The Newsletter 1

AUGUST 1998

NATFHE kiss and make up with the employers

NATFHE TO DITCH SILVER BOOK. Lecturers throughout the UK will be shocked by the news of the Framework Agreement NATFHE have reached with the employers (Times Educational Supplement 24th July 1998). The most seriously affected staff will be those who remain on the Silver Book conditions.

Remember NATFHE's strategy 'Hold the Line Don't Sign'. Well, you are now to be sacrificed. As a minority, your determination to stick by NATFHE's policy counts for nothing.

In any event, Paul Mackney is on record as saying that the Silver Book is no longer a good thing. His views on the Silver Book are set out in his correspondence with branch officers, and the employers have referred to his comments during a seminar at Warrington Collegiate Institute in March this year. That was a bad mistake on NATFHE's part.

There are in excess of 50 staff on Silver Book conditions at Warrington.

Those members and the few thousand others, who remain on the Silver Book, will no doubt be considering their position.

It is a matter of fact that LEAF is the only union in the further education sector that has actively supported, and continues to support, the case of Silver Book staff.

For updated details of our efforts, read on.

Silver Book staff to be railroaded on to new and worse contracts

NATFHE condones the position of those who are already
subject to new contracts.

But LEAF's 'test case' could undo five years of injustice.

See following pages for details.

---New NATFHE/AoC Framework Agreement:

37 hour week (normally)

22-27 hours class contact per week (can be exceeded)

880 hours class contact annually (can be exceeded)

50 days holiday (including Bank Holidays)

---Existing Silver Book:

30 hour week

21 hours (maximum) class contact per week

756 hours (maximum) class contact annually

70 days holiday (including Bank Holidays)

If NATFHE's Framework Agreement is accepted in a National ballot and adopted by your corporation, it will be binding on you.

See clause 22 of your new contract.

The plight of those already on new contracts

NATFHE's framework agreement will, almost certainly, cause a further deterioration to the conditions of an already overloaded category of staff.

In LEAF's view, NATFHE's agreement with the employers will simply hasten an end to your career as a professional lecturer.

If the agreement is ratified, your role will truly diminish to that of general factotum. Many staff already complain that they are being treated like factory operatives. That process is set to widen and deepen.

The effect of NATFHE's agreement with the employer's, if ratified by the members, would mean a steep slide into the abyss. NATFHE must know this to be the case. Every lecturer however close their nose may be to the 'grindstone', can see that, in the 'nasty new world of further education', there is a constant process of comparing unit costs between colleges. It's called benchmarking. The pressure will continue to be to reduce costs, and that means pushing you to work to the upper limits of the framework agreement.

It is only the detailed work that LEAF have undertaken on crucial legal issues, that stands between you and the sharp stick that the recognised unions want to hand to the employers.

ALL THE KINGS HORSES

NATFHE have been sitting on the fence from the beginning of the contract dispute and have now quietly slid down the employer's side.

The new General Secretary, Paul Mackney, says his objective is to bring sanity back to the sector. NATFHE's agreement will cause bouts of manic laughter to ring around staff rooms in colleges across the UK, working on the assumption, of course, that your staff room has not been taken over to serve the needs of college administration. Insanity is being endorsed by Mackney's agreement with the employers, by condoning injustices towards lecturers.

NATFHE lost its rudder a long time ago and has now firmly grounded on the employers' private beach. The Director of Professional Services for the AoC has already expressed confidence in Paul Mackney's leadership. That is a very worrying sign in itself!

In a recent bulletin, the Association of Colleges says ATL and ACM have, "Historically been our greatest allies".

What an accolade for a 'union' to receive from an employer!

No doubt NATFHE will be added to that illustrious roll of honour.

But don't despair, with your help, LEAF will undo the misdeeds of the last five years. LEAF has a firm plan which will create havoc for the employer's aims to destroy your career. The employers' know this, as does NATFHE, but we need your help and financial contributions to put this plan into action.

YOU CAN DO THIS BY SUPPORTING LEAF NOW, AS A MEMBER, (you can belong to more than one trade union), OR A VALUED CONTRIBUTOR, BY DONATING DIRECTLY TO THE HAVERING COLLEGE LEGAL FUND.

