The last couple of months have been a bruising one for the PCS Union in respect of ballots and elections.
Across the union there was huge amounts of work to get members to vote in the industrial action ballot against the government’s pay policy, that is content that is content to force its own staff into the arms of the benefits regime because of their own pay. Across the country this includes civil servants being paid less than the living wage. Unfortunately, despite receiving its biggest ever industrial action mandate with over 124,000 votes case and a 78% support for industrial action. However, the votes cast only equaled 47.7% of the members included in the ballot and so marginally missed out on the 50% threshold imposed by 2016 Trade Union Act. It is a galling decision given that no other comparable election is required to meet such a threshold. As the IER notes the ballot came “in the week that local council elections produced an estimated turnout in the 30-40% range, falling well below the standard expected for unions, yet affecting the everyday lives of millions of residents.” It is all the more galling, and indicative of the government’s real agenda that it is happy to apply this more stringent test whilst simultaneously continuing to drag its heels on the review of the need for postal ballot votes which becomes more and more of an anachronism with every passing day.
And, in internal union elections, the result of the union’s Assistant General Secretary and NEC elections have been announced with John Moloney of the Independent Left (IL) faction securing the post. In the NEC elections there were also three IL posts although the majority of the NEC still held by Left Unity. These were far more bruising elections than has been the case in recent years as the Left Unity vote was split between Chris Baugh the official LU candidate and Lynn Henderson supported by Mark Serwotka.
In what may become a semi-regular feature here are the union related stories that have caught my attention this week.
The shadow Chancellor John Mcdonnell MP has bowed to Northern Irish delegate concerns at the Prison Officers Association conference had withdrawn from his speaking engagement despite being minutes from stage when he made the decision given controversial comments McDonnell had made about the IRA. Steve Gillan, the union’s General Secretary in a statement reported by the Guardian said “John McDonnell asked to be excused from addressing this year’s conference as he wanted to avoid any distractions from the union’s policy making discussions and campaigning plans.”
Long standing president of the PCS Union Janice Godrich has announced on her she will be seeking election to replace Chris Baugh as Assistant General Secretary of the Union by seeking the nomination of the Left Unity faction and has received the support of Mark Serwotka in that decision. The Socialist Party are suggesting, bizarrely, that this is a “divisive step that threatens a split on the left.” It’s worth noting that Janice has not declared she is standing against Chris Baugh in the election itself but is seeking to win an election for nomination within the Left Unity faction to go forward as Left Unity’s candidate and I would expect whomever loses that election to honour the result and not stand for AGS in the PCS election proper next year.
Former Unite General Secretary candidate and dismissed union official Gerard Coyne has lost one of his legal challenges to Len McCluskey’s re-election as General Secretary. The challenge was focussed on whether, in calling an election before his five year term was complete McCluskey broke union rules. Coyne has announced he has appealed the Certification Officer’s decision to the Employment Appeal Tribunal. For my part, having read the judgement I think the decision is the right one but Coyne’s appeal is perhaps stronger than the political commentators such as Swawkbox suggest.
Unions in the Civil Service face a herculean task in needing to get each and every union member to effectively re-join their union following Francis Maude’s pressure to withdraw the ability of union members to pay their subscriptions direct from their salary. The challenge is one other unions can learn from.
In his article for Civil Service World on the challenges currently faced from the Cabinet Office’s campaign to attack independent trade unionism in the public sector Mark Serwotka describes the challenges to trade unions well.
In the dying days of the last Labour administration, I said if you judged a government by how it behaves as an employer, it was the worst we had ever known. But let there be no doubt, this current crop of ministers – who I hope, come May, will all be following in Francis Maude’s footsteps, packing boxes and saying their goodbyes to staff – have far outdone their predecessors.
Look at their civil service record. Ninety thousand jobs gone; pay and pensions cut, causing living standards to fall by up to 20%; redundancy terms slashed; working conditions rolled back; a hated and discriminatory performance management system; and more politicisation of the senior ranks.
Inseparable from this is the treatment of trade unions. We know how much further the Tories would seek to restrict union rights if they are re-elected. They have already cut facility time – which we also know benefits employees, employers and the wider economy – and, since 2010, they have degraded industrial relations beyond recognition. In the name of austerity, budgets and remits are so tightly controlled that the fiction of delegated bargaining plays out as both comedy and tragedy.
But it is the move against my union’s finances that is the real give-away. After Eric Pickles’s failed and costly attempt in communities and local government in 2013, the Home Office was the first major department to confirm its withdrawal late last year, followed by the Department for Work and Pensions. These hasty removals only make logical sense in the context of the general election. Tory ministers, fearing defeat, want to do as much damage as possible while they still can.
Despite the fact many large UK companies still use check-off because they recognise it is efficient, Maude claims there is nothing untoward about his mission to remove it. And in a frankly bizarre twist of reality, he has cited the fact we are signing up our members to pay by direct debit – a Herculean task to effectively re-recruit at short notice tens of thousands of people – as evidence that we agree with him.
