State of the union
On the back of the Government’s recent proposals to conduct a ‘radical overhaul’ of arrangements under which civil servants are permitted to carry out union duties during working time, Helen Burgess examines the role of union representatives in the workplace.
This article will address the rights of union representatives; whether employers can control the amount of working time union representatives spend on trade union duties; the practicalities of dealing with union representatives and the overlap with the employment relationship; and what the Cabinet Office proposal means for private and other public sector employers.
Introduction
Most public sector employers recognise trade unions in the workplace. Employers may negotiate, consult, or inform with a recognised trade union/s in respect of various employment matters such as employees’ terms and conditions, facilities, matters of discipline, engagement or termination, allocation of work or duties and so on.
There is often a written collective agreement in place covering the relationship and the items that the employer will discuss with the trade union. The union will then appoint, or arrange for the election of union representatives within the employer’s workforce to represent members’ views and interests.
In this article the term ‘union representative’ refers to direct employees of the employer and not to those individuals employed directly by the trade union. It should be noted that where a collective agreement covers all employees within a particular area or division of the employer (whether or not those employees are members of the recognised union) any agreement reached between the employer and the union/union representatives will also bind those non-member employees.
Rights of union representatives
Union representatives remain employees of the employer but also carry out trade union duties either instead of or more commonly, in addition to their employment duties.
Union representatives have had a statutory right to reasonable paid time off from employment to carry out trade union duties and to undertake trade union training since the 1970s. Union duties must relate to matters covered by collective bargaining agreements between employers and trade unions and relate to the union representatives’ own employer.
The right to time off for the purpose of carrying out trade union duties also applies to union representatives engaged in duties relating to collective redundancies and consultations under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).
If prevented by the employer from carrying out such duties, union representatives have rights of recourse under employment legislation through an Employment Tribunal. In essence, they cannot be treated less favourably or dismissed because of the fact they are union representatives or are carrying out union duties. Any dismissal would be automatically unfair and no period of qualifying service is required to bring such a claim.
It is beyond the scope of this article to examine the rights of union representatives in detail but the ACAS Code of Practice 3 - Time Off for Trade Union Duties and Activities, provides a detailed summary of this area.
Can employers control the amount of time union representatives spend on trade union duties?
Employers may feel frustrated by how much time union representatives spend on trade union duties during working time.
Often the key to establishing the boundaries of what is reasonable time off is to build a good relationship with the trade union. However, this can sometimes prove difficult.
Some practical suggestions are as follows:
- Set expectations in the written collective agreement i.e. what amounts to reasonable time off, when it can be expected and what facilities are available for union representatives
- Agree a process whereby union representatives are required to give as much notice as possible of their request for time off, including details of the reason for the time off and how much time is required
- Establish a rota or set periods during which union representatives can spend carrying out their trade union duties
- If any training is required for union representatives, the collective agreement should set out the process by which the union should agree this timetable with the employer
- Employers would be well advised to agree with the union that such duties will not be permitted to take place during busy times or peak periods in demand.
The practicalities of dealing with union representatives and the overlap with the employment relationship
There often comes a point where the line between union and employment duties becomes blurred. For example, if a union representative is voicing what appear to be his or her personal opinions during a meeting with the employer, is he or she acting in his or her capacity as a union representative or an employee?
Union representatives should be ‘speaking for’ their members in their capacity as a representative.
However, what if the employer feels that they are behaving inappropriately by being particularly disruptive or aggressive? Is the employer entitled to discipline the individual?
Trade unions are quite territorial if union representatives are seen to be disciplined or reprimanded by employers on union matters. This could cause industrial relations issues if the employer is regarded as treading on the union's toes. In addition, a union representative has special protection from detrimental treatment because of anything they do in their capacity as a union representative.
If the aggressive union representative was to be subjected to disciplinary proceedings over what they said in the meeting (or the way they said it) their argument would most likely be that they were acting in their capacity as a union representative and therefore to subject them to disciplinary proceedings is a detriment which is prohibited by legislation. How therefore could an employer deal with such a situation?
The safest route is to approach the trade union directly as they have their own set of rules and can carry out their own investigation. The matter should be brought to their attention and the union should be asked to deal with the matter as an internal issue. If, however, nothing happened or the union representative's behaviour did not change, then the employer may ask the trade union to remove the employee as a representative (if there is a collective agreement which contains the ability for the employer to ask for a particular union representative to be removed then this is ideal; if not, the employer could still ask the union to do so but it would not be obliged to remove them).
If the union still does nothing or does not take the issue seriously then the employer could say that until the issue is dealt with they are not prepared to discuss the matter with that particular union representative and if possible, will carry out the consultations without that person being involved.
The employer should ask the union to appoint either a deputy representative or ensure that the other union representatives will feed back to the constituents of the disruptive union representative.
Ultimately, however, if the position between the trade union and the employer reaches stalemate, the employer is entitled to report the union to the Trades Union Congress (TUC) to highlight their concerns and to ask for the TUC to take action against the particular trade union (if it is affiliated with the TUC – 54 unions are currently affiliated). In this example, it may be unlikely that the matter would be escalated to the TUC. However, this could be an option in other cases.
What do the Cabinet Office reforms mean for employers?
On 8 October the Government published its response to the consultation confirming the reforms to the amount of paid time off enjoyed by trade union representatives in the Civil Service.
Although the Government did not even try to change the statutory provisions on time off, it wanted to rebalance the amount of paid time off provided to 6,800 representatives across the civil service. It is estimated that this costs £36m in gross salary. The reforms are not currently intended to extend beyond the Civil Service.
The reforms will see civil servants who are union representatives carrying out no more than 50% of their time on trade union duties and spending the rest of their working time performing duties for their employer. In addition, anyone currently devoting the whole of their working time to union activities would be given a one year grace period, after which time they would be required to reduce to 50% their time spent on union duties.
The changes will not require new law but will be introduced by a central framework and supporting guidance from the Cabinet Office that departments and agencies will be expected to adopt. This will be monitored through quarterly reporting to the Cabinet Office and annual publication. The changes will be reviewed after one year to assess the progress made and identify areas where further support for departments may be required.
The reasons for the reforms in the civil service are cited as to achieve fairness for the tax payer and other civil servants and this can be transposed into the private sector. This development is therefore likely to be welcomed by unionised private sector employers.
However, the changes will not extend to the private sector at the moment, although it can surely only be a matter of time before private sector employers seek to achieve parity with the public sector on this issue. This would be particularly helpful in the current economic climate where growth will first need to come from employers innovating and becoming more efficient; what better way to achieve efficiencies than ensuring employers get the maximum value out of their employees during working time?
Helen Burgess is a Senior Associate at Shoosmiths. She can be contacted on on 03700 86 5028 or byThis email address is being protected from spambots. You need JavaScript enabled to view it..
