bargaining brief is a publication
from the Policy & Information Team. It aims to provide a concise
and topical news service for activists and staff engaged in representing
and bargaining on behalf of UNISON members in Scotland. Recognising
that not all activists have the access or time to read detailed
information we hope this summary format will be helpful. Further
information on any of the news items below is available from the
P&I Team and we welcome feedback on any aspect of this service.
- Compensatory award must be based on at
least the National Minimum Wage
- New TUPE decision is supportive of Suzen
- Paper boy cannot claim holiday pay
- Lawrence Inquiry's "Institutional Racism" is
not relevant in Race Relations Act
- EAT Decision confirms lack of protection for agency workers
- UK in further breach of the Working Time
- Minimum Wage Increase
- New rules from Europe on Harassment
- Changes to Indirect Discrimination definition
- Fat Cats Continue to get the Cream
- Employee Job Satisfaction Plummets
AND FINALLY . . .
Match time off...?
Compensatory award must be
based on at least the National Minimum Wage
An EAT (in Paggetti v Cobb)
has stated that an employee's compensatory award should never be
based on less than the minimum wage, because to do so would be to
disregard the National Minimum Wage Act 1998 and allow the employer
to benefit from breaching the Act. The EAT overturned the Tribunal's
original decision and calculated the compensatory award based on
an hourly rate of £3.60 (NMW at time) not the employee's actual
wage which was £1.88 per hour.
New TUPE decision is supportive
The Court of Appeal in RCO Support
Services Ltd v UNISON has upheld ET and EAT decisions that a transfer
had taken place when the cleaning and catering services were transferred
from Walton Hospital to Fazakerley hospital. The Court of Appeal
ruled that an economic entity under TUPE was identifiable.
Paper boy cannot claim holiday
In a reserved judgement an ET has
told 14 year old Edward Des Clayes that he cannot claim holiday
pay as the European Working Time regulations only apply to workers
over 15. The tribunal has ruled that the most he can do is ask his
employers Herts & Essex Newspapers for a "period of time
without pay". This initial judgement contradicts the spirit
of the Working Time Directive, that clearly states all workers are
entitled to 4 weeks paid holidays (or pro rata equivalent) and we
hope that Edward will successfully appeal this bad decision!
Lawrence Inquiry's "Institutional
Racism" is not relevant in Race Relations Act
An EAT has stated that the definition
of "institutional racism" contained in the Stephen Lawrence
Report is not relevant where considering whether a person has been
discriminated against contrary to the Sex Discrimination and Race
Relations Acts. The EAT in Commissioner of Police of Metropolis
v Hendricks rejected H's argument that the Metropolitan Police
was institutionally sexist and racist and that this amounted to
a "policy" of sexism and racism. The EAT decided that
there must be a link between numerous discriminatory acts complained
of in order for there to be an "act extending over a period"
for the purposes of calculating time limits to bring race and sex
discrimination claims. The EAT concluded that as there was no policy
of discrimination H's claims had been brought out of time.
EAT Decision confirms lack
of protection for agency workers
In Esso Petroleum v Jarvis
an EAT has overturned an ET decision that workers engaged through
an employment agency by Esso were employees. The EAT ruled that
although the workers were paid rates set by Esso, worked alongside
Esso employees and were under Esso's day to day control, because
there was no contract between Esso
the workers they were not capable
of being "employees". This case highlights the lack of
employment protection given to agency workers – which should be
remedied to some extent if and when the Agency Workers Directive
UK in further breach of the
Working Time Directive
The European Commission has upheld
complaints over the UK Government's unlawful and inadequate implementation
of the working time directive and have issued Infringement Proceedings
against the British Government giving them 2 months to comply. Three
complaints, submitted by Amicus-MSF have been upheld:
- Under British implementation the employer does
not enforce workers rights to breaks. It should be the employer's
responsibility to see that breaks are taken.