But if there is no political motive, there is no rush. If it is more appropriate for a union to collect its own subscriptions, we could reach an agreement for a smooth transition over time that would not leave us out of pocket. That is, quite obviously, not what is happening.
There is little doubt that the move is intended to target organised labour in the UK Civil Service. When the removal of Check-Off was first attempted by the Department of Communities and Local Government (DCLG) led by the Conservative minister Eric Pickles the rationale was financial. The costs of administering the fund – estimated at £300 per union – were purported to be an unfair burden on UK taxpayer’s. In his attempts to save £300 a year for the UK taxpayer Pickles incurred legal costs – paid for by the UK taxpayer – of £90,000 after PCS successfully sought an injunction against the decision on breach of contract grounds. When consultations were ongoing PCS actually offered to meet the costs of the check-off system from the government so there is no question that the decision was not based on finance, as the Lib Dem Treasury Minister Danny Alexander himself more recently confirmed.
However, as early as 2012 DCLG were urging local authorities to remove check off (emphasis added):
18. Some employees who are trade union members pay their union subscriptions by deduction from their pay at source. The money is then passed direct to the union by their employers. Employers are not required to provide this facility – known as‘check-off’ – or to keep making such deductions indefinitely.Where employers do choose to provide this service, they may also choose to charge the union for the administration involved in doing so.
19. Many councils seek to recover the cost of providing ‘check-off’ facilities by charging trade unions a proportion of the value of the fees collected – for example, from 0.5% to 5%. We consider that charging for collecting trade union subscriptions is one example of sensible savings that can be made in local government. Alternatively, local authorities have complete discretion to terminate such arrangements, and allow trade unions to adopt their own ways of collecting subscriptions (e.g. bank Standing Order or Direct Debit).
In point of fact, as DCLG was to find out, the claim of “complete discretion” for local authorities was misleading. In Hickey and Anor v Secretary of State for Communities and Local Government  All ER (D) 24 the court decisively found the far from having “complete discretion” the decision of the department to withdraw checkoff was in actually in breach of contract.
But that decision has not dissuaded the Conservatives, cheered on by the likes of Conservative Home, from pushing through the removal of check off in departments even though there may be a contractual right to have deductions of union salaries direct from their salaries as there was in Hickey.
But we are where we are. And as we face the prospect of new administrations in Local Authorities – and, sadly, we can’t rule out that some Labour led councils will not follow suit – there is every prospect that the battles that have beset PCS will be replicated across the UK in local authorities where check off remains. And so, in no particular order, here are some observations for other unions that may face these same challenges in the months ahead; they are all in fact quite straightforward and commonsensical:
Study your contracts of employment – In PCS I think, even with the important win in Hickey we have been too reticent in pursuing breach of contract or JR proceedings. A robust, prompt and publicised legal challenge would have sent a message to other department and give pause for thought for some departments; although such a challenge is still possible it is in some already sense too late – the decisions have now already been made. So the advice is plan a case now – hopefully you won’t need to lodge it but if you do have your evidence lined up and get the case in early. One or two early wins could stop prevent a domino type run of check off withdrawal.
Talk to the members – and non-members. This sounds any obvious one but the decision meant we have had to get out to members where they worked and engage directly with their concerns, essentially we had to recruit them to the union all other again. Do not rely on emails, sadly most members simply to do not read them. And don’t forget the non members too – the campaign to re-sign members to the union was also a boon for recruitment figures as thousands of new PCS members have joined the union.
Don’t screw over your allies – employers have their ploys to undermine the union voice in a workplace and one of these is to play off one union against the other. Don’t fall into the trap and allow yourself to be a tool in someone else’s war. I will post more on this later but while here it was Unison taking the thirty pieces of silver Maude offered them and accepting union recognition (against a fair number of objections from the Unison ranks but which others had been advocating) there is no reason other employers will not use – for example – GMB to undermine Unison etc in other local authorities across the UK. Solidarity should be something unions live and breathe. The tactic was clear, encourage members to ‘union shop’ and so reduce the collective voice of workers as members are faced with the conscious decision to maintain their union membership.
If you recruit new members onto check-off then stop. As the threat to check off became clearer PCS changed its application forms to only accept new applications with a direct debit mandate, even if an applicant’s employer allowed check off. In due course there will be a debate in PCS about whether the NEC (or, more likely, previous NECs) were too slow in making this change, but that is a debate for another day. However, a look at my branch records would reveal that had such a decision been made at the time the Conservatives came to power then the branch sign up rate to direct debit subscriptions would have been around 25% rather than the less than 5% it actually was when a decision to remove check off was announced. I cannot emphasise enough how much of a headstart that 20% would have made made to our organising efforts. So, if you allow new members to join onto check-off stop it now. Quite apart from anything else the industrial logic of having a union’s financial security in the hands of an employer they sometimes find themselves at loggerheads with is negligible at best!
