getting involved, getting organised, protecting our future

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Getting Involved, Getting Organised, Protecting Our Future

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Page 1: Getting Involved, Getting Organised, Protecting Our Future

Getting Involved, Getting Organised, Protecting Our Future

Page 2: Getting Involved, Getting Organised, Protecting Our Future

Commissioning

Moves to Procurement TUPE Post TUPE

Service& Needs Assessment

Service ReviewSIPSOptions AppraisalContract advertTender processContract evaluationContract award

TUPE consultationTUPE transfer

TUPE protectionTUPE challenges

TIME

No formal TU consultation rightsStatutory consultation rights

Statutory consultation rights – diminish over time

Page 3: Getting Involved, Getting Organised, Protecting Our Future

TUPE

TUPE consultationTUPE transfer

TIME

Statutory consultation rights

Page 4: Getting Involved, Getting Organised, Protecting Our Future

An organisation (or part of one) is transferred from one employer to another and retains its economic identity

Service provision change – an organisation engages a contractor to do work on its behalf, subsequent retenders to other contractors or brings the work back in house

Must be an organised group of employees doing the work that will transfer

Page 5: Getting Involved, Getting Organised, Protecting Our Future

Increasing examples of situations where TUPE does not apply

Let’s play TUPE or not TUPE

Page 6: Getting Involved, Getting Organised, Protecting Our Future

An NHS Trust outsources its catering function to private company X

120 staff formerly employed by the Trust transfer to Company X

The service provided to the Trust by Company X is broadly similar

TUPE or not TUPE?

TUPE

Page 7: Getting Involved, Getting Organised, Protecting Our Future

A Utility company retenders its meter reading contract The contract is awarded to Company X Company X announces that meter reading jobs will be

done on an individual franchise basis as this is its existing business model

The affected staff are told that TUPE will not apply and all will be made redundant

Company X offers re-employment, but the staff have to form individual franchise companies and will have to lease equipment (uniforms/vans/HHT’s etc) – they will be doing the SAME WORK as previously

TUPE or not TUPE?

Not TUPE

Page 8: Getting Involved, Getting Organised, Protecting Our Future

4 local authorities establish a Joint Venture company with Company X, where Company X is the major shareholder.

After 10 years the 4 authorities retender the work in 5 Frameworks The work being retendered covers all of the work carried out by the

JV and new additional work 3 of the Frameworks will be awarded to one supplier exclusively For the other 2 Frameworks

Work will be awarded to multiple suppliers, including the LA’s own workforce

each supplier will be guaranteed a minimum amount of work Work over the minimum specified will be awarded ad-hoc for the

duration of the contract

TUPE or not TUPE?

BOTH

Page 9: Getting Involved, Getting Organised, Protecting Our Future

Getting Organised

Page 10: Getting Involved, Getting Organised, Protecting Our Future
Page 11: Getting Involved, Getting Organised, Protecting Our Future
Page 12: Getting Involved, Getting Organised, Protecting Our Future

Key impacts of failing to deal with transfers effectively are:

▪ Member terms and conditions may be undermined (failure to deal with all TUPE and non TUPE issues

▪ Pensions not protected▪ Recognition, facilities and UNISON organisation

not developed for post transfer▪ Joint relationships and joint bargaining not

developed for post transfer▪ DOCAS arrangements not in place▪ Two Tier/Workforce Matters issues not addressed

Page 13: Getting Involved, Getting Organised, Protecting Our Future

Special Measures – notification from transferee (new employer) of changes it will make post transfer

