A letter will be sent to the European Ombudsman setting out the Commission’s maladministration of our complaint.
3] We will Petition the European Parliament on the matter of the Commission’s mishandling of our complaint.
- Update Monday 24 February 2003
LEAF TO MEET WITH THE COMMISSION ON THE TENTH ANNIVERSARY OF INCORPORATION
A meeting with the Commission’s services in Brussels has been arranged for the 1st of April 2003. The date of the meeting is an auspicious one, coinciding as it does with the 10th Anniversary of the Incorporation of Colleges in the United Kingdom. The Union’s General Secretary and National Officer will attend the meeting, together with two Members of the European Parliament who have provided considerable support for LEAF’s action. Snrs. Dorrego and Pereira will represent the Commission’s services.
The object of the meeting is to present further forceful arguments that reinforce our view that the United Kingdom has failed to meet its obligation to ensure that Community Law is fully functional. LEAF will provide unequivocal evidence regarding the failure of Community Law to protect the interests of UK citizens in the event of a transfer of their employer, and for that reason will insist that the Commission commence Infringement Proceedings against the United Kingdom.
Members will be aware that the United Kingdom continues to insist that it is removed from the field of application of article 3 of the Acquired Rights Directive, by virtue of the fact, that in domestic Law, collective agreements are presumed not to be legally binding. In essence, the Government, and the UK courts, continue to attribute super-ordinate status to domestic Law over Community Law. The consequence is that Community Law is relegated to a subordinate position when the reverse should apply.
The position adopted by the United Kingdom in regard of article 3 is a clear case of the tail wagging the dog.
We say that in order to give full and proper effect to the Acquired Rights Directive and the TUPE Regulations, collective agreements must be construed to be legally binding in the event of a transfer of employer. Given that scenario, a retrospective application of the position, as modified to meet the requirements of Community Law, would have major implications for the situation faced by Further Education Lecturers since 1993.
If, as we believe it must, it is determined collective agreements must be regarded as legally binding to enable the spirit and purpose of Community Law to be met, it would mean that post-transfer, even new employees in Further Education colleges should have been appointed on Silver Book terms until such time that those terms were re-negotiated.
Further, LEAF will be looking to the European Commission to take action in regard of the continuing discrimination that has been uniquely leveled against those Lecturers who remained on Silver Book terms. When we spoke to the Commission services on the matter of the pay and career freeze back in September 2002, a policy which is now in its 10th year, great concern was expressed by the Commission’s services in regard of the punitive action taken by the colleges and the acquiescence of the Government.
Members’ are assured that LEAF will be vigorously pressing for decisive action on the matters we have raised with the Commission regarding the massive injustices that have been suffered by Lecturers in Further & Higher education since 1993.
It is interesting to note that the Government has recently backed a deal to protect the pay and conditions of council workers whose jobs are privatised.
Lest we forget, before the 1st of April 1993, Lecturers were “council workers”.
Sadly, no government, Tory or New Labour has shown any interest whatsoever in rectifying the miserable treatment of Further Education Lecturers, nor will the so-called deal be retrospective.
However, members can take heart that their Union has the competence and the tenacity to ensure that we shall succeed in achieving the redress that is due to those who work so hard within our profession.
LEAF– Working Unstintingly for Justice for its Members
JOIN US TODAY AND BREAK OUT OF THE CYCLE OF LEARNED HELPLESSNESS.
- Update Wednesday 12 February 2003
LEAF CALLS FOR EU ACTION ON LECTURERS’ CONTRACTS SCANDAL
LEAF officers to meet commission’s legal services
Readers of this web-site will recall that LEAF has lodged a number of specific complaints relating to the UK Government’s actions before, during and after the incorporation of Colleges in 1993. We specifically focused on the rights of Lecturers following the transfer, and have contended throughout the past ten years that the Lawful rights of Lecturers have been unLawfully trashed. We present below an update for the benefit of all Lecturers in the sector, in order that our present position is clear.
The UK Government’s response to the EU Commission
LEAF officers met with the Commission’s Services in September 2002, to further elaborate and provide supporting evidence and legal argument in support of our complaints on the matter of Lecturers’ contracts. Following our detailed submission, the Commission agreed with LEAF’S contention that a number of fundamental questions needed to be answered by the UK Authorities. The Commission duly wrote to the UK Authorities in October 2002, receiving a response on 9 December 2002. That response has now been made available to LEAF.
Although the replies to the specific questions put (see previous material for details) were, in our view, predictable, the letter highlighted the fundamental differences between our views on the ARD (Acquired Rights Directive) rights of Lecturers (and by extension, every worker in the UK who works on a contract that has collectively agreed terms– millions in number), and that of the UK Authorities.
