Category Archives: Trade Union Rules

RMT lose age discrimination case brought by union member

The Employment Appeal Tribunal has this week upheld the decision of an employment tribunal that the RMT union directly  discriminated against a union member when, by applying its own union rules, it refused the member the opportunity to stand for the union’s national executive committee (NEC) because of the member’s age.

In RMT v Lloyd the case concerns Anthony Lloyd, an RMT representative. In 2017 the union sought nominations for candidates to stand in an election for the union’s NEC, Mr Lloyd was nominated to stand by two union branches. However, the union rule’s had a clause which stated that:

Subject to complying with all other requirements imposed within the rules, every member seeking nomination in an election must be able to complete the full period of office required of the elected position prior to reaching the normal retirement age: which will not be later than reaching the age of 65 years.

Because Mr Lloyd was of an age where he would not complete the three year term before reaching the age of 65 years the RMT wrote to him to exclude him from eligibility to stand in the national election. The reason for this clearly unfavourable treatment is clearly by reason of age and so it was alleged that the RMT had directly discriminated because of age. However, since age is the only protected characteristic for which there can be justification for  the case turned on whether there was a legitimate aim for the policy which the tribunal decided could not be established. It is noteworthy that this policy was however recently reaffirmed by the union’s conference in 2015.

The RMT policy itself strikes me as wholly unconvincing, especially given there are ample ways the purported aim of inter generational fairness could be achieved by less extreme means, especially given the union’s principal rule (along with most union’s) to oppose all unfair discrimination.

However, the case is a relatively rare one whereby a union is sued for discrimination, especially by a union activist but is a good reminder that, as a trade association of workers the union itself can be subject to a discrimination claim by persons who are not employed by the union under section 57(2)(d) of the Equality Act 2010.

“Conference will decide”

PCS - Democracy Deferred

The common diversion from any debate about the suspension of elections is that “Conference will decide” and so there’s no point getting tangled up in the matter until then. But with the Standing Orders Committee report now online that big debate is finally in sight.

But what immediately strikes you, reading the motions in the opening general debate of Conference, is that the debate has been reduced to a purely theoretical question. Motion A1 asks that we endorse the NEC decision, while motion A2 asks that we censure it. But both accept that the suspension has happened and elections won’t be back until 2016, while laying out near identical actions to take the union forward. The reinstatement of this year’s elections isn’t even on the table.

Sure, motions A4 to A6 all call for the reinstatement of elections this year, but they’re not part of the general debate and won’t…

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So far as may be Lawful

lawIn a recent provocative article for The Guardian the Unite General Secretary Len McCluskey explains the background to a recent Rules change in the Union’s constitution that could pave the way for a major showdown with the the next Government (if Conservative led) over its trade union legislation. It is worth posting in it’s entirety, but readers can view the original version here.

Unions must be able to fight for workers – even if it means breaking bad laws – Len McCluskey

Unite’s rule book sounds just the sort of dusty tome to give employment lawyers headaches. Last week our governing body, Unite’s executive, unanimously agreed to make it shorter. It recommended the deletion from our rules of six little words that have governed our union’s actions: “so far as may be lawful”. So far, so mundane, you would be forgiven for thinking.

But that would be the wrong conclusion: the proposed change in the constitution of the biggest union on these isles marks the sorry place we have reached in our national democracy.

Our executive wants these words gone not because we are anarchists, not because we are suddenly planning a bank robbery, but because we have to ask ourselves the question: can we any longer make that commitment to stick, under any and all circumstances, within the law as it stands? I am aware that this is a dramatic question to raise anywhere, let alone in a room full of lawyers, as I did last night when I addressed the Law Society.

Let me emphasise Unite’s continuing determination to operate ever more effectively within the law, even when that law is an ass and ill-serves our people. Legislation restricting the right to strike, attacking the capacity for trade unions to organise and conduct their own business in line with their own rules, became some warped national consensus last century. Other aspects of that “consensus” – a deregulated financial sector, a flexible labour market, being intensely relaxed about the filthy rich – have been discredited since the global crash. Re-regulation, not deregulation, is the order of the day.

