The Newsletter 3

MARCH 1999


The Law catches up with College Employers-and not before time!
All indications are that College Employers across the country are in for a hiding following the tribunal case of CROFTS & OTHERS v. HAVERING COLLEGE. After unprofessionally cheating lecturers of their due earnings for years, while building up corporate profits from public funds, it is about to be legally demonstrated that this was undertaken by the unlawful variation of lecturers contracts.

Every lecturer in the Further Education sector will be delighted to learn that this very important test case will commence on the 26th of July, and continue for six days, at the Employment Tribunal, Woburn Place, London. The long awaited case, which has been 'stayed' pending three appeals in other cases since 1994, will test the lawfulness of the contracts that have been introduced into the sector following the incorporation of colleges.
Make no mistake about it, success in these proceedings will have dramatic and widespread ramifications.Those staff who were employed before 1993 on LEA (Silver Book) contracts, and were caused to move to a college contract, could find that they will have to be returned to their old terms and retain the pay increases they have received.

Our lawyers have recently confirmed that they are quietly confident that we can win this case.
THREE APPEALS HAVE PROVED OUR POINT

The Crofts v. Havering College case has been 'stayed' for five years for one reason only. Other landmark cases, notably Wilson v. St. Helen's Borough Council and Meade and Baxendale v. British Fuels Limited, which argued identical legal points, were being put through a process of judicial appeals. It was important to us that the points of law involved in these cases, upon which the Crofts case relied, were not interpreted differently.

In October 1998, the final appeal in the House of Lords was handed down.

Lord Slynn in particular stated that a transfer (change of employer) cannot be a reason for a valid variation of terms of a contract of employment. If it is, the variation to terms and conditions will be ineffective. Two weeks before the House of Lords made its decision in Wilson and Meade, the Court of Appeal heard the case of Credit Suisse First Boston (Europe) Limited v. Lister (16 October 1998&endash; Unreported).

This case concerned the validity of changes to contracts of employment for a reason related to transfer.

The Court of Appeal supported the High Court Judge in deciding that changes made to a contract of employment by reason of a transfer of an undertaking were void. The Court of Appeal said that this position was clearly supported by the European Court of Justice in the case of Daddys Dance Hall (1988 IRLR 315).


THE SIGNIFICANCE OF THESE DECISIONS


LEAF's initial (1994) view of the effect of European law on transfers of employer and the impact of unlawful contractual change, has now been reaffirmed by EAT and Court of Appeal decisions the House of Lords and the European Court of Justice.
This simply states that:
"...any variation to contracts of employment that is principally and causally related to the transfer of an employer is unlawful".
It does not matter whether you or your trade union agreed to the deterioration of your terms.

You can not lawfully agree to an unlawful contract. That is a fundamental point of contract law.

DO YOU NEED ANY FURTHER CONVINCING?

LEAF's ANALYSIS OF THE EFFECT OF THE LAW RELATING TO OUR CONTRACTUAL RIGHTS ON TRANSFER WAS SET OUT IN 1994. INDEED, WE PASSED OUR ADVICE TO NATFHE WHO CHOSE TO IGNORE IT.



UNRAVELLING THE GREAT CONTRACTS ROBBERY


So the effect of European law on transfers of employer and transfer connected changes to contracts has now been clarified. The Law Lords views are entirely coincident with the interpretation LEAF's lawyers placed on the legal principles involved at the outset.

LEAF's advice on the law relating to transfers was given to NATFHE in 1994. We gave this freely and without prejudice to NATFHE. They rejected the advice in a two-line letter from their solicitor Michael Scott.

It is worth taking note of that fact, especially after NATFHE circulated all of their branches with a lengthy document on why LEAF should not be supported in its legal challenge to the employers. Then ask yourself what have NATFHE achieved since incorporation, other than local agreements with the employers to worsen your conditions?