This is a chance that must not be lost, and will be something to look back at with pride, as the right action taken in solidarity, at the right time&endash; an investment in all our futures.

Do contribute to your own best interests, and also please encourage colleagues to participate. There can be no illusions or doubt left about the employers motivations, and future intentions towards you.

THE BACKDROP TO THE AGREEMENT

The Association of Colleges, as you might imagine, is delighted with NATFHE's General Secretary and relish the prospect of the agreement being ratified by NATFHE's membership. If they could not achieve a bargaining framework for the sector the Government would most likely impose a Pay Review Body. In the words of the Association of Colleges,

"......this would not be in the best interests of the sector because it would decrease the power of the employers and would probably make pay and conditions awards mandatory". AoC Bulletin 41/97.

It is important that every lecturer understands that, at this time, there is no such thing as a binding national agreement. But, if your college adopts the AoC's recommendations, it will alter your terms and conditions. The local decision to which NATFHE refers in the August decision of 'The Lecturer', is to say the least ambiguous.

AGREEMENT OR RECOMMENDATION?

The Association of Colleges only make a recommendation to their members, which colleges are free to chose to adopt or not as the case may be. It would seem that individual colleges will adopt the national framework agreement, after all they would be stupid not to.

It gives them the opportunity to bring in greater flexibility than they have at present. It feeds the 'fat cat' ambitions of this greedy, newly privatised public sector, helping them to finance the current enormous and unjustified pay increases for Principals and their Management colleagues.

NATFHE's rubber stamp on the framework will be their defence. Remember before you endorse the agreement, it will be the employer who will do the flexing, and it will be you who will be flexed, possibly to breaking point.

SOME BACKGROUND FACTS

Collectively agreed terms, prior to incorporation in 1993, would have been negotiated through the Silver Book negotiation machinery.

However, as we have reported on numerous occasions, NATFHE ended the Silver Book machinery in July 1993 when they signed a Procedure and Recognition Agreement with the then CEF (AoC).

In short, the Silver Book carriage was, as a result of NATFHE's agreement, uncoupled from the rest of the train. That is why Silver Book staff were left on the track, while the train, carrying only those on new contracts, moved off down the line. The route the track was to take had been determined by the Tory government, well ahead of the transfer of colleges from LEA control to that of the independent corporation.

As we are all now painfully aware, the track was designed to lead through some very barren terrain. All that was required was to get your foot on the step. NATFHE kindly gave you a leg up.

A DISMAL JOURNEY

The train has yet to reach its destination, and while life for those aboard has been, to say the least a little uncomfortable, it is destined to become much worse.

Those who were left on the track, who had stuck to their Silver Book contracts, had to put their walking boots on but at least had the benefit of being free to choose a somewhat different route. Their boots may have begun to show signs of wear, but at least they retained a measure of freedom.

When asked to cover absence or take on extra classes, they could say 'No, Thank You'. They also have sickness benefits that are contractually binding, not simply a policy document on sickness that can be varied without your consent.

There were many other benefits to Silver Book even though economic duress has taken its toll.

You are now being summoned by NATFHE to join 'The Train'. The question is, do you want to go on that journey?

NEW RIGHTS IN LAW WILL BE LOST BY
NATFHE'S AGREEMENT WITH THE EMPLOYERS

If you are on a Silver Book contract, you will be painfully aware that you have been denied pay increases over a period of years, the object of which has been to coerce you to transfer from collectively agreed contracts of employment to 'personal' contracts which considerably worsen your conditions.

This employer tactic was held to be lawful by the House of Lords in the cases of Wilson and Palmer (1993), in that, as an omission, it did not constitute action short of dismissal on grounds related to trade union membership or activities, which is prohibited by Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992.

The Government, in their White Paper, 'FAIRNESS AT WORK', intends to legislate to close the loophole created by the House of Lords ruling, by rendering discrimination by omission unlawful. If the penny hasn't yet dropped, this will almost certainly mean that the employers will no longer be able to deny a pay rise to those who remain on Silver Book contracts, because it discriminates against union members on collectively agreed terms.

