The complexities of pensions "deals"

Were our Health Service Group Executive (SGE) next week to agree to recommend the Government's "final offer" on NHS pensions - even though it is essentially the same offer against which we took strike action - there is a danger that, in agreeing age-related protection, the Union could be responsible for unlawful, indirect age discrimination.

In order to show that we were not, in those circumstances, in breach of Section 57(2)(a) and\or (d) of the Equality Act 2010 read with sections 19 and 5 of that Act we would have to be able to show that our agreement to age-related protection is a "proportionate means of achieving a legitimate aim".

In order to understand how this point applies in practice, it is always as well to remember the case of Allen -v- GMB (http://www.bailii.org/ew/cases/EWCA/Civ/2008/810.html) in which the Court of Appeal upheld a tribunal finding that the way a trade union negotiated an agreement amounted to unlawful indirect discrimination, remarking in passing that;
"The worst aspect of the case in our judgment was the way in which the... ...Union members were manipulated into either accepting the offer or doing nothing," and that;

"Its [i.e. the union's] obligation to its members is that in return for their subscription it will provide to them without discrimination, benefits and services, not deliberately omit to afford them access to those benefits and services and not subject them to any detriment." Also that;

"Still less is it [the union] free to procure the acceptance or acquiescence of those members by a marked economy of truth in what it says and writes to them."

If I were contemplating asking UNISON to recommend changes to a major pension fund, I would be inclined to err on the side of caution and ask for a full Equality Impact Assessment before making such a recommendation.

Our professional indemnity insurers would expect as much. You might think.
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Section 188 and agency workers

As a child I always enjoyed "The Cat in the Hat Comes Back" in which Dr Seuss's cat draws upon assistance from increasingly smaller - yet more powerful - cats, named sequentially for letters of the alphabet, who emerge from his hat.

Today I am mostly liking little cats (g), (h) and (i), all added to subsection 4 of Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 by virtue of the Agency Workers Regulations 2010 (http://www.legislation.gov.uk/uksi/2010/93/schedule/2/paragraph/4/made).

This important new law requires employers making 20 or more redundancies to notify trade unions about all the agency workers they have. For those of you whose employers have failed to supply such information hitherto this is an important opportunity.

At least in local government, Councillors and corporate senior managers are likely to be sympathetic to reducing reliance on agency workers - but will need our pressure if they are to do anything.

Bearing in mind that subsection 4 of Section 188 is a series of requirements to provide information "for the purposes of consultation" and that - in accordance with subsection 2 - such consultation must be about, amongst other things, about how to avoid or reduce redundancies and must be undertaken "with a view to reaching agreement" with union representatives, the clear meaning of the new subsections of subsection 4 of Section 188 is that the employer should not merely provide information about the current use of agency workers when notifying redundancies but should also be prepared, proactively, to use this information to avoid or reduce redundancies.

I hope that we will encourage and support our branches to use this new law as another tool with which to resist redundancies.
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Defending the public library service

A free public library service is such an important cornerstone of a decent society that it's no wonder this Government are happy to watch it smashed up.

For some reason, libraries are uniquely vulnerable to the perception that the skilled work of their professional staff could easily be replicated on a voluntary basis by enthusiastic amateurs. This perception is founded, more than anything else, on the ignorance of libraries on the part of politicians and senior managers.

The Government's approach to the statutory duty on local authorities to provide a public library service also gives Council's virtually free rein to devastate the service, with library closures in many areas as local services pay the price of bailing out the banks.

All of which makes today's lobby of Parliament important - full information and all the right links are over on the False Economy Blog (http://falseeconomy.org.uk/blog/speak-up-for-libraries-lobby-parliament-on-tuesday).

If, like me, you can't make it to Westminster today, you can still download a model letter to your MP (http://www.unison.org.uk/file/SpeakUp4LibsMP.doc) and email it to them (http://www.theyworkforyou.com/mp/).
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Last chance to lobby MPs to save the NHS

Tomorrow's Opposition Day Debate on the Health and Social Care Bill is the last chance for elected MPs to express opposition to the privatisation and break-up of our National Health Service.