Put simply, the issue at dispute is this: we say that the UK position on the non-legally binding nature of the collective agreements in the UK, has enabled the Government, now backed by the UK courts, to claim that it is removed from the field of application of the Acquired Rights Directive, in respect of all references in Article 3(2) of that Directive, relating to collective agreements, which by virtue of this interpretation, are rendered ineffective.
Our clear conviction is that such an interpretation collides with the protection afforded by the ARD, and that the ARD must take superordinate status in this conflict.
Why we believe we are right and that we will win
The above situation, which appears to be the settled position of the UK Authorities, is the allegedly 'legal' basis for the farcical situation that was encountered by Lecturers following incorporation in April 1993, when despite the apparent protection of European Law, they: were subjected to a pay and promotion freeze, suffered harassment and intimidation to sign a new personal contract, received deliberately wrong and misleading information from their new employers, and were threatened with disciplinary action, dismissal or redundancy if they objected.
Many Lecturers said to LEAF, which came into being at the time of these events: ‘But we know that what’s happening is unLawful’. We agreed, but had to begin the long process of challenging the employers, by seeking legal redress. That process has now led us to the EU Commission’s Legal Services.
Six reasons why you should be confident of our stance
We have always believed that our position on this matter is correct for several reasons.
Firstly, there is a trail of factual evidence, going back to a time before the transfer, which demonstrates unequivocally the then Government’s intentions to destroy collective agreements. The transfer was used (unLawfully) to effect this.
Secondly, the Government assumed that the transfers were not within the field of application of the Directive. NATFHE’s successful application in October 1992 that the impending transfer fell within the scope of the ARD put paid to earlier assumptions that new contracts could be effortlessly introduced following the transfer. It did not stop them, though.
Thirdly, our interpretation of the status of collective agreements in the context of a transfer has support in the case Law of the European Court of Justice. That is why we asked both UK courts, which heard our case, for a reference on key questions of European Law. Incredibly (but, we think, deliberately) both courts refused, claiming that the issues were ‘clear’.
Fourthly, as stated above, we are firmly of the conviction that the UK Courts’ view that the conflict between National Law and European Law on collective agreement rights should be resolved in favour of domestic Law, is fundamentally wrong.
Fifthly, that the present state of affairs is effectively allowing the UK an ‘opt-out’ clause from the Directive, uniquely in Europe, and obviously wrongly.
Finally, we have waited for nine years for a ‘killer punch’ from the employers’ side on our case. That is, we have looked for arguments from their side which were irrefutable. They haven’t come. Because they don’t have any! Instead we have had evasion, false reasoning and sophistry.
None of that has persuaded us.
Perhaps the employers and the UK Authorities thought that the matter ended there. Unfortunately, for them it didn’t!
What are we asking for?
We are now asking the Commission to bring to an end ten years of shameful discrimination against Lecturers in the UK. To be clear about this, and for the avoidance of doubt, we are saying that the contracts of all Lecturers in the sector are protected by the provisions of the ARD, when properly interpreted. This applies to Silver Book, New Contracts, and includes Lecturers who have joined since incorporation, not merely those whose contracts transferred.
In case we are wrong about this, we are happy to submit our arguments to the European Court of Justice.
The pay and career progression freeze was unLawful, as was the individual transfer of Lecturers from the collective agreement, which, of no small importance, was written into individual contracts.
Our clear view is that the UK is also in breach of Article 10 EC which carries a responsibility to give effect to the objectives of the Community.
New meeting arranged between LEAF officers and Commission
Following the response of the UK Authorities, which contained no meaningful or substantive answers to the Commission’s enquiries, a further meeting has been arranged, to take place in March 2003. LEAF has submitted a position paper to the Commission summarising the situation at this juncture, and our settled position on this critical matter. (link to document)
Final preparations are now being made to present detailed arguments which we believe will remove any doubts about the correctness of our position, and, ipso facto, of the incorrectness of that of the UK Authorities.
These argument will be forcefully presented to the Commission in March.
We pay tribute to your support and encouragement
LEAF has had to carry this battle to the employers alone. Well, not quite alone. We acknowledge the steadfast support of LEAF members and other Lecturers throughout the past ten years.
We pay particular tribute to those Lecturers who have tried to hold out against the unLawful actions of the College employers.
To those Lecturers who remain on the Silver Book, we say to you that we are moving as fast as we can to bring relief. We believe that the debt of gratitude that is owed by all Lecturers to these die-hard professionals will only be fully realised later.
We ask all Lecturers to support LEAF’s stance and to bring the details we have given here to their colleagues’ attention. Print off and study this article and discuss it with your colleagues.
Contact us on our phone number or by email at email@example.com to discuss any queries arising from our work. It is very important to realise that our strategy is one to raise the pay and conditions of all Lecturers.
We are very clear about one thing: no settlement will take place that does not include LEAF, and that does not deal with all outstanding grievances. That is why the morass that is the present fragmented pay negotiation system will also be a casualty of LEAF’s victory.
