Reps’ time off to do their union work is under attack
Facility time gives union reps the time off to advise members, give members formal representation in grievance and disciplinary hearings and to negotiate with employers or managers over terms and conditions.
However, the coalition government has mounted attacks in both central and local government on the hard won right of facility time for union reps. They have been aided and abetted in this by right wing pressure groups, such as the Taxpayers Alliance, and in Parliament by the Trade Union Reform Campaign, chaired by the Tory MP Aidan Burley.
The government in its ideological attack on facility time has chosen to ignore the benefits that facility time brings
A report by NatCen Social Research, The value of facility time, was commissioned by public services union UNISON to examine the value and challenges arising from the use of works’ time by trade union reps in workplaces where UNISON organises. It was based on evidence gathered from both union reps and employers.
The report identified some key benefits arising from the use of facility time, including providing a “ready-made structure for meaningful consultation and negotiation”. This saves organisations money and reassures union members that “their views are valued in decision making”.
Another identified benefit of facility time is that it provides for earlier intervention in relation to complaints, grievances and disciplinaries, preventing them from escalating. This saves “organisations and taxpayers’ money by reducing the impact on staff time and possible legal costs”.
Survey of union reps
Workplace Report has carried out a survey of time off for union duties, activities and facilities provided in both public sector and private sector workplaces. Responses were received from 206 union negotiators reporting on arrangements for more than 125,000 workers. There were 83 responses (40% of responses) from the private sector, 120 (58%) from the public sector (58%), with 3 from the voluntary sector.
• Three-quarters of 206 respondents have a written agreement on time off for union duties or activities, but a minority reported a difficulty in getting the time;
• just over two in five responses (43%) said they have at least one union rep on full facility time;
• three-quarters said their agreement covered time off for training reps;
• almost a third (31%) — the vast majority in the public sector — said yes to the question as to whether any attempt had been made by either the employer or the union to change the arrangements in the last year or two; and
• two-thirds said their agreement covered access to new staff for recruitment purposes.
The majority of respondents have a written agreement on time off for union duties/activities in the workplace: 155 out of the 206 (75%).
Interestingly, of the 155 who had a written time-off agreement, 26 (17%) said that it was not what actually happens in practice. Respondents referred to shop stewards having difficulty in obtaining time off even though their agreement provides for it, and one university respondent said that “pressure is put on staff not to miss teaching”.
At NHS Highland, the situation is that “facility time is more difficult to obtain than the agreement implies; reps don’t always ask formally for time — just assume refusal.” At Rochdale Metropolitan Borough Council, “managers are unsure of the agreement. Stewards don’t always use the time they could have.” A respondent at a hospital reported that their reps in clinical areas were often refused time off because of the needs of the service, while those in admin areas were released, but as their work was not covered the reps often declined union duties to avoid creating a backlog of work.
At the College of West Anglia it is reported that a “dedicated union room has recently been changed at one campus (with loss of computer and telephone) and room is shared at another campus”.
A County Council rep reported that a lack of cover for union reps meant reps faced a backlog of work after attending to union duties. And at London Underground, “Business needs dictate release for facility time. No time for “activities” is given.”
It was reported from a college that “some managers are “unable” to time-table remission time for reps — they keep “promising” to arrange it”.
Reps were asked about the size of their workplace. Out of 205 responses, 103 (50%) have 1,000 or more employees in the workplace, 30 (15%) have between 500 and 999 employees, 49 (24%) had between 200 and 499 employees, 22 (11%) have between 50 and 100 employees and just one had between one and 49 employees.
In the majority of cases — 129 or 63% — there was more than one recognised union in the workplace, while for the remainder — 77 responses or 37% — there was only one recognised union. And of those that responded, 21 (17%) said there was no joint union negotiating structure in the workplace, but 106 (83%) said there was such a structure.
Some 88 of the replies (43%) said they have at least one union rep on full facility time. A breakdown shows that a higher proportion of public sector workplaces had more full-time reps than did the private sector. Of the 88 replies, 37 were in the private sector, (45%) but there were 50 in the public sector (57%), with one in the voluntary sector.
Reponses on how many reps can carry out union activities/duties in work time ranged from zero to 200; obviously numbers are related to the size of the workplace.
The most common types of rep covered by the paid time off provision were shop stewards, safety reps and learning reps but some agreements extend the coverage to equality reps, green/environmental reps and pensions reps.
Most of the agreements — 122 or 59% — did not provide a specific amount of paid time off for union duties. Of those that did have specified amounts of time it was usually expressed either as a number of hours or a percentage of total working hours.
At Selby College the provision is two hours a week per 30 members, while one London Borough has a formula of one full-time equivalent per one thousand members. Many of the agreements provide a total amount of time off to be shared between the various union reps/officers. This arrangement may be specified in the agreement or, more commonly, the distribution of the time is left for the union reps to decide.
At Canterbury City Council, stewards are allowed 1.5 hours to attend monthly branch executive meetings, all members get up to 1.5 hours for a branch meeting or annual general meeting (AGM) with a maximum of two per year. In addition, there is time for stewards to meet with councillors (1.5 hours “perhaps four times a year x seven stewards max”), plus time for dealing with restructures and other matters giving an overall total of around 200 hours per year.