To email your MP follow the links from the UNISON website - http://action.unison.org.uk/page/speakout/last-chance-nhs.

Don't leave this to someone else - particularly not if your MP is a member of one of the Coalition parties.
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Solidarity with UNISON members striking tomorrow against pension contribution increases in the NHS

Solidarity to UNISON members in the Central De-Contamination Unit at Ayrshire Central Hospital Irvine, who are striking tomorrow and Wednesday against next month's "pension tax" contribution increase for health workers (http://unison-scotland.blogspot.com/2012/03/unison-increases-pressure-on-scottish.html?m=1).

UNISON members in the Health Service in Scotland have no option but to fight this - as the Chair of the Scottish Health Committee puts it - "The reality is that many of our members will simply not be able to afford to make the proposed contribution increases due to start in April, and will be forced to opt out of their scheme to the future detriment of themselves, their families and communities - and the public purse."

This week's action is just the beginning of a programme of selective industrial action intended to put pressure on the Scottish Government not to do the bidding of the UK Government given that NHS pensions are a devolved matter in Scotland (http://www.unison-scotland.org.uk/pensions/index.html).

All UNISON members - indeed all trade unionists - should wish the Ayrshire strikers well for their action this week. With the SNP administration in Edinburgh carrying out orders from Westminster, this is a battle in the all-out war which has been declared on our movement by the Tory Coalition Government.

However, since the Scottish proposals (http://www.sppa.gov.uk/Documents/NHS/NHS%20Useful%20Resources/NHS%20Consultations/2011/NHS%20Superannuation%20Scheme%20(Scotland)%20draft%20amendment%20regulations.pdf) against which UNISON members are taking action broadly mirror the proposals in England and Wales, the action of our Scottish comrades is also a timely reminder that nowhere in the UK do health workers have to give in to a slightly revised version of the proposals which were rejected in the run up to the 30 November strike.

(Hat tip to the commentator on the previous post, who reminded me of this).

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NHS Pensions - What if?

UNITE are recommending that their health service members reject the Government's "final offer" on pensions (http://www.unitetheunion.org/news__events/latest_news/unite_calls_for_rejection_of_g.aspx).

This puts them on the same page as the Doctors' union - the non-TUC British Medical Association (BMA), although - unlike UNITE - the BMA are currently calling for support from their members for industrial action (http://web2.bma.org.uk/nrezine.nsf/wd/BSKN-8RXGBE?OpenDocument&C=3+March+2012).

In the mean time the non-TUC nurses' "union", the Royal College of Nursing (RCN) are equivocating following a poor turnout in a consultative ballot, but have not accepted that their members should work longer and pay more to get less (http://m.nursingtimes.net/5042067.article).

UNISON is the largest and most important trade union in the health service but - unlike in local government - we don't have such overwhelming numbers that our decision alone is utterly decisive.

On the face of their "final offer" on the NHS Pension Scheme, the Government make clear that; "If the proposals are not accepted by a sufficient number of Trade Unions, the Government reserves its position on all aspects of this proposed scheme design."

Although it may not be much of a threat that they might withdraw an "offer" which, the Government Actuaries Department (GAD) confirm, is within the same cost ceiling as the "Reference Scheme" offered on 2 November, it does beg the question of where the dispute might go, on each side, if enough unions reject the offer - and of what a "sufficient number" of trade unions will turn out to be.

Incidentally, GAD assume, for the purposes of valuing the scheme, that earnings growth will exceed the Consumer Prices Index (CPI) by 2.25% a year in the long run, which rather puts into perspective the misleading implication in UNISON's published commentary on the Heads of Agreement that a revaluation rate of CPI+1.5% is somehow "better" than revaluation in line with earnings growth, because earnings have fallen behind prices in the recent past.

The whole point of the work undertaken by GAD is surely that you can only assess the value of a CARE pension scheme on the basis of the interplay of the accrual rate and the revaluation rate (considered in the light of the contribution rate). The GAD valuation underlines that it would be dishonest to brag to members about the "better" accrual rate compared to the "Reference scheme" without acknowledging that this is offset by the less favourable revaluation rate. The detail of the information we put before our members will be an indication of our integrity.