A LEGAL REVOLUTION


So we have come full circle. The law has been clearly demonstrated to be on our side on the transfer issue. We now have to demonstrate that process of incorporation and the change to new and worse contracts involved a monumental legal sleight of hand. In other words, it is only the facts of the process of incorporation rather than the law that we have to deal with in this case. The law has now been clarified.

Make no mistake about our ability to demonstrate these facts. LEAF has spent the past five years recording and filing the details of that event.

We've done our research well and intend to win.



WHAT MAKES US SO CONFIDENT OF THE EFFECT OF THIS CASE?


Top flight lawyers engaged by LEAF on this case, have stated in writing that, if we win the Crofts case, the impact will be nothing short of dramatic.

The reason is that, while Crofts is a case taken against a single college (Havering), the process of incorporation and the shifting of staff to new and worse contractual terms was simultaneously a national event. So if the facts of a legal sleight of hand in the course of the process of incorporation and changes to contracts can be demonstrated at Havering College, it follows that every college across the sector would have operated under the same conditions that enforced contractual change.

That is the view of the lawyers involved.
To put the matter even more simply, a contractual change that is causally and principally linked to a transfer is unlawful.



SELF TEST


Ask yourself a simple question.
What, in your view, was the principal reason for the changes to your terms and conditions of employment?
Could it possibly have been connected to the incorporation of your college?

LEAF have a mass, of evidence that clearly shows that incorporation was the hub of a complex plan to worsen the terms and conditions of staff in the further education sector, and that this plan was laid years ahead of the event. That is why we will win this case.

Our evidence is very detailed and shows no gaps in the chain of causation.

INCORPORATION AND CHANGES TO OUR CONTRACTS CAN BE FIRMLY LINKED BY OUR EVIDENCE. AS A RESULT CHANGES TO YOUR CONTRACTS WILL UNEQUIVOCALLY BE SHOWN TO BE UNLAWFUL.


HERE'S A LITTLE SOMETHING ELSE TO CONSIDER


In 1995, on the advice of Counsel, we submitted a formal Complaint to the European Commission about the process of incorporation and the ensuing contractual changes.

This was done under what is known as Article 169 of the Treaty of Rome. The Commission said the Complaint could not be examined while the proceedings in Crofts were pending in the national courts.

LEAF then commenced a massive political campaign in the European Parliament against the abuses lecturers were suffering in Further Education. As a consequence of that campaign, a number of MEPs tabled questions to the Commissioner responsible for Social Affairs and Industrial Relations, Padraig Flynn. This resulted in Commissioner Flynn agreeing to review our Complaint, when the decision in the Havering cases was known.

The hearing is now imminent and the Commission has been advised of that fact.



ARTICLE 169 COMPLAINT


Commissioner Flynn's statement on this matter is recorded in the Official Journal of the European Parliament and in letters to LEAF from the Commission.

In our Complaint, we asked the Commission to bring proceedings against the United Kingdom.

The Commission has the power to do so and at no cost to the complaining party.

And there you have it.

Crofts & Others v. Havering College is a highly significant test case, employing European law never before used in the sector, and is inextricably linked to a Complaint to the European Commission that has the potential to bring proceedings against the United Kingdom. Our legal action is aimed at both the employer and the Government.

OUR STRATEGY HAS THEREFORE INVOLVED A PINCER MOVEMENT--- WE PLANNED TO HIT THE ISSUE ON BOTH FLANKS!

SO WHILE NATFHE'S GENERAL SECRETARY HAS BEEN IGNORING THE PROBLEMS AND SERENADING THE PRESS CORPS WITH HIS FOLKSY GUITAR, LEAF HAVE BEEN LAYING OUT STRATEGIC PLANS DESIGNED TO RELEASE YOU FROM A FUTURE OF SEEMINGLY ENDLESS SLAVERY.

ISN'T IT TIME YOU SUPPORTED LEAF? JOIN TODAY AND HELP YOURSELF BREAK OUT OF THIS VICIOUS CYCLE OF LEARNED HELPLESSNESS.