At Mendip District Council the agreement provides for the UNISON branch secretary to receive 50% facility time, with three other branch officers getting half a day a month then a pool of 18.5 hours per week to be divided between other committee members.
Time off for training
Most of the respondents — 154 or 75% — indicated that they had an agreement or understanding covering time off for training for union reps.
In some cases this provision specifies the amount of time allowed for such training. Responses from the private sector included Legal & General Assurance, where the policy allows up to 10 days for training each year, and at Aviva the allowance is 12 days in the first year and five days a year thereafter. The PCS reps at Balfour Beatty are allowed up to 10 days over a two-year period, at Siemens Industrial Turbomachinery two weeks a year is allowed, while at Chesapeake Corporation up to 100 days a year is allowed for training to be distributed by the union and above that management agreement is required,
Public sector responses included: Shrewsbury College, where up to 200 hours a year is allowed which is divided at the discretion of the union, while another college allows 658 hours a year again divided at the discretion of the union. At the Ministry of Defence, the allowance for training is 10 days in the first year and five days a year thereafter. Responses from local government included Salford City Council and the London Borough of Waltham Forest which each allow 10 days a year.
The one response from the voluntary sector was from the RSPCA animal charity where five days a year is allowed.
Respondents were asked if shift workers were compensated for union duties undertaken outside working hours. Of the responses 74 said that this was not applicable as no shift workers were employed. Of the remainder 68 (52%) said that they were, but 62 (48%) said they were not.
Recent changes to arrangements
An overwhelming majority (142 or 69%) said no, while 64 (31%) said yes as to whether any attempt had been made by either the employer or the union to change the arrangements in the last year or two.
Of the 64 who said yes, the changes included moves to actually conclude a facilities agreement at Orkney Islands Council. The respondent from the London Borough of Waltham Forest told Workplace Report: “Facility time has been drastically reduced. We used to have 3.5 fulltime equivalent posts. Time taken as and when necessary, it used to be much more flexible and management approval was nearly always automatic. Now time off is a contentious issue.”
Other attacks by management in local government include, Norfolk County Council has cut time off for union conferences, a London Borough reduced time off from 7.5 posts to 6, and St Helens Council is “currently attempting to reduce facility time by 50%. The council aims to achieve this by removing one of the two full time convenors”.
The union side at Cambridgeshire County Council said they had lost “50% of our facility time a few years ago which meant the loss of one [full-time] F/T staff. This left us with one F/T position. This is currently under scrutiny as further savings need to be made to the facility budget. This budget includes UNISON, the GMB and six teaching unions”.
There was a depressing response from the rep at North Somerset Council: “In April 2012, we had our facility time cut from 9 days to 7 days and were also asked to pay rent for the office the council provide for us. Our facility agreement is being reviewed annually as the council think because there are less and less staff there is less and less need for TU reps.”
And a County Council “reduced paid time off for branch officers by two days per week last year and are proposing a further two day cut; this is an overall reduction in two years from 18 days to 14 with no officer having more than 80% of their time on TU duties.”
In the education sector, the response from the rep at Cornwall College was that “remission was previously given 100% from teaching/contact time. Now it is given 50% from contact & 50% from ‘admin’ time’”.
Meanwhile, at Carshalton College, the rep said: “We have been trying to renegotiate the facilities agreement for the last four years but the management keep avoiding or delaying. The latest management position was to keep the original agreement made in 1992 which is very inadequate both in terms of facilities and remission from teaching.”
A union rep from London Underground said: “We had a long and painful review of the machinery during the reintegration of staff from the private sector to the public. The private sector employees had kept all their rights on transferring out of the public sector and improved some as well. On transfer back into the public sector we found there had been considerable erosion and management did not recognise our agreements, and tried to equalise us with the poorer arrangements in place for the public sector reps. Employee Relations reneged on promises to make some concessions and imposed their agenda unilaterally.”
In central government, a rep from the Ministry of Defence reported: “Implementation of the Cabinet Office protocols to restrict Trade Union facilities. Individual business units attempting to restrict representatives to conducting duties within their areas.” At the Food Standards Agency quango, management “tried to annually review a three year agreement after a year of it being in place”.
In the voluntary sector, the rep at the RSPCA said the “whole national agreement is under review”.
The one response of note from the private sector came from the rep at Yellow Buses who reported a move to change “trade union day” to a different day of the week.
Recruitment is an important aspect of a reps’ work and facility time agreements can cover procedures for new staff, such as informing them about the union, management providing the union with details of new appointments, or the union having a presence at inductions to put their case to potential new members. Two-thirds said their agreement covered this issue, while the remainder said it did not.
Of the 135 whose agreement covered new staff, agreement included that at the University of Chichester where “we get a list of leavers and joiners each month. We are invited to induction and usually do a short presentation”. At South Wales Fire and Rescue Service: “The union is informed of all new appointments and invited to an inductions session during their first few days.”
Access to facilities at work for reps
The Workplace Report survey asked about the sort of facilities that were provided for union reps by the employer, if any.
