Latest From Napo HQ 3

This is the second of three guidance documents referred to in the e-mail from Napo HQ yesterday and received this morning at 08:37:-

 NAPO ADVICE TO BRANCHES ON REGISTERING LOCAL JNC DISPUTES                                       

On Friday, 22^nd November NOMS Chief Executive Michael Spurr wrote to all Trusts about the validity of a (local) trade dispute and the potential refusal on the part of local union branches to engage in consultations. Clearly the MoJ agenda, under instruction from the Secretary of State, is to drive ahead with the implementation of the assignment process. Equally clearly, our joint Union position is to seek to achieve the exact opposite. Thus there is unlikely to be much agreement between us.

The Chief Executives letter states: “Having reviewed these documents and taken legal advice it is absolutely clear that the local disputes procedure remit is to consider any failure to agree on a matter subject to negotiation where a failure is registered in the JNCC.” It goes on later – “If a dispute is registered against your Trust, our position is that you have no choice but to reject it on the ground that it exceeds the remit of the dispute procedure which can only apply to matters which are subject to negotiation. We therefore do not consider that it is open to you to agree to institute the local dispute procedure.”

Napo refutes these assertions and in support of this position, we make the following points which you may wish to employ locally in your communications with your local employer.

1. In the Trade Union and Labour Relations (Consolidation) Act 1992 at s244 there is a definition of a “trade dispute”s.244 (1) In this Part a “trade dispute” means a dispute between workers and their employer which relates wholly or mainly to one or more of the following— 

(a) terms and conditions of employment, or the physical conditions in which any workers are required to work; 

(b) N/A 

(c) allocation of work or the duties of employment between workers or groups of workers;

 (d) N/A

 (e) N/A

 (f) N/A

(g) machinery for negotiation or consultation, and other procedures, relating to any of the above matters, including the recognition by employers or employers’ associations of the right of a trade union to represent workers in such negotiation or consultation or in the carrying out of such procedures.

 (2) A dispute between a Minister of the Crown and any workers shall, notwithstanding that he is not the employer of those workers, be treated as a dispute between those workers and their employer if the dispute relates to matters which— 

(a) have been referred for consideration by a joint body on which, by virtue of provision made by or under any enactment, he is represented, or 

(b) cannot be settled without him exercising a power conferred on him by or under an enactment.It is Napo’s view that current local disputes satisfy these definitions – at Section 244.1 and that Section 244.2 (a) & (b) pertains.

2. Branches will have to refer to their own local JNCC constitutions as they may differ from the national NNC model constitution as found in Section B of the NNC Handbook. Thus the following advice may need to be tailored to reflect local constitutions.

The Terms of Reference in the NNC model constitution are as follows: 

(i) To consult on any matters concerning existing practices or proposed changes which affect the employees of the . . . . . . . . . . . . . . . . . . . . Probation Board. [Trust]

(ii) To enter into negotiations in respect of those specific matters relating to the terms and conditions of employment of staff employed by the . . . . . . . . . . . . . . . . . . . . Probation Board. [Trust].  These are:

• conditions of service specifically left to the discretion of the probation board from the NNC as matters for local agreement;

`• procedure agreements including Discipline, Grievance, Capability, Collective Disputes, Facilities for Trade Union Officials and Representatives, Information Technology and any other local agreements and variations to the Trade Union Recognition Agreement itself;

• issues of collective concern involving matters of health and safety which are dealt with under the Safety Representatives and Safety Committees Regulations or are referred by the local Safety Committee;

• issues of collective concern involving equal opportunities;

• matters referred to in Statute, Circulars, and National Probation Directorate / Government Department correspondence which specifically include Trade Union involvement;

• Other matters upon which all parties agree it would be appropriate and helpful to reach agreement

It is accepted that issues which may be subject to dispute must fall within the scope of (ii) above. Napo’s position is that they do for the following reasons:

 • issues of collective concern involving matters of health and safety which are dealt with under the Safety Representatives and Safety Committees Regulations or are referred by the local Safety Committee 

There can seldom have been, in the recent history of Probation, an exercise more likely to engender stress in the entire workforce (stress being an important H&S consideration). Moreover, what is being proposed is a fundamental change to the method of working - it could hardly be more fundamental, and as such it should have been the subject of a risk assessment under H&S Regulations.