Clarifies what is covered by TUPE & what isn’t

Critical

Page 14: Getting Involved, Getting Organised, Protecting Our Future

TUPE Measures proposed by Capita in respect of transferring Liberata employees.As required under the TUPE Regulations, I am writing to advise you of the proposedmeasures that will occur in connection with the transfer to Capita Business Services Limitedon the 5th J anuary 2009.Capita will transfer existing Liberata Limited terms and conditions of employment with theexception of:Employee Handbooks — All previous employee handbooks will be replaced by the CapitaEmployee Handbook, Your Guide to Capita', which will form the basis of employment withCapita Business Services Limited.Upon transfer, Capita policies/guidelines will be used in respect of:Policies and Procedures:• Disciplinary and Grievance procedures — These will be replaced by Capita'sDisciplinary and Grievance Procedures. Please refer to the employee handbook.• Employee Capability policy and procedure — Capita's arrangements will apply. Pleaserefer to the Disciplinary policy and Performance Improvement Plan.• Dignity at Work — This will be replaced by Capita's Anti-Harassment and Bullyingprocedures. Please refer to The Open Door policy for Grievance and Anti—Harassmentand Bullying sections of the handbook.• Performance Appraisal policy and procedure — Capita's Performance Framework willbe implemented. Please refer to Performance Management in the accompanyingHandbook. Current pay review arrangements will continue.• Absence and Attendance policy and procedures — Sickness pay entitlements willremain unchanged; however Capita's Absence Management procedures will be followed.• Equal Opportunity policy and procedure — Capita's Equal Opportunities and Diversitypolicy and procedure will be followed. Please refer to the Equal Opportunities and Diversitysection of the handbook.• Maternity, Adoption, Paternity and Parental Leave Procedures — Enhanced payentitlement will remain unchanged; however Capita's procedures will apply in relation toMaternity, Adoption, Paternity and Parental Leave.• Drugs, Alcohol and Substance Abuse policy and procedure — Capita's Alcohol andDrugs procedures will be followed. Please refer to the Health and Safety section of theaccompanying Handbook.• Expenses (subsistence) policy — Capita's policy and procedure will be followed, pleaserefer to Additional Information, Expenses and Travel sections of the handbook.

• Bereavement I Compassionate Leave — Capita's process and procedure will apply.• Dependants' Leave Policy and Procedure — Capita's Time of for Dependants procedurewill apply.• Leave for Religious Observance (as per Holiday policy) — Capita's approach will apply.• Health and Safety — Capita's policies and procedures will be followed, this includes theCapita provision for DSE eye tests and spectacles for DSE use.• Fraud policy and procedure — This will be replaced by Capita's policy, please see theSecurity and Confidentiality section of the handbook.• Whistleblowing policy and procedure — Capita's Whistleblowing policy will apply.• Flexible Working policy and procedure — Outside of all current arrangements that are inplace and are transferring, Capita's flexible working policy will replace the current Liberatapolicy and arrangements.• Data Protection policy and procedure — These will be replaced by Capita's policies.Please see the Security and Confidentiality and Data Protection sections of the staffhandbook.• Restriction of Activities — Staff transferring to Capita will be able to carry out any politicalactivities as any other citizen.• Professional and Academic Training policy/MBA policy and procedure — Capita'sTraining Framework "Impact" will replace the Training and Development opportunitiesoffered by Liberata. Capita policies in relation to study leave, membership of professionalbodies and qualification training will be applicable. Any existing arrangements that are inplace at the point of transfer will be honoured.• Bonus Schemes - Capita's approach to discretionary bonuses will apply post transfer• Car Scheme Policy — Those who currently have a company car or allowance will continueto have that entitlement. Car allowances will transfer at the current rate for a period ofthree years at which date they will be reviewed. Cars will be replaced on expiration of thelease. Capita's car policy will apply.n Mileage Rates — At the point of transfer, Capita's business mileage rates will be applied.For employees using their own car, currently, the first 10,000 business miles are paid at arate of 40p per mile, 25p per mile thereafter. Employees using their own cars for businessmileage must ensure that their cars are adequately insured for business (Class 2) andprivate use and are properly maintained and road-worthy at all times. For employeeseligible for a car/car allowance, Capita's business mileage rates will be applied, in linewith HMRC rates.n Recruitment and Selection policy and procedure — Capita's approach will apply.n Time off for Public Duties policy and procedure — Capita's approach will apply.• Smoking at Work policy and procedure — Capita's policy will apply.• Gifts — Capita's policy will apply.• Employee Introduction Bonus Scheme — Ongoing payment plans will continue. Nobonuses will be awarded for referrals post transfer.