So if you are on a Silver Book contract NATFHE's framework agreement will nullify the effect of the Government's changes to the legislation and you will be on worse conditions. In Tory parlance, NATFHE propose to deal you a 'double whammy'.

The NATFHE/AoC agreement will worsen your conditions just at the point, when in the future, the employer would no longer be able to deny you a pay increase!!!

WHEN IS AN OMISSION NOT AN OMISSION?

The answer, of course, is when it constitutes an action.

That question is currently being put to the test in a tribunal. The denial of pay increases, in our view, cannot constitute an omission, when it is a policy of the AoC which the majority of its members are following.

A policy sets out a course, which if followed constitutes an action. As we have already said, action short of dismissal on the grounds of trade union membership or activities is prohibited by Section 146.

Further, there is an implied term in every lecturer's contract with entitles them to periodic and regular bona fide pay reviews. Colleges are responsibile for pay and conditions of service. Simply following the ploicy of the CEF/AoC cannot in our view, constitute a bona fide pay review.

If you join LEAF we will ensure that you are kept updated on this important issue, and many others.

IS NATFHE'S FRAMEWORK AGREEMENT AN OFFER YOU CAN'T REFUSE?

So far as Silver Book staff are concerned, your letters of appointment would almost certainly include a sentence to the effect that you were to be; 'employed upon the terms and conditions of service agreed, from time to time, by the LEA and the trade unions recognised for collective bargaining purposes'.

As a consequence, any agreement made by NATFHE and the Employers will take effect as individual contractual terms and conditions of employment.

Your contract therefore will be varied by deleting all the Silver Book terms.

WILL EVERYONE BE AFFECTED?

THAT WILL BE THE CASE FOR ALL MEMBERS OF STAFF EMPLOYED IN GRADES WHICH ARE WITHIN THE SCOPE OF THE COLLECTIVE AGREEMENT.

It is important to understand that you need not be a member of NATFHE to be affected by their agreement and YOUR INDIVIDUAL CONSENT IS NOT REQUIRED.

In short, NATFHE's agreement with the employers is sufficient to alter your terms and conditions.

If the agreement is ratified, you may be asked to sign a new contract but this will in essence be simply a matter of adding the belt to the braces that NATFHE had helped pull over your shoulders. Those braces, in our view, would be better described as a HARNESS for that more adequately defines the effect of the framework agreement NATFHE have agreed with the employers.

CAN NATFHE LAWFULLY AGREE TO WORSEN YOUR CONDITIONS?

As we already have explained above, NATFHE's agreement with the employers will affect everyone, regardless of whether you are a member or not. In ordinary circumstances, NATFHE are able to agree terms at the collective level that are worse than the terms and conditions of employment prior to the new collective agreement.

However, this result may not follow, if the reason for the change flows from the transfer of employer. That is the effect of the Court of Appeals decision in the joined cases of Wilson v. St. Helen's Borough Council and Meade and Baxendale v. British Fuels Ltd.

It is on the points of European law raised in these cases that the Havering College proceedings are based.

If we win the Havering case, it automatically follows that NATFHE agreements have no effect in so far as they worsen the terms and conditions of employment of any of the staff either at the collective or the individual level. That will be the case across the country.

That is not, however, a good reason to go ahead and agree to NATFHE's deal with the employers. To do so could frustrate our legal position in the Havering cases. Both NATFHE and the employers will be aware of that.

WHAT ARE THE PROSPECTS OF WINNING THE HAVERING CASES?

To succeed with a legal argument based upon the Wilson and Meade cases, LEAF have to show that first, there was a relevant transfer for the purposes of the Transfer Regulations and for the purposes of the Acquired Rights Directive.

Our lawyers say there was undoubtedly a relevant transfer.

Having satisfied that condition, we will then have to show that the transfer of employer is the reason for making the change. In other words, we have to show that the incorporation of colleges, following the Further and Higher Education Act 1992, was the reason for imposing the new contracts.

THE STRENGTH OF OUR EVIDENCE

LEAF have amassed evidence over a period of years, which in our view, clearly indicates that college incorporation (the transfer of employer) was the reason for making the change to new and worse contracts.