NATFHE IN TERMINAL CRISIS


In 1993, NATFHE signed away your bargaining rights under the Silver Book.

It has never acknowledged, far less apologised to lecturers for, this catastrophic move. Instead it has sought a new, and worse, agreement to replace the Silver Book, which would undermine your rights to remain untouched, on its terms and conditions.

After failing to achieve a national agreement in 1993 and 1994, it followed the policy, advantageous to employers but not NATFHE's members, of striking local agreements, which introduced inferior conditions of service and left pay awards in the 'gift' of each corporation. Needless to say, many corporations have used this discretionary power to pay less than the 'recommended' pay increase to new contract staff, and in many cases, have generously awarded lecturers 0% at pay review time!

Although the right to bargain on the Silver Book has been surrendered, the terms and conditions themselves still exist in a significant number of colleges.

NATFHE finds the lecturers on the Silver Book an embarrassment.

Like Banquo's ghost, from Macbeth, they are a reminder to NATFHE of past misdeeds. In almost every case, "Silver Book" lecturers have received the following pay increases since 1993:
1994---0%, 1995---0%, 1996---0%, 1997---0%, 1998---0%.

This, year in, year out, has amounted to a total pay CUT of 15% for some staff doing the selfsame job under much worse conditions.

We are not offering prizes for correct answers on the offer in 1999.

What has NATFHE done to help this category of staff? It has tried to get them off the National Collective Agreement, and onto a local agreement, in the hope that their respective college corporations would grant them the miserable increases it has given to those on 'New Contracts'.

What a pathetic response.



NATFHE's NATIONAL FRAMEWORK AGREEMENT


Because it has given up on the Silver Book, NATFHE has tried to achieve a 'Framework Agreement', which puts all lecturers within a 'range' of hours and conditions. The important proviso, for the employers, was that they would be free to adopt or not, the elements of the Framework Agreement. Since the Framework was worse in many cases, than the already inferior local agreements, the employers were delighted. They could have imposed new and worse agreements on all lecturers.

Fortunately, a majority of NATFHE members voting in the ballot, before Christmas, threw out their leaderships proposals. They had more sense than the leadership had given them the credit for!!!


NATFHE PROPOSES A NEW 'FRAMEWORK' IN A DESPERATE ATTEMPT TO FRUSTRATE LEAF


In response to the rejection of the Framework Agreement, NATFHE's leadership is seeking a further mandate to create a 'Framework Agreement Mark 2'. Like its predecessor, the agreement is intended to allow any changes to conditions arrived at to be binding on lecturers, but optional for college corporations. In its document circulated to branches called "Principles for Negotiations", NATFHE says, "...this will greatly improve the ability of NATFHE to establish negotiated safeguards on working conditions in places where none exist".

After six years of utter misery, most lecturers will be clear about one or two things. Firstly, NATFHE has no ability whatsoever to safeguard lecturers conditions of service. Secondly, what passes for 'principles' seems to boil down to a strategy which simply allows NATFHE's leaders to sit round the table and drink coffee with the AOC. This will not do!

We repeat what we have already said regarding the so-called 'Framework Agreement'. It is little different from the CEF "New Model" contract introduced under Ward. We would have "Wardism without Ward", in every college.

This debacle has brought NATFHE's leadership to an internal crisis.

A minority group of its national negotiators have called instead for....national strike action.



DOES THIS MINORITY GROUP HAVE A WAY FORWARD?


Categorically not. In fact they are really symptomatic of the slow implosion of NATFHE. They have called for "effective national strike action", but have not said what this action is aimed at achieving, precisely who it would involve, or the small matter of how it would be organised and financed. The glaring fact that only a few thousand lecturers even bothered to return their ballot forms in the last vote, has hardly concerned them.

Any attempt to build a "fight back" as they have put it, must begin with a reaffirmation of the Silver Book as the existing binding national collective agreement. This benchmark must guide all negotiations and remain as the number one objective for all lecturing staff.

