Collective Bargaining and Increased Competition for Resources in Local Government
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There was a further increase to the level of several thousand claims a year at the end of the s, around the time that European law began to have a major impact on the rights of part-time workers excluded from occupational pension protection. The next major increase occurs in the mids and is associated with the entry of no-win, no-fee law firms and with the mass claims that they and others, including trade unions, launched against public sector employers in the local government and health service sectors.
The volume of claims spikes in —8 at over 60,; by —13 it had fallen back to around 20, a year. Figure 2 compares the number of equal pay claims with the total number of claims registered before employment tribunals across all relevant jurisdictions in the period from the late s to the present. Although there has been a steady increase in the volume of total claims across this period, the trend in equal pay claims did not keep pace with the general increase until the late s, and has generally followed a pattern of its own.
Thus the rise in equal pay claims does not appear to be a simple function of a wider increase in claims across this period.
The rise in overall claims is in part a result of the availability of new types of claim, in particular those relating to working time protection, which were introduced after Nor is there a straightforward relationship between the increase in the volume of equal pay claims and the decline in collective bargaining coverage over this period. Equal pay litigation, however, did not begin a steep and sustained rate of increase until the mids, well after the decline in collective bargaining coverage had set in.
The decline in collective bargaining coverage and the rise of individualised employment litigation can be understood as related aspects of a larger, long-term shift in the nature of the British industrial relations system.
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There has been a move away from reliance on self-regulation by unions and management as the principal mechanism for determining pay and conditions and resolving disputes, towards a rights-centred and law-driven system Deakin and Wilkinson, Had state policy continued to support multi-employer collective bargaining after , it is likely that the collective arbitration mechanisms for aligning collective agreements with the equal pay principle would have been renewed in an effective form after the European Court judgment of If this step had been taken, implementation of pay equality through collective bargaining might have continued throughout the s and beyond much as it had done in the s, where it proved effective in narrowing the gender pay gap Zabalza and Tzannatos, In this sense it could be argued that the decline in the effectiveness of collective agreements as a source of regulation, coupled with the ending of state support for the institutions of multi-employer bargaining, were necessary conditions for the later rise in equal pay litigation, even if the timing of that rise was contingent on a number of institutional factors, including those which prompted the increase in conditional fee litigation in the mids.
However, it cannot be assumed that as collective bargaining declined as a form of regulation, litigation on equal pay or any other employment law jurisdiction, for that matter was simply substituted for it. This is because the rise in equal pay claims has been focussed in those sectors of the economy where sector-level collective bargaining remained effective, particularly in the public sector. This trend, identified by Hepple et al. The rise in equal pay claims which began in —5 saw a near doubling of claims to reach over 8, a year, and peaked with over 60, claims in —8.
This increase was almost entirely located in just two sectors, local government and public health services, with the local authority sector leading the way. Between and , the trade union Unison supported over 40, equal pay claims by its members, the large majority in relation to the SSA Jaffe et al. The catalyst for the SSA was equal pay litigation supported by trade unions in the first half of the s, involving female canteen workers whose pay had been cut as a result of a compulsory competitive tendering exercise. Under the SSA, each job was to be evaluated at local level using a locally agreed job evaluation scheme.
While these bonuses had at some earlier point been related to productivity, monitoring of performance had generally ceased and, as later litigation made clear see Section 4. The SSA was designed as a framework agreement which was to be implemented locally. Given the slow pace of implementation, a new national-level agreement, the National Joint Council Pay Implementation Agreement, was made in , setting a deadline of April for job evaluations to be completed and a further one of March for the new payment system to be in place.
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However, only half of the almost local authorities in England and Wales had fully implemented the agreement by this point. Those local authorities that did implement the SSA within the first few years appear to have avoided the litigation and back pay issues that occurred at many other councils. Of the six local authorities we interviewed for this research between late and early , only one had completed the process early, and this council had experienced no litigation or back pay issues.
Four of the local authorities we spoke to had faced litigation or the threat of litigation from both trade unions and lawyers representing individual claimants. One authority had yet to start the job evaluation process at the time of our interviews. Trade unions and employer representatives we interviewed put the long delay between the negotiation of the SSA and its implementation in many local authorities down to a number of factors. First, the process of implementation involved a detailed job evaluation of every post in each local authority and the parties needed to reach agreement about which evaluation tool they would use as well as the details of the process of evaluation.
State and Local Policies to Support Government Workers and Their Unions
In large local authorities, evaluating every post was a fairly onerous procedure, and the process had to allow time for appeals. Thus, it could take several years. Many councils began their evaluations using paper-based systems, which were slow and cumbersome, and it was not until computerised systems became available that the process could be speeded up.
Some councils used the opportunity provided by single status to deal with other, long-standing HRM issues and bring in a range of changes, so that negotiation over the implementation of single status became enmeshed with a wider reform agenda. Rather than the process of job evaluation being completed at a national level around job profiles, each local authority had to conduct its own job evaluation process.
For most of the officials interviewed as part of our research, the issue of pay cuts was something that they and their members struggled to come to terms with.
Collective Bargaining Union Negotiations Advice | Negotiation Experts: Open Enrolment
Initially many union officials tried to negotiate for lifetime protection for any employee whose pay was to be reduced. Thus in many local authorities the negotiations were slow and fractious, and in some cases they simply broke down. A number of employers we interviewed reported deliberately holding back on negotiating further once the pilot studies revealed the extent of potential change for them, because of fear of significant industrial unrest and the impact on employee morale.