Employment contract and Incorporation Issues

Example of a TUPE notification on measures etc

Page 15: Getting Involved, Getting Organised, Protecting Our Future

• Council Tax Deductions — Employees will be able to continue to pay their council tax viaCapita's payroll for the current council tax year. From the new tax year (April 09)employees will need to make alternative arrangements.• Season Ticket Loan policy — Capita's arrangements will apply.• Relocation — Capita's policy to apply• Retirement policy and procedure - Capita's procedures will be followed, please refer tothe Employee Handbook.• Dress Code — Capita's approach will apply, in line with what is required for the workplaceand the work undertaken. Employees must be clean, tidy and with good personal hygiene.Please refer to the Employee handbook.• Special Leave — Capita's policy will be followed. Please refer to the Working hours andleave sections of the handbook.• Mobile Telephone policy and procedure - Capita will provide those employees whorequire a mobile phone/internet access where there is a business need. Capita's PhonePolicy will apply.• Employee Assistance Programme — This scheme will not transfer and Capita'sapproach in line with the open door policy supported by occupational health servicesthrough Capita Health Solutions will apply. Any transferring employee currently using theexisting Employee Assistance Programme will be able to complete any counselling thatthey are undertaking up until March 2009.

Page 16: Getting Involved, Getting Organised, Protecting Our Future

For completeness, I outline below those terms and conditions that will transfer withoutchange:• Continuous Service• Annual Leave Entitlement• Salary• Salary Review Date• Salary Protection as a result of Job Evaluation• Grading structure• Outstanding pay awards• Hours of work• Mobility• Restrictive covenants• Notice periods• Probationary periods• Overtime• Market Forces supplements• Call out/Standby payments• Shifts and Shift pay• Sick Pay entitlement• Flexi-time• Current flexible working arrangements, including home working• Maternity and adoption leave entitlements and pay• Paternity leave entitlements and pay• Parental leave entitlements and pay• Redundancy payment provision will transfer• Life Assurance multiple of four times salary• Normal Retirement age• Private healthcare — contractual entitlement• Westfield health cash plan — current members will be able to continue to make deductionsvia payroll• Free vending/trolley service

Page 17: Getting Involved, Getting Organised, Protecting Our Future
Page 18: Getting Involved, Getting Organised, Protecting Our Future

Capita challenged the incremental pay progression & separate salary increase mechanism post transfer – NOT INCORPORATED INTO CONTRACTS OF EMPLOYMENT

Wanted to apply only performance related pay for progression – virtually impossible for staff to progress to top of grade

UNISON legal advice was bleak Incorporation of pay & grading into contracts in transferor pre-transfer was

unclear Minimal prospect of pursuing breach of contracts claims on that basis Transferee would have strong chance of successful ETO defence based on

unforeseen costs of a pay and grading scheme they did not expect to operate

Therefore, no realistic chance of a successful legal challenge for us A new pay & grading scheme based on PRP principles and

with lower salary max in each grade had to be negotiated with Capita

Page 19: Getting Involved, Getting Organised, Protecting Our Future
Page 20: Getting Involved, Getting Organised, Protecting Our Future

Post TUPE

TUPE protectionTUPE challenges

TIME

Statutory consultation rights – diminish over time

Page 21: Getting Involved, Getting Organised, Protecting Our Future

Increasing number of challenges to TUPE protection

How robust is TUPE protection?No matter how robust the legal

position is – our own TU organisation & strength is crucial

Page 22: Getting Involved, Getting Organised, Protecting Our Future

TUPE protects employee contractual T&C’s at point of transfer

There are NO time limits to protection Employer can change T&C’s after

transfer IF:▪ Economic/Technical/Organisational (ETO)

reason connected with the TUPE transfer (must involve changes to the whole workforce – job function, no’s)

▪ For a change unconnected with the transfer Strong case law that harmonisation of

terms and conditions is a breach of TUPE

Page 23: Getting Involved, Getting Organised, Protecting Our Future

Increasing examples of situations where TUPE protection is being challenged

Let’s play TUPE or not TUPE

Page 24: Getting Involved, Getting Organised, Protecting Our Future

A local authority transfers 60 staff from Children’s Services to Charity X under TUPE with all of their main contractual T&C’s protected

After 10 months Charity X announces its intention to move the TUPE staff onto its own, inferior pay and conditions

It argues: It is finding it difficult to administer different sets of pay

& conditions It is unfair to have some staff on better pay &

conditions doing the same job TUPE or NON TUPE?TUPE

Page 25: Getting Involved, Getting Organised, Protecting Our Future

Charity X holds multiple local authority & NHS contracts, employing staff on a range of different TUPE protections, as well as new starters on its own T&C’s

It announces proposals to move all staff – TUPE & non-TUPE onto a common set of new harmonised conditions – with dismissal & re-engagement for those that refuse