ONLY LEAF HOLDS TO THIS APPROACH POSITIVELY.

NATFHE as we predicted, is falling apart under the strain of its own irreconcilable strategies. You should not look for a lead from this organisation, because you will not find it.



LEAF HAS A CLEAR, PRINCIPLED AND WORKABLE ALTERNATIVE


Because LEAF's officers and National Council members are all working lecturers, we understand the ordeal that our profession is going through. We too have seen our living standards drop, our home lives constricted by work demands, and our professional status trampled in the mud. But a more important difference is this! We have been preparing a considered, intelligent and comprehensive response for three years.

This is about to come to fruition.

We have picked up support along the way from lecturers who share our views and analysis, and firmly believe that we can succeed with our strategy.

We hope that after reading this Newsletter that you will support that strategy too.
LEAF is not interested in sitting around a table with the employers, discussing ways in which more and more 'flexibility' can be squeezed out of you,

We have rejected the employers' overtures to us several times. We only want to talk about one matter, at this moment; the reestablishment of nationally binding pay and conditions, at the highest level.

The employers have withheld a great deal of our due earnings, and we want to get it back for us all.

They know our agenda and they are terrified of the prospect of dealing with LEAF.

Their worst nightmare would be LEAF gaining majority support among lecturers.

This explains their renewed interest in a framework agreement with NATFHE.

They know it and we know it!



NEWHAM COLLEGE---INDIRECT DISCRIMINATION


To highlight the point that the employers dread the thought of LEAF getting a firm foothold, it is worth reporting a recent success achieved by LEAF at Newham College.

In 1997, NATFHE 'negotiated' a local agreement with the College. This resulted in an immediate worsening of conditions of employment and caused uproar among a number of the staff affected.

Complaints were made to NATFHE about incorrect information that members reported had been given to them by the Regional Official and concerns were raised about the conduct of ballot. The effect of the agreement on parental obligations was significant, and in our view the local agreement raised the matter of indirect discrimination. We wrote to the principal, Martin Tolhurst, but he was of no mind to deal with LEAF. He had replied to us on an earlier occasion saying in effect that we were not recognised by the College and he would not have anything to do with us.



CASE SUBMITTED


A case was submitted to tribunal shortly after, claiming that the new local agreement and the terms and conditions that flowed from it, indirectly discriminated against the Applicants involved. LEAF was subsequently invited to attend a meeting at director level to seek to resolve the problem. Insufficient headway was made and the tribunal applications went ahead.

Late in January, this year, the College made further concessions to our members and subsequently, the College's lawyers, Eversheds, contacted our lawyers to seek a settlement.

We agreed to settle the case with the proviso that, if the College sought to change the arrangements in the future, i.e. worsen those now agreed with the College, the case would be resurrected.

So much for the Principal insisting that he would have nothing to do with LEAF.

We understand one golden rule in industrial relations, which the other unions, NATFHE, ATL, ACM, have ignored: when you negotiate you must do so from a position of strength.



WHAT MORE CAN WE TELL YOU ABOUT LEAF ITSELF?


LEAF is a union formed by lecturers, for lecturers and led by lecturers.

It is listed by the Certification Officer as a Union under the Trade Union and Labour Relations Act.