- In the UK workers can volunteer to work additional
hours above normal working time which is unmeasured by the employer
without record being kept. This undermines the intent of the directive.
- Overtime hours on night shifts are excluded in
calculating normal working hours.
Minimum Wage Increase
The Government has confirmed that
from 1 October 2002 the minimum wage will increase from £4.10 an
hour to £4.20 (workers aged 22 and over), and from £3.20
to £3.50 an hour (workers aged between 18-22).
New rules from Europe on Harassment
The European Equal Treatment Directive
is likely to be adopted by the EU. The proposed Directive provides
a pan-European definition of unlawful sexual harassment in employment,
and an indication of what employers are expected to do in order
to prevent harassment occurring in the first place. The European
Commission proposed the changes in the light of evidence that between
40-50% of women and 10% of men have experienced sexual harassment
at least once in their working lives. Harassment is to be defined
as "unwanted conduct of a sexual nature with the purpose
or effect of violating the dignity of a person, particularly when
creating an intimidating, hostile, degrading, humiliating or offensive
environment". This is similar to the definition in the
EC's Code of Practice on measure to combat sexual harassment. It
appears that the Directive will state that the judicial right to
protection applies even after employment has ended. It will also
introduce obligations on employers to take "preventative measures"
against all forms of discrimination, especially sexual harassment,
as well as introduce enterprise level "equality plans"
which are to be made available to workers and their representatives.
Changes to Indirect Discrimination
The Sex Discrimination (Indirect
Discrimination and Burden of Proof) Regulations 2001 altered the
definition of indirect discrimination in employment cases. From
12 October 2001 the words "requirement or condition" were
removed and replaced by the words "provision, criterion or
practice". This means the wording is the same as in the EC
Burden of Proof Directive.
Fat Cats Continue
to get the Cream
The huge pay gap between
directors and their employees is continuing to rise. A TUC report
Executive excess – time to act reveals that between 1994
and 2001 basic pay rises for directors outstripped those for their
average employees by three to one.
Statistics 2002 revealed
that 43% of women in employment worked part time in 2001 compared
to just 8% of men. 11% of working age people in Scotland were claiming
a sick or disabled benefit in August 2001.
Falling workplace satisfaction of
employees is to blame for the UK's poor productivity gap claims
the Work Foundation, formerly the Industrial
Society. In 1992 22% of employees stated that they were satisfied
with job prospects, but by 2000 this figure fell to 15%.
Similarly those expressing satisfaction
on pay fell from 25% to 13% over the same period, hours 44% to 24%
and with the work itself 54% to 41%. As job satisfaction has roughly
halved, productivity per head has remained stagnant, whilst employees
in the UK's main competitor nations are around 30% more productive.
The Work Foundation's report suggests that a shift in workplace
culture of rewarding creative potential, delivering service-centred
leadership and creating a coaching culture can deliver improved
HEALTH & SAFETY
Those of us thinking of heeding
Andrew Wilson MSP's exhortation to cheer on England in the World
Cup (or lending moral support to whoever their opponents may be
each match) will be at the vanguard of the flexible working revolution.
Most World Cup matches will be shown live either first thing in
the morning or at lunchtime, leading to a surge in demand, we feel,
for flexi-time arrangements. Some employers are anticipating mass
absenteeism, particularly on England match days, and the GMB (obviously
having time on its hands), has launched a campaign asking for workers
to be given half-day holidays when either England or the Republic
of Ireland are playing.
The P&I team is of the view
that Scottish employers should take a lead from our Italian comrades.
Michele Traversa, president of the provincial authority in Catanzaro,
is suggesting a two-hour break each morning for public sector workers
to watch matches on television screens in their offices and is in
discussions with unions in an attempt to stop people phoning in
sick whenever Italy play.
We applaud such a realistic approach
to the issue and will be happy to provide negotiating points for
branches should they wish to enter into discussions with their employers!
@ the P&I Team
14 West Campbell St
Tel 0141-332 0006
Fax 0141-307 2572