As to the question "What if enough health workers reject the Tory Coalition's pensions robbery which would see them working until 68, whilst paying more to get less?" I think the answer to that question is still that we could deliver a unified fight on pensions across the public sector which could win a better settlement.

Key to realising this potential would be a clear recognition on the part of our leadership, that this battle is part of the general war which the Government have declared upon us (and is therefore inextricably linked to the fights over pay, jobs and the defence of the Welfare State and NHS) - and a serious effort to develop this recognition amongst our members.
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Pensions and Equality - the case against haste

The useful website of UNISON's London Ambulance Service Branch has a link to the proposed Agreement on the 2015 NHS Pension Scheme (http://news.lasunison.eu/?p=559). This is to be considered by the Health Service Group Executive (SGE) on 21 March.

Reading the Agreement throws up a new - and very important - question touching upon the timetable for trade union decisionmaking about the proposed Agreement.

Annex F to the Agreement deals with the vital question of conducting an Equality Impact Assessment of the new scheme. The Annex clearly applies equally to the other unfunded schemes and indicates that the following approach will be taken;

• The equality impact assessments will be conducted by the relevant sponsoring departments. In addition, the Government will conduct a central analysis in order to compare and assess the impact across all of the schemes.

• The timescale for the assessment is pressing, and the process must be completed in good time to allow the analysis to influence decision making and the conclusion of the policy development process, prior to the introduction of legislation. Departments will therefore aim to complete the EIAs by the end of May 2012.

• The Government will then complete the central analysis over the following four weeks.

• The central working group will meet in June to discuss the analysis and consider any further action.

UNISON takes the question of equality impact assessments very seriously. Our guidance to our local government branches (http://www.unison.org.uk/acrobat/AA9891.pdf) states; "It is an overriding principle that UNISON avoids entering into an arrangement that introduces or extends inequality as a result of a cuts package. Care must be taken in agreeing to changes in collective agreements or employer action to change contracts of employment."

"UNISON's policy is that cuts in jobs, terms and conditions, and restructuring should be regarded as having 'high relevance' and be fully impact assessed."

"The (general equality) duty is complied with before and at the time that a particular policy is under consideration and a decision is taken. A public authority cannot satisfy the duty by justifying a decision after it has been taken."

In other words, UNISON rightly tells our branches to use the public sector equality duty to insist that employers carry out, and consult upon, equality impact assessments in advance of decisions about, amongst other things, pay and conditions (and therefore pensions).

UNISON's guidance is founded on case law relating to an earlier equality duty, equally relevant today (http://www.bailii.org/ew/cases/EWHC/Admin/2008/2062.html); "The jurisprudence relative to the issues reinforces the importance of considering the impact of any proposed policy before it is adopted... ...The need for advanced consideration must be distinguished from the use of such impact assessments for a rearguard action following a concluded decision... ...What is important is that (an) equality impact assessment should be an integral part of the formation of a proposed policy, not justification for its adoption... ...Time is needed to consider the impact of any assessment. The suggestion that a policy can be adopted contingent on such assessment smacks - of policy-based evidence rather than evidence-based policy."

In other words, referring to my English-Judge Judge-English Dictionary, consideration of the public sector equality duty must precede decision-making. It is not consistent with the public sector equality duty to agree a policy on the basis that you'll do an equality impact assessment later and revise the policy if you must.

So how could we possibly ballot our members in health on the 2015 Pension Scheme before the Equality Impact Assessment had been carried out?

How could the SGE make a recommendation to members without knowing the outcome of such an assessment?

If we seriously mean our advice to our branches about the importance of equality impact assessments (and I believe we do) then we cannot make ourselves hypocrites by failing to follow our own advice about something as centrally important as the NHS Pension Scheme.

That would contravene our "overriding principle that UNISON avoids entering into an arrangement that introduces or extends inequality" because we would not have the evidence from the equality impact assessment before taking our decision.

Surely the SGE must conclude that we cannot recommend changes to a pension scheme concerning which no equality impact assessment has yet been undertaken?
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Responding to the Government on pensions - business unionism or organising unions?

