Final proposals for the operation of the Government's Union Modernisation Fund (to help unions become more efficient) were published recently by the Department of Trade and Industry.

There will be £5-10 million available to support innovative projects such as training union representatives, reviewing internal union structures; and enabling unions to broaden their dialogue with members by greater use of the Internet and other new technologies.

The fund, created by the Employment Relations Act 2004, cannot be used for the day-to-day work of unions, supporting recruitment drives, advancing a union's position in collective bargaining or trade disputes, or for representing individuals in disputes with a particular employer.

It is expected that the fund will be formally launched and a first call for bids issued later in the summer.

 

Unions win more recognition

Unions won 179 recognition deals last year, a slight increase on the year before, according to the TUC's annual Focus on Recognition survey.

Although the number of deals has gone down since 2001 (the year after the Employment Relations Act 1999 came into force), unions are still winning twice as many as they were before 1999.

Over 90 per cent of the deals covered collective bargaining over pay, hours and holidays - up from 80 per cent last year.

Just under three quarters (73 per cent) covered collective representation on grievance and disciplinary issues. Over three quarters (78 per cent) dealt with bargaining or consultation over training and learning, and 42 per cent covered bargaining on pensions.

The survey represented 4.6 million members (71 per cent of the TUC's total affiliated membership), a much lower proportion than the year before (91 per cent), so the number of recognition deals recorded is likely to be an underestimate.

 

No opt-out from working time

Although the European Parliament voted recently in favour of removing the UK's right to opt out of the 48-hour maximum working week (see LELR 101), the Government has now managed to stall those proposals.

The directive's definition of on-call time would also have been amended to include "inactive" time when the worker is on call, but not working.

At a recent meeting of the Council of Ministers, the Government, with the backing of a number of other employment ministers, forced the issue to be dropped. It argued, among other things, that the changes would restrict flexibility in the labour market.

This is a point repeatedly underlined by business organisations and employers' groups. The TUC, however, says that the concerns of Government and business are not well founded and has produced a briefing to counter some of their arguments.

The briefing infludes a fact file that demolishes the myths that are being peddled by employers about the effect of the 48-hour week on health and safety, worker choice and business success.

These include the myths that long hours are not a health and safety issue; that the UK has a good health and safety record; and that everyone working long hours is happy to do so.

It also examines the areas where employers have maintained a pointed silence, looking at the detrimental effect of long hours on women, families and lifelong learning.

 

DTI equality money

Trade unions can make bids for funding from a £2.5m pot set aside by the DTI to raise awareness of employment equality regulations.

The idea is to help voluntary and not-for-profit organisations raise awareness with individuals and employers about their rights and responsibilities under the 2003 Sexual Orientation and Religion or Belief Regulations.

Project proposals have to be submitted to the DTI by 27 July. 

 

Agency workers

Both the Court of Appeal and the Employment Appeal Tribunal (EAT) have made decisions recently about the employment status of agency workers.

In Bunce v Postworth Limited t/a Skyblue, Mr Bunce tried to bring a claim of unfair dismissal against the agency, but the Court of Appeal has just decided that, because he was not an employee, it had no jurisdiction to hear it.

The agreement between the agency and Mr Bunce explicitly said he was not an employee and that there was no obligation on either party to provide or accept work. Mr Bunce argued that, although he had no overarching contract with the agency, he worked on a series of short term contracts each time he carried out an assignment.

The court said that, although it was possible, in theory, to have a master agreement and individual contracts in respect of specific assignments, the general agreement between the two parties gave such detailed provisions that it could see little room for individual contracts for each assignment.

He also argued that the agency had day-to-day control over what he did, but the court said that the law is concerned with who has control in reality. In this case, it was the client who had the power to direct and control what he did.

In Astbury v Gist Ltd, Mr Astbury brought a claim against Gist, saying that he was their employee and that they had made unlawful deductions from his wages. He had started work as a picker for Gist, but using the services of an agency called Pertemps Ltd.
Mr Astbury claimed that he became an employee when he was placed on a fixed term assignment with Gist. He said that Pertemps were agents for Gist, and that there was an implied contract between himself and Gist as contemplated in Dacas v Brook Street Bureau (LELR 88). The EAT agreed and remitted the matter to a fresh tribunal.

It recommended that, in future, tribunals should join parties (either the agency or the client) to the claim so that all three are bound by the result, in the event that the worker has only brought a claim against one of them.

 

Substantial reason in the news

In Scott & Co v Richardson, the EAT has said that when someone is dismissed because of a business decision taken by their employer, tribunals should not express their own views about the commercial reasons for the decision. They should concentrate on the issue of reasonableness.

In this case, Mr Richardson refused to agree to work a shift system that his employers wanted to introduce and was dismissed. The tribunal said it was not enough for the employer to just state that the re-organisation was a substantial reason for the dismissal - they had to "demonstrate that it has discernible advantages."

The EAT said that this was the wrong approach. The employer just has to reasonably believe that the change had advantages - they did not have to prove that was the case.

 

Pensions consultation

New regulations will soon mean that employers can no longer make major changes to their occupational or personal pension scheme without first consulting the scheme's members.

Originally set out in the Pensions Act 2004, the provisions mean that employers, trustees or managers of a pension scheme, who want to make significant changes to future pension arrangements, must provide information and consult on the proposed changes before making them.

The requirements will affect employers with more than 150 employees from 6 April 2006, those with more than 100 employees from 6 April 2007 and employers with more than 50 employees from 6 April 2008. 

 

Delay on TUPE regs

In LELR 100, we reported that the DTI was consulting on a draft version of the new Transfer of Undertakings (Protection of Employment) Regulations 2005.

The Department has now said that, because of the large number of responses to the consultation, the regulations will not be laid before parliament until the autumn, and wil not therefore come into effect until 6 April 2006.