A further information item on other aspects of our complaint will be issued very soon
- Update Thursday 9 January 2003
LEAF COMPLAINT TO EUROPEAN COMMISSION– – FURTHER DEVELOPMENTS
Following LEAF’s complaint to the EU Commission and a subsequent meeting between Commission Officials and LEAF Officers in which detailed argument was presented in support of the Lecturers’ case, the Commission wrote to the United Kingdom Authorities in October 2002 to ask for comments on two specific issues. These were the pay and promotion freeze imposed on Further Education staff who retained their pre-transfer conditions following incorporation, and the further restrictions placed on retirement benefit eligibility by the United Kingdom Government in 1997. These matters are central to the contractual dispute that LEAF has with the Further Education employers in the UK and we understand that the United Kingdom Government has now responded to the Commission.
We Remain Completely Confident of the Correctness of our Stance
Ten Years of Injustice Must be Remedied
Extraordinary Claims Require Extraordinary Proofs
What Happens Next
LEAF, WORKING UNSTINTINGLY FOR JUSTICE FOR ITS MEMBERS.
- Update Friday 19 July 2002
The long awaited case of Ashton v. Mid-Cheshire College is due to be heard on the 10th, 11th, 12th & 13th of September 2002.
The case involves complaints of bullying, sex discrimination, constructive dismissal and other contractual breaches. Among the latter is the claim that, as a Silver Book employee, Mr. Ashton did not receive a bona fide pay review over a long number of years. This fundamental breach continues to be applied to those Lecturers who retain their lawful right to their pre-transfer local authority contracts.
Once again, the evidence is damning on this point.
1] Eight years of pay freeze marks out a policy to drive Lecturers off their national collective agreement and cause them to sign a contract that ended all earlier agreements and prevented any new collective agreements from being incorporated into the new personal contract.
2] Clear evidence of intention in CEF Bulletins. As just one example, and there are many, many more, states:
"All staff choosing to remain on the old local authority contracts shall continue to have their pay reviewed annually each September, in the full knowledge that the cost of those who voluntarily transfer will leave no money available for those who choose to continue to operate the Silver Book restrictive practices."
Straight from the lips of the then Chief Executive of the CEF Roger Ward a former National Officer of the union then known as ASTMS.
3] The denial of Further Education Lecturers pay, being connected with the intention to remove collective agreements, ties in with the ruling of the European Court of Human Rights in cases of Wilson and Palmer. As we have already indicated, a third complaint is being prepared for the European Commission on the matter of the freezing of Lecturers pay, using the ECHR judgment as its basis.
The Court ruled that the United Kingdom had violated Article 11 of the European Convention on Human Rights.
Keep Your Eyes on the Prize.
LEAF WORKING INCESSANTLY FOR THE INTERESTS OF YOU AND YOUR FAMILY.
- Update Sunday 10 March 2002
LEAF's complaint to the European Commission relating to the unlawful transfer of staff from collective agreement terms and conditions of service, is set to be presented to the European Parliament.
The Commissioner has responded to LEAF's complaint by saying (as we expected her to!), that it (the Commission) does not want to look at LEAF's file of evidence before recommending to a future Commission meeting that no action be instigated against the UK Government. This follows lobbying of the Commission by New Labour representatives following the receipt of LEAF's complaint.
The Commission has written to LEAF asking that we supply any further points (!) we wish to make before a formal decision is taken. LEAF has responded with a six-page response to the Commission's letter of explanation, comprising a point-by-point rebuttal of the Commission's reasoning. Without going into detail, it is very clear that the Commission has simply not understood the complexity of the case. The situation has not been helped by its inexplicable refusal to accept a large file of supportive evidence and explanation offered by LEAF.
In fact, LEAF officers and counsel had been expecting such a response since the time the complaint was sent. Back in November 2001, a Labour MEP let it slip to a LEAF member that the Commission had decided back then to reach the decision which was in late February formally notified to us. It is worth saying here that our view is that such a decision could not have been reached in the context of a full examination of all the available evidence. Throughout the time the Commission was considering our complaint, it steadfastly refused to accept the file of evidence LEAF had prepared.
Indeed, in a further letter, which reads like an attempt at justification for inaction, the Commission complains to LEAF that it has never had so many separate communications on a single complaint, and that it found it difficult to cope with the situation. LEAF has responded to this complaint by reminding the Commission that we will not accept laziness, incompetence or a lack of political will as a valid reason for inaction, when staff have had to endure unlawful behaviour on the part of the UK Government.