Yet trade union law remains untouched and politically untouchable, the great unmentionable of British politics. It is time it was subjected to the same scrutiny as all the other nostrums and dogmas of the 1980s. Trade unions do not need a change in the law; society as a whole needs a change in trade union law, or little else can change for the better.

The financial crash pulled back the screen on the ugly reality: widening inequality, wealth concentrated at the top, a shrinking percentage of GDP going into the pockets of workers, and governments unable or unwilling to confront vested interests. This is the world in which trade unions now operate. It is not by chance that these trends have accelerated at the same time the role and function of trade unions have been restricted and diminished. As long as companies can make more money by paying their employees less, or by sacking easily and then hiring cheaply, or by cutting corners on safety, then trade unions will need to exist. This was the case at the onset of industrialisation and it remains the case today.

Labour’s victory in 1997 was one of the happiest days of my life, and it brought many achievements to be proud of, not least extending civil rights for minority groups, the minimum wage, the family friendly policies that saw vast improvements for women and children, and significant investment in our public infrastructure and the NHS. But that first Labour government, with its huge parliamentary majority, did nothing to alter the legal superstructure that allows for the skewed accrual of wealth and power in our society. Tony Blair even boasted that Britain’s labour laws were the most restrictive in Europe.

Today, thanks to those laws, it is hard for any employer to fail to get an injunction against a contemplated strike – even a fully balloted and mandated strike. It is no exaggeration to say that the right to strike in this, the first country of free trade unionism, was and is hanging by a thread. Should there be a Conservative majority in May, there will be a new attack on trade union rights and democracy. The bar for a strike ballot will be raised to a level that hardly any MPs would reach in their own constituencies, by a government that has refused our requests to use modern, more effective balloting methods.

Agency labour scabs will be licensed to break strikes. Restrictions imposed on our campaigning role in the Lobbying Act will be followed by laws to make picketing nigh on impossible, too, attacking our ability to put pressure on an abusive employer in defence of our members.

It’s tempting to see this as simply a reversion to type by the Tories but that’s only half the story. The attack on trade unions is Tory core practice because they are well aware that they can get away with their desired assault on our national fabric only if they neuter any potential opposition, and the trade unions above all. They want to reduce us to the role of concerned spectators while they tear to bits every advance that working people have secured, every protection we have built up. Against that background, should the law, when made by an elected parliament rather than a despot or a dictatorship, be respected under all circumstances?

To take a stark example, before 1967 any man who slept with another man was breaking the law, as made by an elected parliament. Who, today, would dare to say that they were criminals, or that they should have been obliged to obey a law that, however democratically sanctioned, represented no more than the prejudice of ages? A more recent example: when Margaret Thatcher criminalised trade unionism at GCHQ, would any employee there who, in secret, maintained his or her trade union membership, be a criminal? Were they not right to break that law while it was in force?

It was, of course, a Tory, and eminent lawyer, Quintin Hogg (Lord Hailsham) who first warned of “elective dictatorship”, of a majority imposing its views – ignorant ones in the case of both gay rights and trade unionists as a security risk – on a vulnerable minority. People have intrinsic rights that can sometimes be violated, even by democratically elected legislatures. The right of working people to combine, to organise, is one of them.

If partisan legislation designed to push the legitimate democratic work of trade unions outside of the law is driven through parliament then we, in Unite, will not go gently into the night. We will rage against the dying of the light. We will drive forward with modern technology and use it to increase turnouts in our ballots without being shackled by prescriptions – such as postal ballots – imposed in another age. We are not going to let the Tories destroy our democracy by shackling us to archaic procedures.

A union’s job is to fight for working people’s rights. If, in the year in which we mark the anniversary of Magna Carta, the government wants to challenge fundamental rights of the citizen, then I believe they will be facing not just the trade union movement, but a huge section of our civil society. When the law is misguided, when it oppresses the people and removes their freedoms, can we respect it? I am not really posing the question. I’m giving you the answer. It ain’t going to happen.

