SYNOPSIS
Denial of Pay Increases and Pension Entitlements
Background
1. The minutes of Committee [F] of the House of Lords [1991], make it completely clear that the United Kingdom Government intended that collective agreements would not transfer when colleges of Further Education were removed from local authority control. The report of the Amendment Debate for the session focusing on Clause 26 [the transfer clause], shows many clear references by Government spokespersons as to why the “contracts” of staff should transfer, but that collective agreements should not. Sections of the proceedings of Committee [F] have been made available to the Commission’s services.
2. At the time amendments to the Further & Higher Education Bill were being considered, the United Kingdom Government had formed the view that the Acquired Rights Directive did not apply to colleges of Further & Higher Education, as they were not in the nature of “a commercial venture”. Nevertheless, the facts show that the United Kingdom Government had the clear intention to remove collective bargaining rights from Further Education Lecturers, once colleges were removed from local authority control. That point was made obvious in Committee [F] and in a number of other pre-transfer and post-transfer documents in the public domain.
3. The main trade union, the National Association of Teachers in Further & Higher Education [NATFHE], sought a Judicial Review in order to clarify whether the impending transfer would be protected by the Acquired Rights Directive. In October 1992 the High Court made an Order confirming that the Acquired Rights Directive applied to the transfer of colleges. Subsequent to the Order being made, the Department of Education, by way of a circular, advised Principals and Chairs of Governing Bodies that the Acquired Rights Directive applied to the impending transfer of employer. The circular was sent to all colleges of Further & Higher Education in December 1992. The letter specifically mentioned the fact that collective agreements transferred along with individual contracts of employment.
4. As a consequence of the High Court Order, a range of employment-related procedures and mechanisms transferred to the new employers in addition to the individual contracts of employment as provided for under Clause 26 of the Further & Higher Education Act [1992]. One important arrangement that transferred to the new employer was the pre-transfer pay bargaining mechanism, the mechanism within which the Silver Book collective agreement had been annually negotiated for a considerable number of years.
5. Prior to the transfer, NATFHE–– signatory to the Silver Book–– was recognised for bargaining purposes by the local authority employers. Negotiations concerning pay and conditions took place within a body known as the Local Authority Conditions of Service Advisory Board [LACSAB]. Once a consensus had been reached following negotiations within LACSAB, the formal agreement of the new terms and conditions was ratified by the Council for Local Education Authorities [CLEA] and communicated to all local authorities in England & Wales.
6. The custom and practice of local and/or county authorities was to follow the decision of the CLEA. Further, many of the local and/or county authorities stated in writing that decisions of the CLEA relating to negotiations of the Silver Book collective agreement would be binding on them. Therefore by way of a mixture of law and fact, national agreement was reached on terms and conditions by way of the bargaining mechanism and its associated procedures.
7. Some months prior to incorporation, a new employer’s organisation was formed to manage employment negotiations in the new post-transfer sector. The organisation was know as the College Employers’ Forum [CEF] and was headed by the Forum’s Chief Executive, Roger Ward. The position of Chief Executive was a Public Appointment.
8. During the months preceding the transfer, when the CEF was being formally established, there was a growing realisation that there was a clear intention to introduce and impose new and worse contracts on Further Education staff. Close relations had been established between the Chief Executive of the CEF and the Parliamentary under Secretary of State for Further & Higher Education. Between the responsible government department and the employer organisation, significant pressure was applied to colleges to bring about contractual change.
9. The threat of included the withholding funds from colleges if they did not significantly worsen the terms and conditions of Lecturers in the sector. The Commission’s services will have access to a quantity of evidence to that effect. Indeed, the mechanism for withholding funds to increase the pressure on colleges to bring about change is written into the Further & Higher Education Act itself. Further evidence includes examples of letters sent by principals of colleges to their staff, which letters seriously misled them, by causing them to believe that they may lose their jobs because of the Governments threat to reduce funding [holdback] unless they signed to new and worse arrangements. This threat was made in total disregard of the fact that the Directive protected the contracts & collective agreements of pre-transfer staff. The Commission’s services have example copies of these letters. A college would in our view be defined as an “authority that is local” under the written complaint procedures, and therefore falls within the range of national organisation against which a formal complaint could be made.