LEAF's next move will involve a meeting with the Commission's officers very soon, where we will again present our file of evidence, as yet unseen by the Commission. In parallel with this, a formal petition will be presented through the Petitions Committee of the European Parliament. This action has been recommended to LEAF by a number of MEPs who are in agreement with our claim. Among their number is Roy Perry MEP, who was until his election, a Silver Book Lecturer in a College of Further & Higher Education. Mr. Perry is Vice-President of the European Parliament's Petitions Committee. It's a funny old world, as Mrs. Thatcher once said!
The Parliament, in considering the petition, may well have cause to summon the Commission to explain itself.
LEAF is ready to appear before the Petitions Committee to explain its case.
In order to clarify LEAF's position on the matter of Lecturers' contracts, and for the avoidance of doubt, we will again state our view at this juncture. We are completely confident of the correctness of our point of view on the matter of the transfer, Lecturers' terms and conditions, and European Law. The factual evidence merely underscores this. That is why we are not surprised at the (official) response to date. However, we believe that it is not now a question of if, but when, our campaign is successful.
So please spread the word, and encourage your colleagues to support LEAF
STOP PRESS: Second complaint on Lecturers' pension entitlements about to be lodged
A further complaint to the Commission, and again, against the UK Government, has now been drafted and checked. It will be formally lodged very soon. The complaint, which like the first, relates to events surrounding the transfer in 1993, concerns Lecturers' pension rights between the ages of 50 and 60.
A full explanation, together with a transcript of the complaint, will be available on this website within two weeks.
Update Sunday 6 May 2001
In a recent letter to the remaining Silver Book staff at Rother Valley College, the Principal, David Wilce, threatened to dismiss those staff who refused to transfer to a new and worse college contract. The majority of Lecturers who remained on their LEA terms are LEAF members.
LEAF wrote to the Principal to advise him that should he decide to dismiss our members for refusing to accept his offer to transfer to a new contract, legal action would certainly ensue.
Following that exchange of correspondence Wilce has written a further letter to the affected staff. The letter dated 1st May says,"the College management has decided not to issue notice to Silver Book contract holders".
Update Saturday 14 July 2001
Draft Letter to your Principal
I am writing to you concerning the fact that my salary has not been reviewed this year (as in the past few years).
As you will be aware, I decided not to take up the offer of a new contract with the College in 1994.
Since that time my salary has remained static and, if it has been reviewed, I have been given no increase. I understand that the reason for not reviewing my salary in the first year or two after the offer of the new contract, was to induce me to accept the new contract.
However, it seems to me that having failed in its objective to persuade me, the College is now persecuting me for having failed to go along with its intention to move away from the collectively agreed Silver Book terms.
I would be grateful if you would now reconsider the Colleges position on this issue and confirm that you will increase my salary with effect from September 1st to reflect, at least, increases in the cost of living since I last received an increase.
If you are not prepared to do so, please let me have a detailed justification for your decision which, it seems to me, cannot, given the financial situation of the College, be based on financial considerations.
I would be grateful for an early response.
Download this letter to print out
Update Sunday 8 July 2001
LEAFs counsel to draft a comprehensive complaint to the European Commission
We apologise to our members for the delay in providing information on the outcome of the above case. However, we had to adhere closely to the requirements set down by the Judge. In fact, while we are now in possession of the Reserved Judgment, we are still prohibited from making and circulating copies of it. The copy we have states that an official transcript of the Judgment will be sent when available. We assume that at that stage, the full fifty-five page Judgment will we accessible to our members via the EAT web-site!
Counsel to draft complaint
Our counsel, Eleanor Sharpston QC, has advised us that it would not make sense to try to take the matter further in the United Kingdom court system. However, she has advised that a detailed complaint should be drafted to the European Commission. We have instructed her to undertake that task and the task is underway. LEAF will publish the complaint, as prepared by our lawyers, in full, and on the web-site as soon as it is prepared.
LEAF must be careful in regard of its comments about the Judgment in this case. However, suffice it to say that our lawyers have expressed major disagreements with the EATs interpretation of a number of points of law. These disagreements involve matters of European and domestic law. Further, the Judge, refused our counsels request that he refer key questions of EC law to the ECJ and gave short shrift to critical factual information. All in all, the EATs judgment leaves a great deal to be desired
So far as the facts of the case are concerned, the Judge stated that we must be able to establish the causal link between the transfer of employer and the worsening of contracts. This he said was the Exocet point. We of course were very happy to do so.
Our counsel directed the Judges attention, orally and in writing, to a list of documents, for which she made no claim to completeness, that clearly showed the link between these critical events.
This information, once again, was ignored or disregarded in the same way that it was ignored or disregarded by the earlier tribunal. Some of the documents to which the EATs attention was drawn were written two years before the transfer. They referred to an intention to end collective bargaining, and to the fact that the Governments use of holdback would bring about a fait accompli in contractual change for lecturers, in addition to many other critical references identifying the link between events. In the EATs Judgement, as in the earlier tribunal decision, this information was simply airbrushed out of the picture. Quite amazing eh! Not even mentioned.