Mark Serwotka Responds on Suspension of PCS Union Elections

Serwotka's response to legitimate questions of union members leaves a lot to be desired.
Serwotka’s response to legitimate questions of union members leaves a lot of questions unanswered.

The decision of the PCS Union’s National Executive Committee to suspend the union’s internal democracy as it relates to elections for the NEC and group committee is understandably a very contentious one; it is also one I disagree with as I have set out before.

One PCS branch, the Bootle HMRC branch (I am sure there have also been many others) wrote to the Union’s General Secretary asking a number of questions about the decision. The letter send can be read here, but the letter begins with a comment criticising the decision on the basis of the lack of consultation and then proceeds to ask two questions:

  1. The branch asked, noting that legislation requires only the NEC election to be conducted by means of a postal ballot why the NEC felt there were no alternatives to reduce the costs of the election in the other ballots (for example, by holding an electronic ballot); and
  2. The branch also asked why the NEC had relied on a supplementary rule of the union to suspend elections that are required by a Principal Rule of the union when these Rules require that in the case of any conflict it shall be the Principal Rule of the Union that shall take precedence.

These are not unreasonable questions.

On 27 February Mark Serwotka responded to the branch, the letter is available to read here. Readers can have of course make their own minds up on Serwotka’s response but to me it fails to really grapple with the questions that were posed to him. No one is going to disagree that the attack is an ideological one, particularly given the PCS’ offer to fund the running costs of check-off, a point reinforced by Danny Alexander’s “no fiscal case” letter to Permanent Secretaries sent from the Treasury.

But Serwotka’s response, in detailing the time line doesn’t answer the question why the NEC felt it had no alternative but to suspend elections with no consultation. He has said clearly that the decision was not a surprise and that this issue was a constant one through the last year; it was surely right for the union to politically campaign to avert the possibility of check off being removed but his answer seems to come down to the following: we couldn’t consult because we didn’t know how many people would switch and so, and I infer this (it is not set out clearly) therefore the union did not know what the financial implications would be for the union until we had gone through the process in one department, namely the Home Office. With that information the union could set a benchmark for what kind of income loss the union could reasonably expect. An accurate assessment was always difficult but, as Serwotka has said elsewhere, this was always a “herculean task” and other union’s faced with such a threat have consistently fared less well than PCS have in retaining over 70% of its membership. Therefore, it seems to me that with the real prospect of a withdrawal of check off there were good reasons for believing the financial pressures on the union would be worse than they actually now are. Consulting members earlier on the financial situation and actions the NEC would consider as a result of this would then seem to have been a more responsible course of action.

There may be a reason why earlier consultation with branches was not practical, even though there was a clear financial threat to the union that was known for a long time (e.g., negotiations behind the scenes in confidence). However, if there was it is not one Serwotka has explained here. I am also conscious that I am criticising Serwotka’s reply but in fact he was for significant periods – quite reasonably due to ill-health – not available to lead the union and so the blame for this failure to consult does not rest with Serwotka himself.

On the question of what other thoughts were given to other forms of elections which would be less costly there is, as far as I can see, no response given.

In respect of the second question what is noticeable is that there is no real attempt to answer the question at all. It would have been quite easy to answer to say this is a complex matter but the union sought legal advice who advised that their proposed actions were lawful and while regrettable felt the NEC had to take the course of action it did. Instead, it failed to engage on the question of the Union Rules at all – that failure to address the point at issue is itself quite telling.

PCS/Unite merger still alive, allegedly

Labour Uncut is reporting that the Unite/PCS merger is still a distinct possibility, and expects the NEC to put forward a motion to this year’s ADC. Here’s a snippet of the article:

PCS has been wracked by well documented financial problems. The sale of the union HQ, which was agreed at the union’s national executive meeting at the start of December, was meant to have placed PCS on a more sustainable financial footing.  But just days later, an emergency executive meeting was called for the 18th December.

With one hour’s notice before the meeting, executive members were given papers that included a proposal to suspend next year’s internal election. The reasoning was that the £600,000 cost would sink the union and delaying it by upto year would help enable PCS’ survival. The motion was passed but with no wider debate across the membership.