The Government's "final offers" in the three unfunded "pay as you go" major public service pension schemes have been received with less than unalloyed joy (http://www.morningstaronline.co.uk/news/content/view/full/116422).

The largest teachers' union is recommending rejection (in common with unions representing a clear majority of the unionised members of the Teachers' Pension Scheme, and is campaigning for further action (http://www.teachers.org.uk/node/15209).

The largest civil service union, representing the majority of unionised members of the Civil Service Pension Scheme is also recommending rejection and campaigning for further action (http://www.pcs.org.uk/en/campaigns/28-march--vote-yes/index.cfm).

From the largest health union though there is as yet no recommendation (to reject or otherwise) (http://www.unison.org.uk/asppresspack/pressrelease_view.asp?id=2624), This is because our Health Service Group Executive (SGE) will not meet to make a recommendation until 21 March.

This doesn't stop our Head of Health from opining - on our website - that; "The final proposals on the new NHS pension scheme released today have changed significantly from where the negotiations first started." This is (of course) almost inevitably true of lengthy negotiations in which the Government clearly started with wild proposals such as 1/100th accrual rates. The question surely isn't "have they moved at all?" It is; "have they moved significantly since the 2 November proposals which we rejected and against which our members in health took their first national action in a generation?"

Since the extent to which the Government had shifted by 2 November was so inadequate that we called for strike action, to justify "selling" an offer on which the elected leadership have yet to make a recommendation, national officials really should offer an honest assessment of what further progress has been made. This is all the more important since the Chief Secretary to the Treasury claimed on 20 December that the "Heads of Agreement" "deliver the Government's key objectives in full, and do so with no new money since our November offer" (http://www.hm-treasury.gov.uk/statement_cst_201211.htm). If that isn't true we should be able to spell out why it isn't. If it is true then we should be honest with our members and not pretend to have achieved more than we have.

We are also told by our Head of Health that ""Key to the changes that UNISON has secured is success in keeping the fair deal. This is particularly significant in the light of NHS reforms because it allows outsourced staff to remain in the pension scheme."

Danny Alexander (http://www.hm-treasury.gov.uk/statement_cst_201211.htm) says about this; "Because we have agreed to establish new schemes on a career average basis, I can tell the House that we have agreed to retain the Fair Deal provision and extend access for transferring staff.

The new pensions will be substantially more affordable to alternative providers and it is right that we offer workers continued access to them."

A cynic might say that our message to our members might therefore be; "don't worry if we fail to prevent the privatisation of your job, because - since we also failed to protect the value of your pensions, your new private employers have signed up to keep them."

In further shameless marketing of a negotiated outcome yet to receive the endorsement of elected leaders, we are also told that; "In this harsh economic climate it was crucial to ensure that no health worker earning less than £26,000 a year should be hit with an increase in their pension payments this year."

Leaving aside the question of whether those enjoying the fabulous lifestyle which £27,000 brings aren't also feeling the pinch just a bit (as are even those who enjoy the better living standards of our national negotiators), this desperate attempt to make a silk purse out of a sow's ear also rather begs the question of what our health service members are to do when all pension contributions go up next year - when there is perhaps still just an outside chance that there will still be a "harsh economic climate".

The propoganda in favour of the Government offer on the UNISON website concludes with the observation that "In addition, scheme members within 10 years of retirement will receive protection."

Whether we should congratulate ourselves on protecting members on the basis of age (and whether that is really consistent with our Rule Book opposition to age discrimination) is one question. A more important question is why we should present this as part of the reason to accept a worse pensions deal now when it had already been offered to us on 2 November (http://www.hm-treasury.gov.uk/statement_cst_021111.htm). We already had this protection for those within ten years of retirement before we notified the employers of our strike on 30 November. If we struck in spite of it then it can hardly be part of a victory achieved by that action.

I have sat through more than one too many NEC meeting at which sycophants have praised our "world class" negotiators to now join in such a chorus of idiocy in relation to the pathetic "offer" which "we" have "negotiated" for our members in the NHS Pension Scheme.