Independence and impartiality rules - or does it?
Apart from the manner in which our case has been treated in the tribunal system, we have for some time had our concerns about the impartiality and independence of the tribunal system. We had expressed these concerns to our counsel in the course of 1999. Following our counsels claim that the first tribunals decision was perverse, a point by the way not accepted by the EAT, we came across the case of T. Smith -v- the Secretary of State for Trade and Industry .
The case involving a company known as French Tarts Patisserie, raises the important question as to whether the Tribunal Service can be regarded as impartial and independent in cases that involve the Government. The conclusion reached is that the Service contravenes the European Convention on Human Rights and the Human Rights Act.
The European Convention provides that every citizen must have access to an independent and impartial tribunal. This does not appear to be possible in circumstances where the Tribunal Service is in such close proximity to government and where the Secretary of State has such wide powers. Among other arrangements enabling government control, it appears that the Secretary of State for Trade and Industry has wide powers to intervene in tribunal cases to which he is not a party.
In the light of Smith, those of us who bring cases which directly or indirectly involves a government, must wonder whether tribunals are appropriate to use as a level of the judicial system.
Further, the question arises as to whether public sector workers in general are to be effectively denied the benefit of using the tribunal service, with its general no costs rule, if they have a case against their employer - i.e. a government department or an emanation of the State. After all the independence and impartiality of the system is of critical importance if one is seeking justice.
For anyone who is interested, T. Smith -v- the Secretary of State for Trade and Industry is readily accessible from the EATs own web-site. If you have difficulty accessing it, e-mail us.
More details of our efforts to achieve justice for our members will be posted shortly.
Update Wednesday 30 May 2001
LEAF and its Legal Team have now had an opportunity to examine in detail the fifty-five page DRAFT JUDGMENT handed down by the Employment Appeals Tribunal (EAT) on the 24th May 2001.
As agreed by the Judge at the end of the hearing, upon receipt of the draft, counsel may indicate what if any applications their clients wish to make having regard to the Judgment. Applications, together with supporting submissions, must be made available to the EAT by 12 noon on the 5th June 2001. Draft Judgments are now a common practice of the High Court.
Counsel for LEAF will be making further applications in regard of legal points advanced and accepted by the Judge and his lay officials. We shall be meeting with our solicitors and counsel at the Temple in the next couple of days. Our aim will be to extend and develop the strength of our legal stance in relation to the judgment, and to discuss and plan our strategy to achieve a way forward in this matter.
Members are advised that, at this stage, LEAF cannot publicly discuss any details arising from the EAT's judgment in this case.
For the benefit of our members however, and for those College Principals who regularly visit our web-site, we simply reiterate that:-
WE REMAIN COMPLETELY CONFIDENT IN THE CORRECTNESS OF OUR POSITION IN BOTH FACT AND LAW.
Update Saturday 26 May 2001
The Draft Judgment in the above case was received on the 24th May 2001. In accordance with High Court practice, counsel is able to make applications on behalf of their clients in regard of the Judgment. Submissions must be made to the EAT by the 5th June 2001.
LEAF will be meeting with solicitors and counsel in the next few days to decide what further applications need to be made in regard of the Judgment in this case. Members will be kept in touch with events as they unfold. LEAF remains confident in the correctness of its position.
Update Sunday 6 May 2001
We have been in touch with the Employment Appeal Tribunal to try to ascertain when the Judgement in Ralton & Others -v- Havering College of Further and Higher Education is likely to be given.
The EAT have indicated that the target time for reserved judgements is three months.
This would imply a date up to and including the 19th of May 2001. However, if the timing of the earlier tribunal decision was anything to go by, we advise members not to hold their breath. Naturally, we will inform members of the Judgement immediately it is received.
Update Monday 9 April 2001
LEAF anticipates that the Judgement in the Havering proceedings will be handed down by May at the latest. Those who have carefully followed events will know that this important case was originally submitted to the judicial process in September 1994.
For seven years LEAF has unwaveringly adhered to the position that the contracts academic staffs are now caused to work to in Further Education are unlawful. We have tenaciously pursued our objective of achieving justice for our members because we know that we are correct in fact and law. Our members have continued to support us in our efforts to remedy the grave injustices that have occurred in the sector, because they too are confident of our correctness.
We take this opportunity to thank them for their continuing support. We firmly believe that they will eventually be handsomely re-paid for their support.
Make no mistake about our plans. When we succeed with this case, either in the UK or in Europe, we will pursue the Government and the colleges for financial redress. Those who visit our web-site, including the AoC and college principals, will know from our track record to date that we say what we mean and we mean what we say. Our members are assured that we shall immediately instigate further proceedings for the recovery of financial losses incurred by both Silver Book and staff on new contracts.