• issues of collective concern involving equal opportunities;

What is being proposed (the split) clearly has equal opportunities issues attached to it.

• matters referred to in Statute, Circulars, and National Probation Directorate / Government Department correspondence which specifically include trade union involvement 

There can be little doubt that there should be and indeed is Trade Union involvement in these matters. We've just spent 3 months of intensive negotiations seeking to reach agreement over them nationally and then there is the requirement under COSOP for local consultation. The previous 28 day consultation is largely redundant since we are now operating to a different assignment model.

• Other matters upon which all parties agree it would be appropriate and helpful to reach agreement;

Napo was under the impression that everybody, including the MoJ agreed it would be helpful to reach agreement.

On the above basis, Napo maintains that matters under consideration fall within Section 4 (a) (ii) of the model LJNCC Constitution 

3. Health & Safety implications – Prior to implementation, it is Napo’s assertion that a risk assessment on the implications of the said implementation is required. It is likely that this should be prepared at a national level by the TR programme team but it will need to be shared locally with the unions by the employers with a view to addressing and minimising the risks to staff. 

4. Equality Impact -  Michael Spurr’s letter states: “ The letter (from Napo to its branches) also refers to an alleged failure to carry out an EIA.   As you are aware, a summary of the national level equality analysis undertaken by the Transforming Rehabilitation programme has been circulated to Trusts, with the intention of supporting Trusts to carry out local EIAs covering the implementation of the reforms.  Again this does not appear to fall within the remit of local JNC dispute procedures as it could only give rise to consultation rather than negotiation.   The concern raised in the letter is also premature as there is no indication that Trusts will not carry out EIA, indeed you have been encouraged to do so.  There is certainly no obligation to conduct these at a time scale directed or agreed with the unions, however  we would recommend that  the local EIA is completed as soon as is possible.”

Branches should insist that this work is undertaken, published and consulted upon in accordance with the Framework as issued, prior to implementation. We refute the assertion above with regard to time scale. All such analyses should be conducted in advance of any implementation so as to allow proper consideration of highlighted issues so that proper adjustment may be made.  Since this does fall within the remit of local JNCs (“issues of collective concern involving equal opportunities”), it is not just a matter for consultation.

5. ‘Measures’ issues: - Appendix A to the National Framework on Staff Transfer & Protections gives guidance on the handling of ‘Measures’. Whilst most of these are indeed matters for consultation only, there are elements contained therein which will require negotiation because they relate to terms and conditions. This fact further substantiates the assertion that there is a basis for dispute around issues for negotiation.

Michael Spurr’s letter also contains the following advice to trusts on the subject of local consultation:

“Refusal to Engage in Local Consultations In relation to Trade Unions not co-operating with local consultations, if you as a Trust invite local consultation and invite dialogue and the unions don’t engage this doesn’t mean that there hasn’t been consultation on the part of the Trust.   Whilst you must continue to make all efforts to engage in meaningful consultation the responsibility to respond to the offer falls to Trades Unions and staff. Whilst it would be a great shame if local branch officials have been instructed not to be involved in local consultation such action on their part does not mean that you have to delay implementation. “

Branches will need to be mindful of this and consider their engagement carefully so as not to disadvantage our members. Branches should send two representatives to such consultation and report back to members. 

  

Tom Rendon                          Ian Lawrence

National Chair                        General Secretary

26^th November 2013

PS - The third document 'How to construct your individual grievance against assignment - Napo advice' can be found on the Napo website - along with all the others.