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Topical news for activists and staff
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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

Employment Rights
- UK in further breach of the Working Time Directive
- Minimum Wage Increase
- New rules from Europe on Harassment
- Changes to Indirect Discrimination definition

Bargaining issues
- Fat Cats Continue to get the Cream
- Employee Job Satisfaction Plummets

Match time off...?

Contacts list:



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 of Suzen

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 pay

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 is implemented.



Employment Rights

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:

  1. 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.
  2. 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.
  3. 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 definition

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.


Bargaining issues

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.

Scottish Economic 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.

Employee Job Satisfaction Plummets

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 productivity.







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!



Contacts list:
Dave Watson
Dianne Anderson

@ the P&I Team
14 West Campbell St
Glasgow G26RX
Tel 0141-332 0006
Fax 0141-307 2572

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