The action will also have important implications for the pension entitlements of our members who remained on the Silver Book contract. As the Teachers' Pension Scheme is a final year salary scheme, there will need to be a re-calculation of entitlement of those who had to access their pension on the basis of a frozen salary.
Remember, if the new contracts are deemed to be unlawful, the denial of pay increases to those who remained on the Silver book conditions will also be unlawful.
Staff who have yet to join LEAF are advised that it is important that they do so. LEAF and only LEAF has the knowledge, skill and tenacity to take the matter forward.
Update Wednesday 1 March 2001
Members of LEAF who are also in NATFHE membership will know that NATFHE is currently making plans for a one-day strike in pursuit of this year's pay claim.
In an apologetic letter to David Gibson of the AOC, dated 29 January, and widely circulated among its branches, Paul Mackney, NATFHE's General Secretary, declares that the patience of lecturers has run out'. Notwithstanding this, he goes on to offer the College employers a further four years to restore lecturers' pay levels.
TRAGEDY DESCENDS INTO FARCE
In fact, the patience of most lecturers with NATFHE ran out a long time ago. Mackney's letter, in which he sets out the union's aspirations for the future, serves only to illustrate what a shambles its policy has become, and why the employers largely disregard its utterances. NATFHE's views on pay and conditions have no consistency, logic or even direction.
Mackney tacitly admits that his union's strategy over recent years, to participate in a series of 'working parties' in the National Joint Forum with the Association of Colleges, has failed to produce any substantial improvements to the lot of lecturers. Here's Mackney's comment: 'Whilst this work has been most constructive (sic), it has not dealt with the principal causes of what the Secretary of State called the 'rock bottom morale' of lecturers and other college staff. These issues are the pay and conditions of service of lecturers'
In other words, the agenda for the past two years has been entirely controlled by the employers, who have gained useful concessions from NATFHE and the ATL, while yielding nothing in return.
In 1999, NATFHE called off its dispute with the AOC over new contract imposition, and determined instead to immerse itself in the world of 'working parties' ( its favourite activity). Mackney's statement is mere confirmation that this policy has been an abject failure.
SILVER BOOK ABANDONED
Throughout the period since 1993, when NATFHE signed a new procedure and recognition agreement with the AOC's predecessor body, the CEF, the employers have attempted to bully and cajole lecturers off the Silver Book and onto new, local conditions of service. This process was boosted in 1994 when NATFHE abruptly abandoned the Silver Book and the 'Hold the line, don't sign' campaign, and instead encouraged local branches and regions to 'negotiate' local contracts. Many thousands of lecturers opposed this sell-out and fought bravely to keep national conditions of service, and we pay tribute to them. The shambolic retreat by NATFHE's leadership though, soon led to the imposition of CEF contracts, with a NATFHE endorsement, in the majority of colleges. Shortly after this time, Roger Ward, architect of the new contracts,and who was later brought crashing down by LEAF's efforts, was made a CBE for his 'services to education'. Meanwhile, the white flag was fluttering over Britannia Street!
ENTER 'DEALS ON WHEELS'
Every hard-pressed lecturer will agree with Mackney's complaints about the negative effects of the new contract. The contract has ushered in, according to Mackney (and we agree): low pay, unequal pay, discriminatory practices, extensive use of fixed-term contracts, and the inappropriate (sic) use of agency staff, all-pervading stress.. etc, etc. All of this, though, with contracts of employment that NATFHE has endorsed! LEAF's policy, which was to fight for the retention of the national collective agreement, was systematically rubbished, not only by the employers (we would have worried if they hadn't), but by NATFHE too, which was anxious to be seen to be developing a rapprochement with the employers and the New Labour Government.
Most of these exploitative local contracts were brokered by NATFHE's Regional Officials, who had been transformed from guardians of the collective agreement, to facilitators of new contracts. Few carried out the role with more success than Paul Mackney, the West Midlands Regional Official, who gained the nickname 'Deals on Wheels' for his skill in putting the new contracts in place on his 'patch'. It was a moniker he seemed to approve of. Mackney followed up this success by gaining election to the post of General Secretary, to the general approval of the leadership of the Association of Colleges.
HEY PRESTO! THE SILVER BOOK'S BACK IN FASHION!
After lambasting the ill-effects of the contractual arrangements that he has built his reputation on, Mackney, with complete insouciance, advocates a national conditions of service agreement, which is the Silver Book in all but name. But hang on a minute! Paul Mackney has been reported as saying that the Silver Book was 'not a good thing'. When LEAF reported this to lecturers a year or so ago, we received an angry letter from NATFHE's solicitor, who unwittingly confirmed that Mackney had indeed made this comment. But, he added, he had meant that the Silver Book was not a good thing for part-timers. We replied that given the current status of part-time workers in the law, we could not see the difference! We never received further clarification from NATFHE. Perhaps they would like to provide clarification now. We think lecturers are due an explanation. While they are at it, they could perhaps indicate whether or not they think the remaining lecturers on the Silver Book should sign a new local contract or wait for NATFHE's new national agreement? You have only to consider questions like this to realise what a dog's breakfast NATFHE policy is!