What is more, we have clear and irrefutable evidence that the intention to worsen the terms and conditions of lecturers was part of an overall strategy that had been established at least two years prior to colleges being incorporated.

This information was conveyed to the European Commission by LEAF in 1995, in the form of a Complaint under Article 169 of the Treaty of Rome.

In essence, we told the Commission there had been a breach of the Spirit and Purpose of the Acquired Rights Directive and asked the Commission to bring proceedings against the United Kingdom.

The Commission has agreed, by letter, to examine our Complaint in detail, once the outcome of the Havering case is known.

That is why it is absolutely crucial that the Havering cases are heard and that we are able to employ the very best legal representation.

WHY LEAF IS OPPOSED BY NATFHE AND THE EMPLOYERS

Havering is a test case of mammoth proportions in terms of its likely impact on the sector. The employers know this, as does NATFHE. The NATFHE leadership will find themselves in dire straits if we win this case.

Members of NATFHE will be asking some very awkward questions about NATFHE's strategy.

The cost to the employers will also be dramatic.

We understand they have already estimated that if we win this case, it could cost the government 100 million pounds. We consider that figure to be an underestimate. The impact of LEAF's success would send shudders through the sector and will bring into question the ability of the Association of Colleges to represent the interests of their member colleges.

That is why, in our view, NATFHE and the AoC have combined to try to frustrate our legal approach.

Seems far-fetched? Then ask us for the evidence. We would be very foolish to make such an assertion if we did not have carefully checked evidence to that effect.

Remember, both NATFHE and the AoC have EVERYTHING TO LOSE!

You have nothing to lose by now SUPPORTING LEAF, and everything to win for the future!

LEGAL ADVICE RECEIVED ON THE HAVERING CASES

The ramifications of LEAF's case succeeding together with a reference to our Complaint to the European Commission, is set down in a letter on the subject, prepared by a major firm of lawyers specialising in employment law.

The letter was received after the Court of Appeal decision in the Wilson and Meade cases referred to earlier.

To refresh your memory, the points of law upheld by the Court of Appeal in these cases, are the same points of law upon which the Havering cases rely. The decision was appealed to the House of Lords and was heard in June this year.

We await that judgment, but informed opinion suggests that the House of Lords is unlikely to vary the decision in a way that would affect our cases. For your interest, a portion of the advice we received is reproduced verbatim below.

While the law is a complex beast, the advice received is spelt out in a fashion that is clear enough for lawyer and non-lawyer alike to readily understand.

VERBATIM ACCOUNT

"I am very grateful to you for providing me with a copy of the Wilson and Meade Judgments.

As I said yesterday, the outcome is very helpful to us......"

"......The Employment Appeal Tribunal, in both cases, held that if there was no dismissal, the effect of the Regulations is that any attempt to change terms and conditions is of no effect, even if the change is agreed by the transferring staff, provided the reason for the change was the fact that there has been a transfer.

The Court of Appeal did not have to decide the point expressly because it was accepted on both sides that the EAT was correct. This is the critical point so far in the Havering cases, so far as permanent members of staff are concerned.
If we can show that the process of incorporation and the process of cajoling, or forcing staff to accept new contracts is one and the same, then the attempt to change terms and conditions of employment is caused by the transfer and is ineffective......"

"......We do not yet know if the Wilson and Meade cases will be appealed to the House of Lords (or to Europe). I believe, however, that we should apply to have the stays on the Havering cases lifted and proceed on the basis of the law as it now stands. Our application for to lift the stays will be assisted by your correspondence with Commissioner Flynn, in which he clearly indicates the Commission's decision whether or not to investigate the Article 169 complaint, will depend upon the outcome of these Tribunal cases. In short, the Tribunal should not keep Commissioner Flynn waiting.

The consequences for the further education sector will be dramatic, if we win. It will mean that every lecturer who signed a new personal contract will be entitled to the best of the new contract, and of the old Silver Book terms. They will, therefore, have the increased rates of pay and the old, more favourable hours of work.

That will have ramifications for other areas in the public sector where a similar process of transfer from collectively negotiated terms to new individual contracts has taken place.
I am aware of a similar process in the National Health Service; I believe it has also happened in Higher Education and it may have happened elsewhere. Each of these cases will turn upon the facts of the process of incorporation and the change to personal contracts but the legal principles applied will be the same......"