I cannot believe that any trade unionist worth their salt would vote to recommend this to members in a ballot, bearing in mind that anything other than a clear recommendation to reject will amount to a seal of approval from the pre-eminent health service trade union to a new pension scheme which will deliver the Government's objectives that health workers work longer and pay more to get less.

A democrat interested in member participation might think that we should delay any ballot to enable our Health Service Group Conference - which meets in a few weeks (http://cms.unison.co.uk/ConferenceDetail.asp?ConferenceID=285) to consider and approve (or amend or reject) a proposed recommendation to our members in the ballot (proposed to Conference by the SGE).

A trade union leadership acting with self confidence and a clear conscience would certainly adopt such an approach.

Regular readers Sid and Doris Marxist-Leninist will have picked up that I am unimpressed with the Government's "final offer" to our health service members, but of course that is neither here nor there. I am not a health worker and, as an NEC member, my views have no greater weight than those of any other interfering blogger.

However, we are a trade union, not an opinion polling company. We don't - or at least ought not to - seek the views of members on a question such as this in the abstract, but as part of a plan to build and strengthen our organisation. Therefore the views of our activists are very important, as they are the builders of our organisation.

If - and I merely hypothesise here - we were to embark upon a ballot with an SGE recommendation to accept which was seen by many activists to have been influenced by the sort of inappropriate "selling" of a dire Government "offer" which today shames our UNISON website, we would alienate some of our best activists. Similarly if a ballot were to commence without a recommendation agreed through the appropriate lay structures that would be a gross abdication of responsibility - and would be tantamount to a recommendation to accept as it would signify the unwillingness - or inability - of the trade union to fight on for a better deal.

If, however, Conference makes a recommendation, as was the case (in health) for Agenda for Change and (in local government) for Single Status, then - like it or loathe it - the recommendation has democratic legitimacy. The legacy of bitterness threatened by the approach of leaving it all to the SGE might thereby be avoided.

An organising union would ask Health Service Group Conference to make a recommendation to members in a ballot on the NHS Pension Scheme. A business union would sooner leave it to the SGE. Which is UNISON?
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International Women's Day - an inappropriate contribution

David Cameron (of all people) is using International Women's Day to claim that his Government gives a high priority to ending violence against women and girls (http://www.huffingtonpost.co.uk/blackberry/p.html?id=1327807).

Which is odd - because the evidence is that the Government's austerity programme is doing considerable damage to vital services (http://www.trustforlondon.org.uk/publications-research/gender/professor-sylvia-walby-reports-on-the-impact-of-cuts-on-violence-against-women-services-2.html).

Thirty-one percent of the funding to the domestic violence and sexual abuse sector from local authorities was cut between 2010/11 to 2011/12, a reduction from £7.8 million to £5.4 million.

The hypocrisy of this Government is so brazen it isn't even shocking any more.
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Health workers defend the NHS as their pensions are smashed

Whilst in local government we wait (and wait) for the Government to give our negotiators the nod so that we can be told what agreement has been arrived at for members of the Local Government Pension Scheme (LGPS) ahead of a ballot, our members in the health service are already being notified of next month's increase in pension contributions, against which we all took strike action on 30 November.

The GMB have made a point of expressing outrage that the Government have imposed the contribution increase whilst negotiations continue (http://www.google.com/hostednews/ukpress/article/ALeqM5i-Sk4HW-A_VXgtG4snzz1GdSlm6A?docId=N0961591331124109201A)

In UNISON our Health Service Group Executive (SGE) will have to determine it's recommendation to our members in a forthcoming ballot. UNITE's equivalent lay leadership body (the National Industrial Sector Committee - NISC) is recommending rejection.

UNITE's consultative ballot of their health service members, which opened a week ago and closes on 19 March, is accompanied by a clear and persuasive recommendation to reject the current proposals (http://www.unitetheunion.org/resources/pensions/protecting_pensions_for_our_pu/health_sector_consultative_bal.aspx).

Our website, on the other hand, still hosts the commentary on the Heads of Agreement (http://www.unison.org.uk/acrobat/B5774.pdf) about which I have blogged criticism before (http://jonrogers1963.blogspot.com/2011/12/nhs-pensions-comments-on-commentary.html?m=0).