PCS insiders have taken this as the clearest sign that merger plans are being revived.

Few believe their leadership’s explanation that this is about cost. Why wasn’t suspending the election discussed as an option along side sale of the HQ? What changed in the week following the scheduled NEC meeting in early December? Many view the emergency meeting as a means to railroad the suspension of internal democracy, which in turn allows the core leadership to fast-track negotiations with Unite, unencumbered by the accountability of elections in 2015.

The power of the Socialist Party cabal at the top of PCS, and their desire to link up with their party comrades in Unite is viewed as the primary driver for merger. The financial crisis merely provides a convenient rationale.

Post-merger, the unified PCS and Unite contingent from the Socialist Party (SP) would take control of the left of the new union, building SP support, much in the same way that its predecessor – Militant – once dreamed of building out its support from the left of the Labour party, if and when the Bennites took over the leadership.

The expectation is that a merger proposal will be put to PCS’ annual conference in May, just days after the general election. The motion will likely be wreathed in warnings of imminent financial disaster (unmet pensions obligations, redundancies and insolvency) if it isn’t supported and, in an atmosphere of panic, passed.

Is there any truth in the suggestion? I have no idea but can’t say it would be a surprise if such a motion was proposed, although how the Standing Orders Committee would justify its inclusion would be interesting since there is already a clear position on the matter by ADC.

Why trade union elections are expensive

The reason the PCS Union NEC cancelled suspended elections this year is because of the financial cost. The figure given is that the cost to the Union is £590,000, it is not known how much of that comprises the cost of the NEC elections. Let us say however, that it is £300,000 (half the total).

In this post I want to set out why these union elections are expensive. It is PCS policy that all lay posts shall be elected annually, this includes the entire NEC, including the Union President. That is not a statutory requirement, which requires that these posts must be subject to election only once every five years (as the Union’s General Secretary and Assistant General Secretary are). The requirement for the Union’s President to be elected at least every five years is set out in section 119  of the Trade Union and Labour Relations (Consolidated) Act 1992. This requirement applies irrespective of any requirement in the Union’s rules.

In addition, each member of the Union’s executive, meaning “the principal executive committee of the union” (and, like Highlander, there can be only one) which in PCS is the NEC must also be elected once every five years.

It is of course right that unions should hold elections and holding elections five years seems a reasonable maximum period, particularly given it now concurs with the interval between General Elections. But the 1992 Act does not just require elections but requires that these elections (namely, the election of the NEC) shall be conducted by means of a postal ballot (Section 53, TULRCA 1992) and be subject to independent scrutineers (Section 49, TULRCA 1992).

When enacted trade unions (in the Trade Union Act 1984) were able to receive a partial refund on the costs of these undoubtedly expensive elections. In 1993 that partial refund was abolished by the Conservative government.  So, since 1993 trade unions have had to bear the full cost of all statutory ballots it is required to take.

Although the requirement to hold statutory elections only requires five-yearly elections (which would require an outlay of c. £300,000 on the above figures, or by my reckoning £0.73 per member) because PCS’ constitution requires annual election that outlay increases to £1.5m over five years.

This is a very high cost for elections, and much higher than necessary. It is entirely possible, as the TUC have argued in the context of strike ballots which operate on similar restrictions, to run independent scrutineered ballots and much lower costs than that required by the 1992 Act that would also increase turnouts. So, although Jon Rogers may be right that the PCS NEC’s decision is a gift to the Tories, it remains the case that they could have made legislative changes that would have increased worker’s engagement in workplace democracy but have chosen not to.

There is certainly a question of procedural injustice here – a union, like PCS, that has an explicit policy to be far more democratic than the statutory minimum (5 elections held where only one is required by legislation) is given a significant financial obligation (in PCS’ case approximately and additional £1.2m over five years) by needing every NEC election to be conducted by postal ballot. Any political party professing to support workplace democracy needs to address that.