10. Following the transfer on the 1st April 1993, the new employers’ organisation, the CEF, told NATFHE that, as there was no longer any local authority employer to sit on the pre-transfer bargaining machinery, the CEF intended to establish new a bargaining machinery known as the Lecturers National Negotiating Committee [LNNC]. The CEF also made it absolutely clear that this new pay bargaining body would only discuss the new contracts that they planned to introduce, and that no negotiation could take place from the basis of the pre-transfer Silver Book collective agreement. The new contracts specifically ended any prior collective agreements and prevented the establishment or /incorporation of any new collective agreements.
11. Following the transfer, the CEF told NATFHE that unless they signed a new Procedure & Recognition Agreement, the employers would DE-RECOGNISE the union for collective bargaining purposes. In the knowledge that the new employers had consistently refused to negotiate from the basis of the Silver Book collective agreement, and under the threat of de-recognition, NATFHE signed the new Procedure & Recognition Agreement in July 1993.
12. The effect of the employers threat to de-recognise and the union’s action to protect its recognised status, was to DISENFRANCHISE all those Lecturers whose contracts were governed by the Silver Book collective agreement, from the benefit of any collective negotiation of their terms and conditions,
13. The new so-called bargaining body also disallowed any prospect of reaching a national collective agreement, indeed, as recorded above, member colleges were advised not to enter into any collective agreement with their employees. The legal advice offered to member colleges of the CEF, was that the union, NATFHE, could simply be given notice that the Silver Book collective agreement was to come to an end. We have in our files clear and unequivocal statements to that effect, in complete disregard of the special position of collective agreements following a transfer.
14. As the Commission’s services will be aware, in, the Commission -v- the United Kingdom–– case 165/82 [1984] the Court recognised the de facto consequences of collective agreements in the United Kingdom, despite their non-enforceability. Following the Court’s reasoning in that case it may be argued that Article 3[2] ARD places a legal obligation on the transferee to observe the terms of a collective agreement, irrespective of the non-enforceability of the agreement under United Kingdom domestic law.
15. From the point the new Procedure & Recognition Agreement was signed, the CEF referred to the Silver Book collective agreement as obsolete. There are numerous statements to this effect in the mass of circulars produced by the CEF for the consumption of its employer members, and indeed, in government correspondence. As a consequence an assault on the pay and career prospects of any Lecturer who refused to sign to a new and worse contract employment commenced, and continues until this day.
16. The new PERSONAL contracts that were introduced to the sector post-transfer contained a clause ending all prior collective agreements and stated that no new collective agreements would affect the terms of the contract. The new PERSONAL contract also stated that any negotiations between the recognised trade unions and the employers organisation would only ever lead to a recommendation, and it would be for individual employers to choose to implement the recommendation or not. However if an employer chose to adopt a recommendation, it would be binding on the employee. A one-way street was therefore established for those on the new terms and conditions. Those staff who chose to remain on their Community Law protected Silver Book contracts were left to 'wither on the vine'. They were denied pay increases, career progression and collective representation.
17. At the relevant time, United Kingdom law allowed employers to de-recognise trade unions. As it stood, domestic law seriously disadvantaged members of trade unions because the employer could simply take a decision to de-recognise a union and remove collective representation. United Kingdom law was subsequently successfully challenged in Wilson & Palmer & Others [ECHR] July 2002 on the basis that the UK had infringed Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
18. The applicants in Wilson & Palmer alleged that the law of the United Kingdom, by allowing the employer to de-recognise trade unions, failed to ensure their rights to protect their interests through trade union membership and to freedom of expression, contrary to Articles 11 and 10 of the Convention. In addition, the individual applicants complained that United Kingdom law permitted discrimination by employers against trade union members, contrary to Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms in conjunction with Articles 10 and 11.
19. In the above case, the ECHR was of the view that the Applicants’ complaint did not involve direct intervention by the State. We assert that in the case of Further Education Lecturers, the State was directly and inextricably involved in a strategy designed to end collective agreements in the Further Education sector. Further that it had failed to amend domestic law allowing employers’ to remove collective representation by way of de-recognition, contrary to Article 11 of “the Convention”.
20. The Court reasoned that, it was open to the employers to seek to pre-empt any protest on the part of the unions or their members against the imposition of limits on voluntary collective bargaining by offering those employees who acquiesced in the termination of collective bargaining substantial pay rises, which were not provided to those who refused to sign contracts accepting the end of union representation. The Court concluded that the corollary of this was that United Kingdom law permitted employers to treat less favourably employees who were not prepared to renounce a freedom that was an essential feature of union membership. Such conduct constituted a disincentive or restraint on the use by employees of union membership to protect their interests.