NATFHE will never say that they want the Silver Book back, of course, and it is possible that the pay and conditions claim is a result of pressures from the activists at the recent sector conference, who have woken up (finally) to the reality that pay and conditions can never improve in a bargaining situation of 470 different units. Welcome to reality, colleagues.
LEAF has repeatedly warned for seven years that unless a national bargaining situation is achieved, and college employers are yoked to a binding collective agreement, no progress will be made. After seven years, NATFHE has had to agree with us. But don't expect anything from this latest policy. It could just as easily change again in a few months time. This ship has no rudder!
REALITY CHECK NEEDED, NOT A BEGGING BOWL
If you believe that any other organisation other than LEAF can deliver stability and improvements in your pay and conditions, then we respectfully suggest you think again, carefully. Unlike the other organisations vying for your support, we are not interested in making friends with government spokespeople or other 'Important People', or being suborned in support for 'new initiatives' for the sector. We want our national conditions of service back, and we will fight on until we achieve it. We ask for your support on that basis. LEAF is funded entirely from membership subscriptions and donations from supporters, and represents the independent interests of the lecturing profession.
WE WILL DEBATE THE QUESTIONS
Because we are confident of the correctness of our stance, we are prepared to debate the issues of Lecturers pay and conditions with representatives put forward by any of the other players in the sector. We doubt that any of them will take up the offer, though. No-one likes to see their arguments crushed. However, if you would like to speak to a LEAF officer or have questions answered about our policies and actions to transform Lecturers' pay and conditions, get in touch with us now.
TAKE CONTROL OF YOUR PROFESSIONAL LIFE---JOIN LEAF NOW
Update Thursday 22 February 2001
Ralton & Others -v- Havering College of Further and Higher Education
After four days of argument on matters of fact and law, the Employment Appeal Tribunal has determined that the decision in this case will be reserved. For those who may be unfamiliar with the terminology, this simply means that the decision will be given in writing. As a consequence of the complexity of the legal arguments that have been employed in these proceedings, and the fact that the decision is likely to run to many pages, Mr Justice Charles stated that we should expect a delay of about three months before the decision is given. He also indicated that the parties may be called back to the EAT to be given the decision both orally and in writing. The decision, when it arrives, could be subject to an interpretation of points of European Law by the European Court of Justice [ECJ]. Members are therefore advised that the Employment Appeal Tribunal's decision could include a decision to refer certain questions of law to the ECJ.
The reason that this may happen, is because the legal arguments applied by our counsel, Eleanor Sharpston QC, have been largely based on the Acquired Rights Directive as opposed to the TUPE regulations which form part of National Law. We have been able to rely on the words of the Directive because at the earlier Tribunal, counsel for the employers conceded that the College was an "emanation of the State".
Employees of an emanation of the State are regarded as "public sector workers". In those circumstances the Directives have 'direct' effect; in other words employees can rely on the Directive itself rather than the National Law 'interpretation' of the Directive, which may lack the true fidelity and purpose of its counterpart. In essence, where the National Law [TUPE] does not fully or properly reflect the wording of the Directive, employees of an emanation of the State are able to rely on the ;wording' of the Directive itself.
As a consequence of our ability to rely on the Directive, this has given rise to a number of points of law that are very likely to require clarification by the European Court of Justice in Luxembourg. Our counsel submitted in writing that the EAT must apply the test laid down by Sir Thomas Bingham MR in Regina -v- International Stock Exchange ex parte Else  Ltd,  QB 534. The test set by the Master of the Rolls is as follows:
"Where the Community Law issue is critical to the Court's final decision, the appropriate course is ordinarily to refer the issue to the Court of Justice unless the National Court can, with complete confidence, resolve the issue itself".
We are of the view that the EAT will have to refer a number of questions to the ECJ in order to make a final decision. It was clear from the arguments employed by our counsel that the translation of the EC points into National Law was providing the EAT with considerable difficulties. We are also of the view that if a referral is made, there is a strong possibility that the ECJ would support our position on the points of law involved. That fact has not been lost on the employers' side, who have consistently argued that a reference is unnecessary, and that a decision should be made on the principles of National Law.