This document certainly compares unfavourably with the clarity of UNITE's communication to their members - and I hope that plans are in hand for a much more straightforward communication to our members of whatever recommendation our Health SGE decides to make.

Ultimately though, unless the outrage of the GMB or the rejection from UNITE is accompanied by an attempt to persuade members to take further strike action it will end up no different from the deplorable comment reportedly made by a UNISON official that "this was always about damage limitation".

I spent this evening at a very positive rally of (predominantly) health workers committed to defending our NHS (http://www.tuc.org.uk/industrial/index.cfm?mins=395&minors=371&majorsubjectID=8).

The tools which those health workers have to defend the NHS are, first and foremost, their trade unions. If our trade unions cannot improve upon a pensions offer that health workers should work longer and pay more to get less then we shall struggle to inspire confidence in health service (and other) members to use their trade unions to fight to defend our health service.

The speaker who told this evening's rally that we weren't there about pay or pensions but to defend the NHS was much more wrong than right. David Cameron, George Osborne and Andrew Lansley (with their willing stooges Clegg and Cable) are not pursuing a series of discrete attacks upon the NHS, claimants, the pay and pensions of public sector workers and jobs and services.

The Government plainly have an overarching plan to attack the working class, the Welfare State, claimants and trade union rights. They can see a big picture which our trade union leaders must face up to.

If the utmost priority is the unity of the "Big Three" then - unless that unity is used to wage war back against a Government which has declared war on us - we might as well call it "The Triple Alliance" (http://en.m.wikipedia.org/wiki/Black_Friday_(1921)) - though on this occasion we would not see two unions letting down a third but all three letting down their members.

The Government have declared war on our movement and our class. If we are to honour the memory of the generation who, having defeated fascism, gave their lives to build the Welfare State in general and the National Health Service in particular, then we must be as determined in our opposition to them as they are in their attacks upon us.
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The perils of mobile blogging

The triple publication of the last post on this blog (now corrected) is an error almost as amusing as the Freudian slip in yesterday's NEC report to London UNISON branches, in which I misdescribed the "Rally to Save the NHS" as a rally to defend the NEC...
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Broadening the battle lines ahead of M28

Today's Morning Star publishes my review of the Communist Party's pamphlet on the pensions dispute, "Broadening the Battle Lines" by Party Chairman, Bill Greenshields (http://www.morningstaronline.co.uk/content/view/full/116240).

A focus on the pamphlet - and its argument for a united political campaign by the trade unions to defend public service pensions - and for this campaign to be located as part of a conscious political fight against the government - is timely in the run up to the likely strike action on 28 March (M28).

This Monday I attended, with some other UNISON activists, a local organising meeting with representatives of unions preparing for action on 28 March. Although final decisions will be taken in the light of current consultation with NUT and PCS members, on the ground preparations are being made for action to take place on the day.

Whilst we are not in a position where UNISON will be calling for UK wide strike action on 28 March, it is nevertheless in the interests of UNISON members that any action taken as part of the pensions fight has the maximum impact.

A solidarity presence on picket lines - and attendance by UNISON members at lunchtime or other protests and rallies on the day is the very least we should be aiming for. We may not be able, formally, to advise members to respect picket lines - but we can press employers beforehand for assurances that they won't victimise anyone who does so (and we ought to be prepared to use all the resources of the union to defend any member victimised in those circumstances).

Most importantly, we must do what we can to maximise the political impact of the action set to be taken, and the sacrifice being made, by our sister and brother trade unionists. The point needs to be made, to our own members, to employers, politicians and the local media, that there has been no settlement of the pension disputes in health and local government and that UNISON has current mandates for further action in both sectors.

To put our movement into a better position to wage the long war which has been declared upon us by the Tory Coalition Government we need to do all we can to rebuild the unity which we saw on 30 November, and to do so on the basis of an understanding that these are not normal times.

In these times we do not have normal industrial disputes, to be settled by skilled negotiators so that we can return to "business as usual." In these times every dispute is an act in a larger drama, in which our opponents are planning each move of a deliberate war on the organised working class and the social gains of the past century.

We desperately need the same level of understanding and determination on our side as they show on theirs.
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