UNISON needs to keep activists informed

On 16 April I blogged here for the second time about the amendments to the law on redundancy consultation introduced last October as a result of the Agency Workers Regulations 2010. I said then that “I think it should take less than an hour to draft a simple circular to branches outlining the provisions of subsections (g), (h) and (i)[of s188(4) of the Trade Union and Labour Relations (Consolidation) Act 1992] and offering some suggestions as to how to make use of them.”

I went on to say that; “I have raised this with the appropriate officials some weeks ago. I'll wait one more week before I send anything more out.” On 18 April, our sister union, the GMB issued a clear and simple circular alerting their branches and officials to the relevant change in the law (which those advising employers have been alerting their clients to for some time). At last week’s Regional Local Government Committee Annual General Meeting I was assured that UNISON would be issuing information to our branches – but I have yet to see anything.

We have precious few legal rights, and the rights we have are of limited utility – but the least we should do is ensure that our activists are equipped with an accurate and up to date understanding of what those rights are. UNISON should not be playing catch up with the GMB like this on an issue raised within UNISON weeks ago. UNISON will have dealt with hundreds of redundancy consultations and dozens of TUPE transfers in the six months since the law changed - and in all probability we have been missing opportunities to use important new legal rights because we continue to fail to draw them to the attention of relevant activists.

This isn't good enough.

I have sent the following message to branches in London;

I am writing, as one of your UNISON National Executive Council (NEC) members, to branches in my constituency of Greater London Region for which I have an email address, to alert you to some important changes to our legal rights as trade unionists which have been in force since 1 October last year.

I believe that an official UNISON circular will be issued about this, but as I have been waiting for more than six weeks since first raising this issue with officials to see that circular, and since our sister union, the GMB, has issued a circular which you can read online at http://www.gmbyorkshire.org.uk/downloads/pdfs/New_Consultation_Rights_Regarding_Agency_Workers.pdf, I thought I should now send you this information about new legal rights for trade union representatives to have access to information about the use of agency workers by our employers.

What are our new legal rights?

As well as changing the law about how agency workers should be treated, the Agency Workers Regulations 2010 made some important amendments to legislation which deals with our rights as trade unionists to receive information from our employers in various circumstances. You can read the detail of these amendments online at http://www.legislation.gov.uk/uksi/2010/93/schedule/2/made.

The most important of these changes relate to collective redundancy consultation and business transfers.

In any collective redundancy situation (where an employee proposes to make 20 or more redundancies within a 90 day period and therefore has to consult with the recognised trade unions in accordance with section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 then, in addition to all the information which they have always had to give us they also now have to give us they also now have to give us the following information;

• the number of agency workers working temporarily for and under the supervision and direction of the employer,
• the parts of the employer’s undertaking in which those agency workers are working, and
• the type of work those agency workers are carrying out.

These are the new requirements of the new subsections (g), (h) and (i) of subsection (4) of section 188 of the 1992 Act.

In relation to any transfer of an undertaking which is a “relevant transfer” to which the Transfer of Undertakings (Protection of Employment) Regulations 2006 (the TUPE Regulations) apply the employer also now has to provide the following information;

• the number of agency workers working temporarily for and under the supervision and direction of the employer;
• the parts of the employer’s undertaking in which those agency workers are working; and
• the type of work those agency workers are carrying out.

This is a requirement of the new Regulation 13(2A) of the TUPE Regulations.

Another potentially significant amendment is made to s181 of the 1992 Act, which covers the employer’s general duty to disclose to us information which we request “for collective bargaining purposes”that general duty now covers “information relating to use of agency workers in that undertaking.”

How can we use these new legal rights?

I think that there is quite a lot we can do with these legal rights. These are just some examples

First, if your employer is making redundancies to implement this year's budget you can argue that they cannot even commence the formal 30 or 90 day consultation period until they have provided the agency worker information. Not all employers are collating this sort of information centrally so you can buy valuable time to save jobs (or give yourself some leverage to improve severance terms). Although the limit on compensation for this breach of the law would be up to 90 days’ pay for workers made redundant (see http://www.legislation.gov.uk/ukpga/1992/52/section/189) we can of course also argue – particularly to public sector employers – that they ought not deliberately to flout the law, and we can issue press release accusing them of doing so (if they do). Don’t fall for the argument that they only have to tell you about agency workers in a particular part of their “undertaking” – the law is quite clear that they have to tell you about all agency workers (as solicitors advising employers themselves recognise – see http://www.addleshawgoddard.com/view.asp?content_id=5739&parent_id=5738).

Secondly, since (for the purposes of section 188) "redundancy" also includes situations in which an employer dismisses and offers re-engagement in order to force through detrimental changes to conditions of service (see s195(1) of the Act - http://www.legislation.gov.uk/ukpga/1992/52/section/195), you can also insist upon the information required by subsections (g), (h) and (i) as a prerequisite for formal consultation in those circumstances (which may also flag up an argument that they could save more by reducing reliance upon agency workers than by attacking your conditions.)

Lambeth Council provide UNISON with a weekly report of all agency workers in the Council, where they are working, their job title, how long they have been here and their pay rate – so any other employer can do the same and – even if there isn’t a redundancy situation – you can use the amendment to section 181 of the 1992 Act to ask for that information “for collective bargaining purposes”. Many of our employers could save millions of pounds a year by reducing reliance on agency workers and instead employing workers properly and we should be arguing that they must do this first of all before threatening our jobs or our conditions of service.

Thirdly, in any TUPE transfer, you can insist that they provide the agency worker information. Again, since some employers simply aren’t compiling this information (or are letting it be done by procurement teams who don’t want to disclose it to trade unions) this provides an opportunity to buy time and, although the limit of compensation if they simply press ahead without providing the information is only up to thirteen weeks’ pay (http://www.legislation.gov.uk/uksi/2006/246/regulation/16/made) for affected employees, there is again ample scope for us to embarrass public sector employers in particular if we can show that they are behaving unlawfully. (Also the definition of “affected employees” isn’t limited to those directly involved in a TUPE transfer (i.e. on the “TUPE list”)).

I hope that this limited information is of some use to you at least until UNISON issues us with an official circular giving more detailed information about how branches can use these recent legal rights to protect the interests of our members. If anyone wants to chat about this you can reach me on j.rogers@unison.co.uk more easily than on 07957505571.