Members who have been carefully following these proceedings will know that our Appeal was in relation to the following matters:
1. The Tribunal erred on the law both as to the Community Law questions and those of National Law;
2. The Tribunal misdirected itself on the facts, in that:
a] No reasonable Tribunal could have so found on the facts;
b] In certain respects the Tribunal has failed to make any or any sufficient relevant findings of fact at all;
and in any event
3. The Tribunal's decision is so unreasonable as to be perverse.
The question as to the causal link between the transfer of employer and the changes to Lecturers contracts had been described in these proceedings as the "Exocet point". In short, if that link could not be established in fact, there would been no case to answer, indeed we would be blasted out of the water.
With regard to the 'air brushing' from the earlier proceedings of important documentary evidence relating to the factual background, as indicated by reference to points 2[b]&[c] & 3 of LEAF's Grounds of Appeal, our counsel put forward oral and written submissions on these matters.
Counsel for LEAF, Eleanor Sharpston QC, provided the EAT with a Note of Documentary Evidence on Behalf of the Appellants. The Note commenced with the following statement.
"As submitted in argument, it is the Appellant's case on the findings of fact in the extended reasons of the Employment Tribunal that the Tribunal failed to have regard to all the relevant evidence before it, relating to the change from Silver Book contracts to new contracts by way of statute. Those facts, when viewed in their entirety, evidence the deliberate attempt by [in the first instance] the Member State and [in the second instance] the College, to avoid the mandatory rules of the ARD under Community Law. The Tribunal failed completely to have regard to the link between Government actions and College implementation, which formed a major part of the evidence below. It is the Appellant's case that the nature of the transfer was such that [directly contrary to the Tribunal's findings] it had to lead to the adverse change in the Appellant's contract terms. The Appellants' will expand upon this submission in reply to the so-called "Exocet point" advanced by the Respondents, but refer the EAT to in particular to the following documents [with no claim to completeness] which serve to 'trace through' the facts from Government policy to College implementation against the Appellants".
Our counsel then set down a range of documents that had been before the original tribunal which we say provide "unassailable evidence" of a clear link between the incorporation of the College and the subsequent changes to contracts of employment. The evidence commenced with a letter from Roger Ward dated 10th December 1991 [two years before incorporation] to College Principals, which in discussing what will happen when Colleges are incorporated, refers to "no collective bargaining and the abolition of the Silver Book". This evidence was followed by a host of other documents, which we say clearly evidenced the link between the incorporation of Colleges and the pressure/imposition of contractual change. The submission by our counsel ends with this final sentence.
"The EAT can [and in our respectful submission must] interfere with the Tribunal's findings in this regard, since there is a total absence of findings on this point, that the transfer was not the cause of the contract change simply cannot stand. This disposes of the Respondent's Exocet point".
Members, and other Lecturers throughout the Further Education sector who may visit our web-site, are reminded of the massive importance of the success of this case. Succeeding will have a dramatic effect on employment rights, the prospect of bringing actions for breach of contract/compensation and damages, pension rights by way of contractual terms set down in the Silver Book, and their future livelihoods in the sector. LEAF are already engaged in pursing the right to a pension, as accrued, if made redundant or dismissed on the grounds of efficiency, where Lecturers have reached the age of 50.
If you are not a member of LEAF, and believe that the organisation representing your employment interests has the inclination and ability to pursue these critical issues, then we respectfully suggest that you take a reality check. At this stage it is important to reiterate that 'passengers who want to ride the train but do not want to buy the ticket', will find themselves resorting to shank's pony when the time to reap the benefits from our action arrives.
LEAF has the knowledge, the skill and the tenacity to see this important matter through to its conclusion. Ask yourself whether any similar organisation in the Further Education sector has the track record of staying the course in a situation of extreme adversity? Has your outfit been able to get tough when the tough get going, or has it evaporated at the first sign of pressure?
Don't be left defenceless when YOUR employer decides your time has come to be turned out in the cold.
Join LEAF today or continue to suffer from your inaction in the future. LEAF can ONLY provide support for Lecturers who have joined in Full Membership with their colleagues in adversity.
We invite you to become part of this growing movement whose primary purpose is to properly protect the rights of its members.
Update Friday 16 February 2001
Counsel acting for for LEAF in Ralton & Others -v- Havering College of Further and Higher Education, will be reinforcing the factual point that it is abundantly clear that the changes to Lecturers' terms and conditions of service after colleges were incorporated in 1993, were causally linked to the transfer of employer. The Employment Appeal Tribunal are aware that the earlier Tribunal decision did not discount this point of fact; that Tribunal simply said that the transfer of employer was not the "sole" reason for the changes to Lecturers' contracts.
There are of course always a number of reasons associated with any business transfer and there will always be primary purposes and secondary purposes in relation to this kind of event. Judgements of the European Court of Justice, which have found in favour of the employees', have frequently reached their decision on the basis that there was a 'causal connection' or that the transfer was 'a' reason for the changes to their contracts. The transfer does not therefore have to be the 'sole' reason - but simply for 'a' reason connected with the transfer.
The proceedings continue on Monday 19th February 2001.
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