The most prominent no-win, no-fee law firm to operate in the equal pay sector during the s was Stefan Cross Solicitors, a Newcastle-based firm which was established in When acting for the unions in the late s and early s, he had taken a prominent role in the Cleveland litigation. Stefan Cross Solicitors accepted its first cases in March and a year later was processing claims.
Introduction and summary
By it had 30, cases on its books. Claims brought in relation to the implementation of the SSA were of four main types see McLaughlin, First, claimants sued for back pay in relation to past inequalities which the non-implementation or inadequate implementation of the SSA had failed to deal with.
These most often took the form of claims arising from the payment of unjustified bonuses to workers in male-dominated grades. A third legal strategy was to challenge the job evaluation schemes put in place at local level as part of the process of implementing the SSA, where it could be shown that they had a tendency to discriminate see Wright, ; Gilbert, Under the White Book scheme you have four grades of cook and four grades of gardener.
So the grade 1 gardener, the grade 2 gardener, disappear altogether and they end up being an environmental operative. A further type of claim, which was rarely pursued but gave rise to more controversy than any other, took the form of actions against trade unions which had negotiated agreements that were indirectly discriminatory Deakin and Morris, , para 6.
Collective Bargaining Union Negotiation
Unions could be sued under the Sex Discrimination Act for committing discriminatory acts. In the Allen v. The union argued as its defence that its bargaining strategy was justified by a number of considerations, including the need to balance the needs of different workforce groups amongst its membership.
The Allen litigation prompted employers in subsequent cases to seek contribution from unions in respect of liabilities arising from discriminatory agreements, and to put forward union involvement as the basis for a genuine material factor GMF defence. These tactics were largely unsuccessful, with the courts eventually coming round to the view that responsibility for discriminatory payment structures would in most situations lie with the employer. The Allen case came to be seen as somewhat exceptional, but only after a period of several years during which unions faced a novel and open-ended litigation risk.
The claims made in relation to the SSA were at least as complex to bring as the types of claim that had featured in the litigation wave of the s and s. Establishing equal value in the first place could require either an independent report or lengthy deliberations by the tribunal, and employers would seek to rely on the GMF defence to justify pay protection and job enrichment schemes. Legal uncertainties arising from the novel nature of some of the claims meant that obtaining a clear ruling on the scope of the GMF defence could delay consideration of the merits of a claim by months or years.
The rapid rise in cases registered did not translate into immediate litigation success.
Figures 3 and 4 show trends in registrations and disposals of equal pay cases in the period from , when cases brought following the initial rise in mass claims began to be decided. Disposals have generally run well below the level of registrations, and very few result in a final judgment in favour of the claimants. Official statistical series do not indicate whether withdrawn applications led to a settlement, but it is likely that many of them did. Table 1 sets out in synoptic form the features of some of the most important equal pay cases decided in this period, most of which arose under the SSA.
As the table shows, by contrast to the disposal figures just mentioned, claimants in these leading cases were generally successful in the legal arguments that they put forward and in obtaining compensation. Some of these claims were continuing at the time of writing January , as further appeals were pursued or additional legal points raised. The litigation in Birmingham was the most high profile of the cases pursued in the course of the litigation wave of the s, involving over 4, claims. Single status was introduced on 1 April with retrospective effect to 1 April , but only in relation to non-schools employees.
The schools transition occurred later. The litigation focussed around six comparator groups, with the focus on two male-dominated grades, the Fleet and Waste and Highways comparators. The first tranche of tribunal litigation took place in March and April and was concerned with arguments that the claims were either out of time or should alternatively be struck out for non-compliance with rules in force at the time the claims arose but since repealed governing exhaustion of remedies under internal grievance procedures.
Further complications arose from the possibility of duplicate claims, from arguments that claimants had mis-described their jobs, and dispute over the comparison of employees in non-teaching roles in community schools to employees in other council establishments. These issues were appealed from the initial tribunal determination, first to the Employment Appeal Tribunal EAT in , and then to the Court of Appeal in Meanwhile, separate appeals were being heard on procedural issues arising from the constitution of the initial tribunal hearing which dealt with the GMF defence and eventually on the validity of that defence itself.
In tandem with this litigation, the council was also facing claims in the regular courts the County and High Courts from claimants who were out of time to bring their cases before an employment tribunal. These claims were eventually appealed to the Supreme Court, which ruled in that the normal six-year limitation period for breach of contract actions would apply to claims brought before the County or High Court, thereby circumventing the six-month time limit for claims before tribunals the Abdulla case.
In an attempt to avoid future equal pay liabilities, the council then sought to change the terms and conditions of its entire workforce. Employees who did not accept the new, non-discriminatory terms were dismissed and re-engaged. The claims by the unions were resolved while the majority of the unfair dismissal claims were withdrawn; the remaining claims were lost by the individuals with costs awarded against them.
Between 20 December and 12 January , approximately refuse loaders undertook discontinuous industrial action involving half-day strikes and working to rule, at least in part by way of a response to the ending of bonuses. The first claims against Sunderland City Council were lodged in By the end of the litigation there were around 1, claimants, although the precise numbers fluctuated throughout.
The first generic claim form was settled in and the first substantive tribunal hearings commenced in , on the issue of whether the council had a GMF defence. During there were also three separate EAT hearings dealing with more procedural aspects of the litigation in addition to an appeal on the GMF ruling, which was then further appealed to the Court of Appeal the Brennan case.