October, 2016:

Action on Pay – UCU and Joint Unions National Pay Claim 2016/17

Background – The FE England Joint Trade Unions submitted their 2016/17 claim to the Association of Colleges (AoC) on 26 April 2016. The heads of claim were:

• An increase of £1 extra per hour for all staff
• All Colleges to ensure fair pay for women by conducting Equal Pay Audits or reviewing any existing Audits; identifying any gender pay gap; and constructing an Action Plan with the Trade Unions locally to eliminate any such gaps.
• Hourly paid, temporary, fixed-term or casual staff working in a college for more than two years to be offered a permanent post on a pro-rata basis that is commensurate with the hours they actually work.
• The starting rates to be no lower than the Living Wage Foundation rates of £8.25 outside of London and £9.40 in London with annual up rating. Colleges to work to become Living Wage Foundation accredited.

The second meeting of the National Joint Forum the 2016/17 pay round, originally scheduled for 5 July but postponed, was held on 21 September. The AoC addressed all four elements of the trade unions’ claim in the following manner:

Living wage – “The pay arrangements in many colleges are already equivalent to or greater than the Living Wage Foundation rates. Where this is not the case, colleges should consider strategies to address this as part of an overall review of reward, employment offering and job design. The decision on whether or not to formalise accreditation is a matter for individual colleges based on their particular circumstances.”

Casual Employment – “It is recommended the colleges continue to regularly review their establishment flexibility ratios to ensure they continue to reflect and plan for the changing business and operating environment and keeping the requirements of the regulations in mind. Similarly, in line with the regulations and any existing agreements, colleges should identify any staff who have been employed on fixed term contracts of four years or more and take any appropriate action needed.It is suggested that a joint working group be formed to develop models of good practice.”

Gender pay Gap – “As responsible employers, it is recommended that colleges review their existing audits or make use of NJF’S agreed toolkit to identify and assure themselves that males and females undertaking exactly the same work are paid equally. Where gaps are identified or there is potential for a pay gap to develop, colleges should seek to identify and address the matter through an action plan and consult with staff and workforce representatives on the plan and its implementation.

It should be noted that for the majority of colleges this is a routine action for HR functions who will undertake such activities in the general course of their work.”

Pay – “In line with the headline pay recommendations in public services for 2016/17, AoC will recommend the following to its members:

1% applied to all points or £250 where this is more beneficial (typically salaries below £25,000). Where an award is made and affordable, colleges should implement with effect from either August 1, their usual ‘award’ date where this is not August 1 or at the nearest available date thereafter subject to local conditions.”

It can be seen that despite protracted negotiation period the AoC final offer falls far short of addressing the substantive losses in pay of the FE sector. Importantly AoC recommendations are not binding on any college. The National FE Committee is currently collating feedback from UCU branches (as of October 13) and will meet to discuss any further actions.

The Trade Union Act 2016

The Trade Union Bill has been said to contribute to the already most draconian anti-trade union legislation of any western country. Thought much diminished in its original scope it is now passed into legislation as the Trade Union Act. (May 2016)

Implementation timetable

Although the Act will not come into force immediately: some of its provisions require further legislation in the form of regulations which need to be made before they can be implemented. The remaining provisions require the Government to set a date for their implementation, which they have yet to do. Therefore, the implementation timetable is currently unclear. However, we expect phased implementation to commence this year with some changes, such as to check-off, to be delayed until 2017.

Key changes under the Act in overview

Balloting

• A strike ballot must currently have the support of a simple majority of those voting. The Act introduces a new minimum voter turnout (i.e. that at least 50% of those entitled to vote do so) and an additional minimum support threshold applying in some Important Public Services (IPS) (i.e. that at least 40% of those entitled to vote must vote ‘yes’).
• Important public services include parts of the fire, health, education, transport, border control and nuclear services and include some private sector workers. Further regulations will be made providing the details. NB whether education and what parts of it are seen to be IPS will be subject to further discussion.
• The 40% support is triggered where the majority of workers are normally engaged in the provision of IPS. It does not cover ancillary workers engaged in IPS activities, as initially proposed. A trade union will have a ‘reasonable belief’ defence if it mistakenly breaches the 40% requirement.
• The ballot voting paper must carry more information, including a summary of the matters in dispute and the periods within which the action is expected to take place.
• Notice of industrial action to the employer is doubling to fourteen days (unless the employer agrees to seven days’ notice).
• Currently, industrial action must take place within four to eight weeks of the ballot and action can be taken indefinitely, provided the dispute remains live. This is repealed and the Act provides that a ballot mandate expires after six months, or up to nine months if both sides agree.
• Against its wishes, the Act requires the Government to conduct an independent review of electronic balloting for strike ballots. However, there is no legal commitment to its introduction.

Picketing, facility time, check-off and the Certification Officer

• Parts of the Code of Practice on Picketing become legally enforceable, including the requirement to appoint a picket supervisor who is identifiable when present at the picketing location.
• Public sector employers and some in the private sector (i.e. those with functions of a public nature and mainly public funded) with at least one trade union official will be required to publish facility time information, such as the amount spent on paid time off for union duties and activities. This change will not be introduced until further regulations, including defining which employers are included, have been made. The Act provides also for the possibility of future regulations limiting the amount and cost of facility time, should a particular employer’s facility time be a cause for concern.
• While the check-off ban has gone, the changes still require affected employers to make arrangements to recover costs from their trade unions. Some charities, housing associations and similar employers, where they carry out public functions and receive public funding, will also be concerned to understand more clearly from the Government whether they fall under the facility time and check-off changes.
• The Act introduces new powers for the Certification Officer (CO) to investigate and take enforcement action, including the imposition of financial penalties, against trade unions for breaches of their statutory duties. There will be changes to the annual returns filed by unions with the CO, including a requirement to set out details of any industrial action taken.

Finally, it should be noted that the Government announced last year a repeal of the ban on employers from hiring agency staff to provide cover during strikes. This change is not part of the Act and there is no further news on timing.

Comment

It is anticipated that the new ballot thresholds will focus trade union minds, for example, resulting in more strategic balloting where unions lack confidence in voter turnout or the level of support (in important public services ballots).