Trade Union Strategy - and - The Law Georgina Hirsch, personal views as ex- Union Legal Director

Collective Agreements Industrial Action What are Union Legal Services For? Pervasive Imperatives (Speaking as an ex-Union Legal Director) Outline

o Trade Union rights shopping list o Are you getting more than basic CAC rights? o Hidden ‘No Strike’ Clauses

o CAC applications o Description & Choice of bargaining unit o Numbers – managing expectations o 40% of those who can vote o 3 year ‘lock out’

o Fighting union busters

Legally Enforceable Collective Agreements? TUL(C)RA 1992 s179 “Whether agreement intended to be la legally enforceable contract (1) A collective agreement shall be conclusively presume not to have been intended by the parties to be a legally enforceable contract unless the agreement – (a) is in writing, and (b) contains a provision which (however expressed) states that the parties intend that the agreement shall be a legally enforceable contract. (2) A collective agreement which does satisfy those conditions shall be conclusively presumed to have been intended by the parties to be a legally enforceable contract.” Parts (3) & (4) => can state that certain parts are legally enforceable and use the other parts for interpretation.

Against: o Traditionally quick and effective resolution through strike action o Courts under capitalism unlikely to be helpful re interpretation o Kaur v Rover o BA crew compliment o Awaiting ‘implied term’ test

A possible tool where unlikely to win with strike Hard Times bargains, where employees making sacrifices to keep their jobs

TUPE Transfers TUPE Regs 2006 Generally contractual rights protected – Reg 4 Collective Agreement re terms and conditions continue in force - Reg 5 Liability for ‘sums payable’ to employee under Reg 4 does NOT transfer if the transferor is subject to “relevant insolvency proceedings” (Reg 8(4)) Regs 4 (contractual rights) and 7 (dismissal) do not apply where the transferor “is the subject of bankruptcy proceedings or any analogous insolvency proceedings which have been instituted with a view to the liquidation of the assets of the transferor and are under the supervision of a insolvency practitioner” Reg 8(6) Strategic timing might mean push for transfer before Questions re unions talking to potential buyers

INDUSTRIAL ACTION Legal Challenges & Tory Plans

Gregor Gall highlighted the legal challenges and obstacles The Boring at the heart of Activism: -membership name, job, location, contact details -members entitled to vote, and long lapsed members -getting the no’nas on board for the future

WHAT ARE UNION LEGAL SERVICES FOR?  About 10 years ago…  Indemnity basis for PI funding  No referral fees  No self insurance premiums (CCFAs)  Officers doing Tribunals  Organisation of members….

..more of thesetoday challenges of these

The Golden Years:  Subsidised or free employment tribunal by solicitors  Freed up officers for other work  – but less incentive to keep up with the law  -tribunals got more legalistic  Demands of new, less organised work places  Anticipate attack on facility time, which will put further pressure on officers

Squeeze on funding pot over the golden years Fewer accidents Bumps and slips Stress cases and costly discrimination cases increased + employment cases generally up astronomically – particularly when mass job losses Competition from non-union lawyers on no-win, no-fee

Future developments likely to make the pips squeak Success fees from client’s damages CCFA not recoverable Possible ban on referral fees Big figures for union funds Can the present package continue? Impact on service to members? Is the free work a referral fee?

How might unions respond? Role for workplace mediation for disputes between employees? Proactive re informal stage, and resurrect ‘assertiveness’? Officers start getting experience re low value/prospects cases? Bring in case workers instead? But measure of value against officers? Risks if traditional staff status.. Union Ts & Cs compared to external provision? ET costs in case – member benefit and sols continue?

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