All of the Officers of LEAF are working lecturers, as is every member of LEAF's National Council.
LEAF has worked very hard to preserve and enhance its members rights and has done so in a variety of ways:: Political campaigns in the United Kingdom and in Europe concerning abuses to lecturers in Further Education.; Evidence to the Select Committee of the House of Commons (Education & Employment); Efforts to get key issues affecting lecturers raised in Parliament. John Cryer's two parliamentary adjournment debates on Further Education are examples of LEAF's influence in this respect.; LEAF's efforts to draw attention to the behaviour of Roger Ward of the CEF/AOC were significant in his removal. It is a little known fact that John Cryer MP (Hornchurch), whose Parliamentary debate was instrumental in bringing Ward before the Select Committee, shares his constituency with Havering College! LEAF had many meetings with John Cryer at the House of Commons on these matters.; LEAF's Memorandum on the crisis in Further Education published in the House of Commons Report of the Select Committee - Vol 2.; Questions tabled in the House of Commons and in the European Parliament concerning the use of agency employers in the sector.
: Consultations with the DTI on the use and abuse of agencies.
: Letters to the DTI concerning the White Paper 'Fairness at Work'.; Consultations with David Forrester, the Director of Further Education, (Baroness Blackstone's Chief Adviser). Pay and conditions matters.
: Meetings with Bryan Davies, now Lord Davies of the FEFC.
: Interventions by way of case work and attendance at grievance, disciplinary and dismissal hearings.; Tribunal cases involving, dismissal, redundancy, indirect discrimination, the transfer regulations and agencies.; We had one of our members reinstated under his previous terms and conditions when he refused to join an agency and was dismissed by Carshalton College. The College also paid him compensation. Around sixty other staff, who were not members of LEAF, had signed up with the agency concerned.; LEAF are currently fighting a case on behalf of our members who were employed in a prestigious London Art School. They were dismissed after many years of service with the School, in our view wrongfully and unfairly. A tribunal on this matter is set for March. The advice from our lawyers is that we have a very good case.; Day to day support for our members, access to legal advice, and much more.


: GIVE US THE TOOLS OF YOUR MORAL AND FINANCIAL SUPPORT AND WE WILL GET THE JOB DONE.; WHY NOT PICK UP A SPADE YOURSELF AND GIVE US YOUR PHYSICAL SUPPORT AS WELL?; WE COULD USE YOUR HELP TODAY!




LEAF TO SPEARHEAD NEW POLITICAL CAMPAIGN


Many of you will know of the Government's Employment Rights Bill, which is intended to become legislation later this year. LEAF will have drawn your attention to the questions raised in the Wilson and Palmer cases under the previous government and the important question as to whether an 'omission' and an 'action' can be distinguished.

For example, in the above cases which involved the withholding of pay from those who refused to transfer to a new 'personal' contract, was held by the House of Lords to be an 'omission' rather than an 'action'. As a consequence, the case of the parties involved failed.

They were claiming that the employer's denial of pay increases was "action short of dismissal"--- a point that the Court of Appeal had accepted. The Lords reversed the decision of the Court of Appeal, claiming that the denial of pay increases was simply an 'omission' and therefore could not constitute an action short of dismissal.

The Government intend to make deliberate 'omissions' unlawful in the Employment Rights Act. However, they have left a gaping loophole for the employers to climb through by refusing to amend Section 148(3) of the 1992 Act which was introduced by the previous Tory government as a response to the success of Wilson and Palmer in the Court of Appeal (subsequently overturned by the Lords).

Consequently, it will remain the case that if an employer can show that the reason for his action (or omission) was to change the system of industrial relations, tribunals will have to determine whether or not the action or omission was reasonable or otherwise.

It is easy to see what a mess of judgments will result from this very unsatisfactory situation.

LEAF will be taking this matter up with the minister responsible, Stephen Byers, at the earliest opportunity. We hope that you will do the same through your own MP.

If you need further advice or help, please contact us.



STOP PRESS


LEAF recently concluded a settlement involving substantial compensation for staff who were wrongfully dismissed from the City & Guilds Art School.
The current Principal, Michael Kenny R.A. (Treasurer of the Royal Academy) has sought to effect many changes to the structure of the School's activities with little regard for the law.



LEAF's NEW PREMISES


LEAF has recently acquired new office space in order to further develop support for members.
It is far removed from the scale of NATFHE's mammoth building in Britannia Street, and costs a minute fraction of one percent of the cost of NATFHE's. Nevertheless, it fulfils a useful function and is in keeping with LEAF's financial situation and philosophy. We believe that members subscriptions should be directed as effectively as possible to protecting and advancing member's interests.



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