Its justifications are:▪ Impending insolvency due to the pass through of government austerity

cuts by local authorities & the NHS – the TUPE costs are the main costs▪ No other way in which to make cost reductions▪ Unfair to have different pay & conditions for people doing the same job –

hence the desire for harmonised terms & conditions UNISON has reviewed its accounts & accepts that it is facing

insolvency The TUPE staff are the main group of staff adversely affected TUPE or NON TUPE? NOT TUPE

Page 26: Getting Involved, Getting Organised, Protecting Our Future

TUPE is very valuable at protecting workers rights

BUT – it comes with limitations UNIONS MUST:

Maximise the legal protection it provides by engaging fully throughout the TUPE process

Build effective TU organisation to deal with TUPE challenges industrially as well as legally

Understand – “the die is already cast” when formal TUPE consultation starts

SO………… back to the time-line

Page 27: Getting Involved, Getting Organised, Protecting Our Future

Pre-Procurement

Moves to Procurement

Needs Assessment

Service ReviewSIPSOptions AppraisalContract advertTender processContract evaluationContract award

TIME

No formal TU consultation rights

Page 28: Getting Involved, Getting Organised, Protecting Our Future

No formal consultation rights – Major problem Decisions here shape TUPE/Non-TUPE & most

of the post transfer employment landscape Unions must organise/lobby to occupy this

territory Difficult – but not impossible – we did it with:

TUPE 2006 to secure rights above the Acquired Rights Directive

Secondment/retention of employment model (ROE) TUPE Plus agreements Cabinet Office statement on non TUPE public

transfers

Page 29: Getting Involved, Getting Organised, Protecting Our Future

The future looks bleak Government is currently consulting on

changes to TUPE under its “Red Tape Challenge”.

Gov view that UK TUPE regulations “Gold Plate” the EU Acquired Rights Directive” and act as barrier to business.

Real purpose is: to encourage wider and faster public sector

outsourcing to facilitate reductions in labour costs post

transfer

Page 30: Getting Involved, Getting Organised, Protecting Our Future

This quote from the BIS consultation document is revealing:

“It can be very hard when outsourcing a service for a transferee to introduce efficiencies and operate more cheaply than the transferor because the regulations act as a barrier to reducing the size of the workforce or the transferred workers’ pay levels.” “It can be difficult to harmonise the terms and conditions of the newly acquired workforce with the transferee’s existing workforce.“

Dismissals

Pay & conditions cuts

Page 31: Getting Involved, Getting Organised, Protecting Our Future

Service Provision changes Repealing the 2006 TUPE provision which

includes most service provision changes within the scope of the regulations

Will exclude many contracting out transfers from TUPE – opens public sector to wide scale outsourcing with no TUPE protection

Will bring greater legal uncertainty to whether TUPE applies – pre 2006 multi-factoral test

Will politicise outsourcing further and generate industrial relations disputes

Great uncertainty for staff caught up in outsourcing

Page 32: Getting Involved, Getting Organised, Protecting Our Future

Loosening restrictions on changes to terms and conditions protection against dismissal

Economic, Technical or Organisational issues Bring work relocation into scope –

will allow employers to move work to new locations without triggering unfair dismissal TUPE protection

Page 33: Getting Involved, Getting Organised, Protecting Our Future

Post transfer harmonisation of terms and conditions To enable transferee to put transferred staff

on its own employees T&C’s Prime purpose is to facilitate reduction in

labour costs post transfer Likely to mean cuts in pay and conditions for

transferred staff Could be breach of Acquired Rights Directive Alemmo Herron v Parkwood ECJ decision will

be important – static or dynamic TUPE link

Page 34: Getting Involved, Getting Organised, Protecting Our Future

TUPE is a valuable employment protection mechanism

BUT – increasing challenges to the mechanism & the protection it provides

Trade Unions must engage fully in TUPE issues – vital to ensure transferring staff are as fully protected as possible

Trade Unions will need to build more effective organisation for industrial responses to respond to TUPE deficiencies and proposed changes

Trade Unions must organise/campaign/lobby against weakening of TUPE AND for formal TU involvement in early stages of procurement & commissioning under a future government

Page 35: Getting Involved, Getting Organised, Protecting Our Future

Available from

UNISON Bargaining Support or download

from UNISON web

ALSOTUPE branch

trainingFrom LAOS