WHY HAVEN'T WE ALREADY ACTED UPON THIS ADVICE?

You will see from the contents of the letter that we are advised to lift the stays on the Havering proceedings, and to proceed on the basis of the law as it now stands.

No doubt you will want to know why the cases were stayed in the first place and why we have not acted on the advice to lift the stays. The answers to these questions are as follows:

1. The Havering cases were submitted to tribunal in 1994, along with other cases involving some thirty other colleges. The Havering proceedings were 'stayed', while those other cases, involving related but essentially different matters, were heard on a consolidated basis.

2. The Wilson and Meade cases then appeared in the case law, based upon an identical set of legal arguments to those we had submitted to the Tribunal as the basis of our claim in the Havering cases that the new contracts were unlawful. Our arguments involved the application of European law.

As a point of interest, our legal advice had been given to NATFHE, but was turned down in a two-line letter from NATFHE's solicitor.

As a matter of fact, our legal arguments preceded those used in the now celebrated cases of Wilson and Meade. Those arguments proved to be dynamite, and have turned employment law in the UK, on its head. Hence, now, all the employers appeals to try to reverse the points of law involved.

3. We lifted the stays on the Havering cases in late 1995 but by then the Wilson and Meade cases had gone to the Court of Appeal. As a consequence, once again, we stayed the Havering proceedings pending the outcome of the Court of Appeal decision. We did so on the advice of our lawyers.

4. In July 1997 the decision of the Court of Appeal was announced and the section of the letter from our lawyers reproduced above relates to that point in the process. The General Secretary of LEAF was present in the Court of Appeal when the decision in Wilson and Meade was handed down, and was able to provide our lawyers with a copy of the judgment immediately.

5. The Judgment of the Court of Appeal was subsequently appealed to the House of Lords. We do not as yet know their decision but legal opinion suggests that the House of Lords is unlikely to be able to vary the points of law upon which our case relies. That is because those points are enshrined in European Directives and the case law of the European Court of Justice. For non-lawyers, the European Court of Justice has supremacy over all national courts, and the House of Lords will be obliged to defer to the ECJ.

6. The most important reason why we have not lifted the stays is that at present we lack sufficient finance to run the Havering case effectively. With so much at stake, the employers will spend whatever it takes to try to defeat us in court and that means employing the very best legal counsel to try to argue their way around both facts and law.

We therefore need a dramatic influx of funds to run both our, and therefore, your case, successfully.

YOU CAN HELP US BY JOINING LEAF AND/OR SUPPORTING THE HAVERING COLLEGE LEGAL FUND NOW.

LEAF HAS GONE AS FAR AS IS HUMANLY POSSIBLE TO LEAD THE WAY WITHIN ITS MINUSCULE RESOURCES.

THIS NOW SEEMS TO BE THE VERY LAST CHANCE WE HAVE TO DEFEND OUR FUTURE.

YOUR personal initiative and financial support NOW, could transform both YOUR own future prospects, and those of everyone else teaching or learning in Further Education.

EMPLOYERS "......VERY WORRIED" --FURTHER EVIDENCE

In March of this year, the Director of Professional Services for the Association of Colleges, Marcia Roberts, attended a meeting of senior staff at Warrington Collegiate Institute.

She addressed invited staff on matters relating to the Employment Policies of the AoC. Those policies are set out in AoC Bulletin 41/97, which has been directed to Chairs of Governors and Principals of member colleges.

THE WARRINGTON DOCUMENT

LEAF received information about the Association of Colleges seminar, which took place in March 1998, in the form of a signed statement prepared by a number of staff who were in attendance. According to the summary we were given, Marcia Robert's made a number of interesting comments. Key among her reported comments are the following:-

"......The implications of LEAF's pending legal action would have serious ramifications for the whole sector if the union won the case for Silver Book staff".

"......The AoC and NATFHE had combined their resources in a joint action against LEAF."

SO THERE YOU HAVE IT!

You may find this information difficult to believe. But do you really think we would make the statements we have, in the absence of any evidence. Ask NATFHE their views. We doubt they will give you a clear answer or one at all, but, If you get a response we would be interested to see it!