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:
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
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.
In 2013 the Employment Appeal Tribunal delivered its important judgement on trade union rights in Toal v GB Oils.
The case was in the interpretation of the right of a worker to be accompanied at a disciplinary or grievance meeting by a trade union representative of their choosing. Section 10(2) of the Employment Relations Act 1999 sets out that:
(2)Where this section applies the employer must permit the worker to be accompanied at the hearing by a single companion who— (a)is chosen by the worker and is within subsection (3),
In the case an employee was called to a disciplinary meeting and requested that he be accompanied by a named representative of his trade union (Unite), who was based some distance away. The employer refused the request because it did not consider the request reasonable, but did allow the employee to be represented by another worker.
In the ACAS Code of Practice then extant the reasonableness of the request included the choice of the companion, hence if the choice of accompanying union rep was ‘unreasonable’ it could be read as being capable of refusal:
To exercise the right to be accompanied a worker must first make a reasonable request. What is reasonable will depend on the circumstances of each individual case. However it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing nor would it be reasonable for a worker to ask to be accompanied by a companion from a remote geographical location if someone suitable and willing was available on site.
The last sentence was clearly apposite here.
However, Toal, at paragraph 20 of the judgement,found the ACAS Code to be in breach of the text of the 1999 Act: “there is, in our view, no lacuna to be filled. Section 10 of the 1999 Act works perfectly well read and understood in accordance with its straightforward language.” The result of this is that if a trade union rep meets is a properly accredited representative then an employee may request accompaniment by the representative and this must be allowed by the employer (it does not in fact matter if the employee is even a member of that trade union or whether the rep is a employee of the employer) – it is necessarily reasonable.
Professor Gregor Gall has joined 32 other academics in criticizing the Civil Service’s approach to industrial relations in a letter to The Independent last Friday:
As scholars of industrial and employment relations, we condemn the unilateral action by the Coalition Government to remove the “check off” arrangements from the Public and Commercial Services (PCS) union. This follows on from other actions against PCS, including reducing facility time for union reps, victimising reps, marginalising PCS in multi-union negotiations, and supporting a breakaway union in the HMRC.
Such actions go against the spirit and practice of conducting good industrial relations, promoted by the likes of the Advisory, Conciliation and Arbitration Service and by the UN International Labour Organisation (of which Britain is a member).
The way to resolve any industrial dispute is to conduct negotiations in good faith with the bona fide representatives of the workforce. We expect higher standards of conduct from the employer in industrial relations here because these industrial relations concern the running of public services.
We urge the Coalition Government to withdraw its notice of termination of “check off” arrangements and to allow an independent third party to conduct a review of industrial relations in the Civil Service with a view to making recommendations for the return to orderly industrial relations. We note the such a review was used to good effect and with the consent of both unions and management in the smoothing out of many industrial relations issues in the Royal Mail.
Professor Gregor Gall
University of Bradford
Professor Stephen Bach
King’s College, University of London
Professor Susan Corby
University of Greenwich
Professor Ian Greer
University of Greenwich
Professor Irena Grugulis
University of Leeds
Professor Miguel Martinez Lucio
University of Manchester
and 27 others
There is no question that there is a concerted effort to harm PCS, be far the largest trade union in the civil service, but given the last Tory government’s attacks in GCHQ that should be a surprise to no-one. This time round it is the abolition of Check-Off that is the primary means of attack, a move that has been snuck in before the General Election in May 2015. But one of the sub-plots is the government’s maintenance and encouragement of alternative staff associations in an attempt to divide union memberships such as is seen in the National Crime Agency and HMRC. Given just days after this call HMRC reneged on an earlier pledge not to abolish check-off I think the signs of a mea culpa from the Government can best be described as ‘remote’.
But what of inter-union relations within the TUC? Perhaps the most pernicious move of this Government, which has attracted limited public attention, was Francis Maude’s direct instruction that Unision, a union with next to no membership base in the civil service should be given negotiating rights. As Left Unity make clear, and I fully agree, this is “a drive to divide the union movement.” In the same way that PCS must, if given a similar ‘offer’ in say healthcare refuse so Unison should refuse this offer. It is pleasing that some Unison figures such as Jon Rogers have called on Unison to reject the offer:
It is deeply unfortunate that Tory Minister Francis Maude dictated that UNISON should be give negotiating rights in the civil service in circumstances in which this could so easily be made to appear a reward for UNISON having done the employers’ bidding over pensions. (We don’t need such rights and ought really to repudiate this unwelcome offer).
I am sure we in UNISON never meant to make ourselves look like Tory stooges in this way!
Now would be a good time for us to make our support for PCS crystal clear.
Gregor Gall is right to call for a more constructive approach to industrial relations from civil service leaders. But equally, let’s also have a clear commitment from TUC unions to refuse to be pawns in the political machinations of those leaders. To date, unless I have missed it, Unison has given no clear rejection of Maude’s offer.
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.