Almost three-quarters of the responses (74%) said they had either a union office or other dedicated space for union work. The remaining 26% of respondents just had to make do.
Only a small proportion of employers (11%) provided clerical or secretarial assistance to unions in the workplace.
However, just 18 out of 205 respondents (9%) said that their union was charged for use of facilities such as telephones, fax machines, photocopiers or office rent.
Both the TUC and the STUC are mounting campaigns in defence of facility time, but with one very clear difference. The TUC campaign is largely to defend facility time from attacks by the coalition government, while the STUC campaign is a joint campaign with the Scottish government.
Alex Salmond, Scotland’s First Minister, told the STUC’s Annual Congress: “Scotland’s trade unions fulfil a very important role and we value our relationship with them very highly. We know how much their work matters and we believe it makes a big difference.”
Many unions have been conducting their own defence campaigns including the civil service union PCS. The union conducted a survey and more than 1,600 people responded. The PCS survey found that less than one in 14 (7%) of their respondents had 100% facility time.
One of the major concerns raised by the survey was the framework issued by the Cabinet Office in November 2012. The Cabinet Office wants a “change of culture” towards robust management of facility time and “rigorous monitoring” of time spent. It has presented a guide figure for overall spending on facility time of 0.1% of the paybill in the first year, which includes time spent by safety reps and union learning reps.
The government terminated national talks on the issue and talks are now taking place within departments. The Workplace Report survey responses show clearly what the government in Westminster thinks of unions, with repeated references to attacks on unions by way of the “Cabinet Office protocols”.
In local government, the Department for Communities and Local Government produced a report in March, Taxpayer funding of trade unions; delivering sensible savings in local government, that poses further threats to facility time, although its is only “advice” and has no legal force. The document mirrors to a certain extent the instructions given by the Cabinet Office to civil service organisations late last year.
The tone of this document is set in the foreword by communities secretary Eric Pickles which contains the unsubstantiated slur that “for too long in the public sector, trade unions have received taxpayer funding that is poor value for money”.
However, Pickles goes further than the central government attacks. He does this by urging councils to charge unions for providing “check-off” facilities — under which employers deduct union subscriptions from members’ pay and pass them on to the union — or to terminate such arrangements.
Pickles also attempts to obstruct councillors who have received union support by suggesting they may be barred from taking part in council business relating to that union. As well as suggesting reductions in facility time, Pickles also calls for restrictions on the use of office facilities by unions.
In June, the Institute of Employment Rights publishes a timely report, The political attack on workplace representation – a legal response by Alan Bogg and Keith Ewing. They examine the nature of the attacks on unions, focusing on the victimisation of trade unionists by employers and on government proposals to restrict workplace facilities for union representatives.
Time-off and facilities for union reps
Under section 168 of the 1992 Trade Union and Labour Relations (Consolidation) Act (TULRCA ), union reps, including shop stewards, staff reps and branch secretaries of recognised unions, have the right to time off with pay (based on average hourly earnings) to carry out trade union duties.
Accompanying the legislation, there is the 2010 Acas Code of Practice, Time off for trade union duties and activities. This says that “subject to the recognition or other agreement, trade union representatives should be allowed to take reasonable time off for duties concerned with negotiations or, where their employer has agreed, for duties concerned with other functions related to or connected with the subjects of collective bargaining”.
The Code of Practice includes a long list of subjects that may be connected with collective bargaining. The subjects include terms and conditions, such as pay, hours of work, holidays and holiday pay, sick pay arrangements, pensions, learning and training, equality and diversity, notice periods, the working environment and operation of digital equipment and other machinery.
Further areas include recruitment and selection policies, human resource planning, redundancy and dismissal arrangements, job grading, job evaluation, job descriptions, flexible working practices, and work-life balance.
Matters of discipline may also be covered and this may include disciplinary procedures, arrangements for representing or accompanying employees at internal interviews, and arrangements for appearing on behalf of trade union members, or as witnesses, before agreed outside appeal bodies or employment tribunals. Duties may also include representational arrangements and any union involvement in the induction of new workers.
The Code also refers to facilities for trade union reps and states that issues could include accommodation, equipment, and the provision of the names of new workers to the union. In relation to other procedures which could be covered the Code refers to collective bargaining at the employer and/or multi-employer level, grievance procedures, joint consultation, communicating with members, and communicating with other union reps and union full-time officers in connection with collective bargaining.
Union learning representatives also have the right to a reasonable amount of paid time off to carry out their duties. The section of the Code on Union Learning Representatives sets out that ULRs must be allowed time off for analysing learning or training needs, providing information and advice about learning or training matters, arranging learning or training, promoting the value of learning or training, consulting the employer about carrying on any such activities, preparation to carry out any of the above activities, and undergoing relevant training.
The Code also refers to the provisions of the Safety Representatives and Safety Committees Regulations 1977 which require employers to allow heath and safety reps paid time off.
While there is no statutory requirement to pay for time off where the duty is carried out when the union rep would not otherwise have been at work, the Code notes that if the union rep works flexible hours, such as a night shift, and has to perform union duties during normal hours then they are entitled to be paid.