In short, none of the above alters the fact that PCS’ rules require annual elections and the NEC have made a decision to not abide by that requirement this year but the pleadings that the elections are a significant financial burden certainly has merit. And that requirement is required by the UK’s industrial law – the NEC could have made a decision to run an election on a non-statutory basis but that would, in all likelihood, have caused even more of a financial burden and, possibly, have spelt the end of the Union.

However, as others have pointed out these onerous requirements only apply to the principle executive body of the union, and not subsidiary bodies such as Group Executive Committees. Here, there is no legal requirement for any election to be postal. It is unclear why the NEC did not decide that group elections could not be made by workplace balloting or by much more cost effective digital voting platforms.

PCS Elections: Round Up

UPDATE – 07 Feb

Since the last post the following articles have been posted:

If I’ve missed any posts please let me know in the comments.

So it is about three weeks since the NEC’s decision to cancel PCS elections in 2015. It seems an opportune moment to post some links on the reaction to the decision to update this earlier round up.

The decision was announced in the run up to Christmas, in a posting on the main union website in the not especially transparent title “Government steps up political attack on PCS”.

To date the only solidly supportive source is Left Unity’s Left Unity on attacks on PCS and the National Elections. The article itself add little to the official PCS article, citing the need to save resources (the c. £590,000 annual group and national elections are said to cost the union) and focus resources on countering the direct debit challenge.

The central thrust of the of article is that in the context of the harsh political climate the union means the decision was a ‘difficult but necessary’ one but, somewhat ingeniously suggesting that opposition to the NEC decision is ‘right wing’:

Left Unity is absolutely clear that the decision was the only one that could have been taken in the circumstances. The highest possible standards that have been set by the Democracy Alliance national executive has its roots in many decades of struggle to secure the greatest possible democracy for our union. On merger PCS had two-yearly elections and conferences. It was Left Unity, including all the members of the current PCS leadership active at the time, that fought against the right wing to secure annual elections and conferences. Securing national elections was not just won by votes at conference alone. Mark Serwotka and Janice Godrich went to exceptional personal risk in fighting for the right in the High Court, including risking the loss of their own homes.

PCS members will understand and support this decision when it is honestly explained – so too will PCS activists. Right wing opponents of the national executive will attack the decision. Their history in resisting the democratisation of our union and its predecessors will expose their criticism for what it is – shameless hypocrisy.

I have to say how a decision to resist a decision to move away from an ostensibly ‘left’ position is now is a ‘right wing’ attack is a mystery and seems to be a particularly unrefined form of doublespeak. If David Cameron were to come out and oppose all NHS privatisation whilst his opponents were seeking to outsource it I would rejoice, that he’d supported a socialist policy not label it as a ‘right wing’ reaction. As it is, however, although there are complaints from right-wingers with the aforementioned Howie Fuller being a case in point it looks like the majority of the complaints against the decision are from the left (although characterised as ‘non-factional’).

The Alliance for Workers Liberty’s (AWL) article of 30 December PCS leadership suspend elections criticizes PCS for a lack of transparency, considering it is unlikely that the financial report of ADC 2014 had already highlighted the risk to the Union and said it was factored into the considerations:

Thus members and Conference were assured that the continuing decline in membership had been taken account of.

However, just in case a branch or conference delegate might nevertheless have worried about the future post 2014 the report – signed off by Chris Baugh (National Treasurer), Kevin McHugh (Deputy President) and Stella Dennis (Director of Finance) – stated,

“There is no doubt that the union faces serious challenges going forward. The scale of the government attacks is having a significant impact on our income which [is] largely derived from members subscriptions.” So delegates were under no illusion as to the pressures on the union but the Annual report continued, “We believe the further measures set out in this report will ensure we continue to consolidate our financial base whilst protecting the organising, bargaining and campaigning activities that PCS members expect.”

There was no hint that just seven/eight months later, far from continuing to consolidate the financial base, PCS would be confronted with an apparent existential threat.

A similar view is set out  in Howie’s Corner (knowing how much Howie loves the far-left type I am sure that will delight him).