We have already indicated that we have heard, from sources close to the AoC, that estimates of the cost of our case succeeding have been calculated. We understand that a figure of £100 million has been mentioned. As we have said, and reiterate here, in our view this is likely to be a conservative estimate.

If we win this case the European Commission may be forced to bring proceedings against the UK, under Article 169 of the Treaty of Rome.

We made that Complaint on behalf of lecturers some three years ago.

What steps did NATFHE take?

COMPENSATION CLAIMS

Should we win, and it is only with your help that we stand any chance of doing so, we shall be seeking compensation for staff who would have been working for a considerable period of time to a much worsened contract, in return for which fair financial recompense was not given.

You only have to consider the loss of holiday entitlement, let alone additional hours worked for a measly increase in pay, to see how a substantial compensation claim could arise if we win.

CAN LEAF WIN?

It is unlikely we would be advised by a very reputable firm of lawyers to proceed with these cases if they didn't think we had a 'hope in hell' of succeeding.

They have seen the mass of evidence we have accrued, which supports our contention that the contracts on which you are now employed are in effect unlawful.

While neither they nor we can guarantee success, we have a very good chance of winning this case, the effects of which will be nothing short of dynamite.

You have a very clear option before you. We are presenting you with a very good chance of redressing the injustices that have been forced upon Silver Book and new contract holders alike.

On a professional level you must also see that the pressures that have been brought on you prevent you giving the service you would like to give to our young people.

You deserve better and so do they.

Supporting our initiative now, taken on your behalf, is probably the last realistic chance of arresting a further decline in your career and the future state of Further Education.

WE NEED YOUR SUPPORT

We would like you to join with us and help strengthen our ability to act on behalf of the profession. If you want to belong to a Union that will consistently fight for the interests of the professional lecturer and improvements in his or her lot, then you should join LEAF.

If you simply want to help us win the test case referred to above, then you should make a donation now of whatever you can afford, to the Havering College Legal Support Fund.

We have set out our stall and NATFHE have set out theirs.

What is the more attractive of the alternatives?

---The prospect of an unremitting life of toil at the behest of your employer and a continuing slide into oblivion.

---The prospect of a legal success that will improve your life significantly and cause the employers and the Government to listen to a union that represents the interests of lecturers.

If you wish to know where LEAF stands on the major issues affecting the further education sector, see LEAF's 'MEMORANDUM TO THE EMPLOYMENT AND EDUCATION SUBCOMMITTEE' House of Commons Report (Vol.II) pp[319-329], or ask us to send you a copy.

STILL NOT SURE?

Here are a few further things you should consider.

The Association of Colleges wishes to see the terms and conditions of lecturers harmonised with those of support staff. You will notice which way round that is phrased. Let's say it again: "harmonised with support staff".

In their bulletin the AoC say "......Traditionally support staff have been undervalued and this manifests itself in their pay and conditions".

LEAF have no axe to grind with our support staff colleagues and we would be the first to welcome any improvements in their terms and conditions, but it's worth asking yourself the following questions.

Will the funds to improve the terms and conditions of undervalued support staff result in less funds being available to improve lecturers terms and conditions, indeed will lecturers terms and conditions be worsened even further to pay for improvements for support staff?

With the vastly expanded numbers of support staff in colleges since incorporation, the lecturer is falling into a minority position. That could have an important impact upon union recognition in many colleges.
The main union that represents support staff is UNISON. What plans do you think are afoot? NATFHE have already entered an arrangement to transfer all of their Higher Education members to the AUT.

The Association of Colleges have made it very clear in their bulletin that they wish to see ONE UNION FOR FURTHER EDUCATION AND SINGLE TABLE BARGAINING.

The AoC say, "......As an accompanying tool for harmonisation it would be helpful if there were one union for all employees of further education".

We would be very surprised if UNISON were not encouraged by the AoC's policy in this area. Neither would we be surprised if the other unions were concerned at the possibility of UNISON becoming the sole representative of staff.

Lecturers need an independent voice.

A role that LEAF can ably fulfil, on behalf of the professional lecturer.

© LEAF 1998

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