The Way I See Things ties the news in with the apparent hope of certain segments of the PCS leadership to keep alight the hope of a takeover of PCS by Unite and, a simultaneous takeover of the Unite Left by Left Unity.

It’s Spirit Cries in the Wilderness offers an anarcho-syndicalist view of the decision.

Paul Williams and Marianne Owens, two of three NEC members at the meeting who voted against the proposal write for the Socialist Worker in Undermining democracy won’t help union beat the Tories’ attacks. Williams and Owens write:

We have to cut costs, but this is a three-year budget. That should mean asking members and reps for their views how money could be saved.

But above all else we believe that in a democratic union it must be the right of members to decide when the national executive gets elected.

It cannot be for the executive to decide. We believe that this decision should have been taken by conference. At that point we will also know the financial situation we face.

So we voted for the union’s headquarters to be sold and for the financial decisions to be put to conference.

We did not vote for a budget that included proposals to suspend elections or for the suspension of elections themselves.

PFLCPSA devotes its most recent edition to the NEC decision.

The Revenue and Customs Bootle branch, together with the DWP East London Branch established a campaign which thus far has been joined by the DfT London and South East branch uniting around the following statement:

The decision by the emergency NEC in late December 2014 to suspend NEC and group elections was wrong.

  • We will work together in a campaign to seek to get that decision overturned and for NEC and group elections to be held at the usual time. If that does not happen then they must be held as soon as possible.
  • We will agree motions or a motion for the ADC that will achieve elections as soon as possible after the conference.
  • We will seek to get as many branches as possible to agree this statement.
  • We will use social media (be it a blog, Facebook page etc.) to gather support for our campaign in the union and in the wider labour movement
  • We accept and respect that each branch will have differing views on who to support in elections. The sole purpose of this campaign is for NEC and GEC elections to be held at the usual time or if that does not happen then they must be held as soon as possible.

The IL faction have been especially vociferous in opposing the decision in the following postings:

Many of the Independent Left’s criticisms are valid but it must be said the suggestion that the reason for the decision is fear of an IL election victory against the LU is not credible at all. You need only look at recent IL election results, together with their inability to field a left GS candidate to challenge Mark Serwotka to see through that suggestion.

The Democracy Deferred website remains the most important of the responses and includes a copy of the NEC briefing which was given NEC members, or rather, those NEC members able to attend shortly before the meeting.

Your Voice describes the decision as defeatist saying “Facing off the attacks on our union from this government mean not only standing our ground but advancing forward. If we take a single step backwards, in terms of democracy or organisation, then that is a concession too many to our foes”

Jon Rogers, a Unison NEC member characterises PCS’ decision as “An Early Xmas present for the Tories” and comments that “The General Secretary himself is not above the Rule Book.” This is a post upon which (in the comments) the author is described as passive aggressive by PCS President Janice Godrich.

Socialist Resistance comments that cancelling “elections will mean that the opponents of the current leadership will be prevented from standing and putting forward their arguments in elections and leave the existing leadership in place.”

Penultimately, there is the three posts I have penned Why trade union elections are expensive, Cancelling Elections and the PCS Union’s suspension of elections.

Last, and most certainly least, the R&C staff association and darlings of HMRC management the Revenue and Customs Trade Union have used the NEC decision for a bit of politicking; strangely despite being ‘bored’ by PCS they need to talk about them at length. I have no problem criticizing the decision or actively campaigning against the decision and the leadership – that is entirely legitimate. It was perfectly possible, it this were a point of principle, for the RCTUers to campaign and stand for election and defeat the policies it opposed through electoral means in the R&C group and PCS. And if PCS dissatisfaction is as widespread in HMRC as it suggests then it would take only a little organising to win those elections since they, allegedly, stand for the silent majority. That they have chosen to ‘take their ball and go home’ speaks volumes on the political principles and respect for democracy of RCTU ‘leaders’. If you want to change the union because it has gone off track then get involved, get elected, and change things. If you choose not to do that then all opinions expressed should, rightfully, be viewed with suspicion.