Appendix
Letter from HM Prison Service to the Clerk of the Committee
Proposal for the Regulatory Reform (Prison Officers)
(Industrial Action) Order 2004: response to request for information
Q 1 Section 127 seems to constitute a "burden"
on trade unions which represent Prison Officers because it affects
those unions in the carrying on of their activities. But could
the Department explain how that section is a "burden"
on the "general public at large" (Explanatory Document
page 8? In the carrying on of what activity are members of the
public affected?
A1 The Prison Service recognises that where a
burden is removed or reduced under the Regulatory Reform Act,
the burden must affect persons in the carrying on of an activity.
It agrees that while the repeal of section 127 clearly affects
the carrying on of trade union activities, it is difficult to
see how if affects any activity of the public at large ( although
the prohibition in section 127 is directed at "any person"
and could
include, for example, a union official not employed directly by
HM Prison Service).
Q 2 The Department claims that with legally
enforceable collective agreements in place, section 127 is no
longer necessary. How does the government propose to deal with
the possibility of the legally binding voluntary agreements being
terminated by one of the parties? Would the Department seek to
re-apply section 127 of the 1994 Act?
A2 On 25th January 2004 the POA decided
to give the requisite 12 months' notice of termination of the
Voluntary Agreement as there were one or two aspects of the dispute
resolutions procedure contained in the legally binding collective
agreement - or Voluntary Agreement (VA) as it was referred to
- that they wished to re-negotiate.
Representatives from HM Prison Service and the POA
successfully negotiated a new legally binding collective agreement
called the Joint Industrial Relations Procedural Agreement (JIRPA).
The POA has undertaken that it will not induce, authorise or support
any form of industrial action by any of its members employed in
the Prison Service relating to a dispute concerning any matter,
whether covered by the agreement or otherwise.
The JIRPA was ratified by the membership and signed
by Colin Moses (POA National Chair) and Phil Wheatley (Director
General HM Prison Service) on 11 November 2004 and will replace
the VA in January 2005.
If this set of circumstances happened again the Prison
Service might decide to return to Parliament to re-enact by primary
legislation the provisions of section 127 which are now being
removed although at the present time this is thought to be unlikely.
Q 3 In Scotland, of the three unions that
are party to the legally binding voluntary agreement, only the
POA(S) has agreed not to induce etc. industrial action (clause
4.10). To the extent that the scope of the legally binding voluntary
agreements is therefore much narrower than that of Section 127,
does the Department accept that the Scottish agreement provides
less protection than that currently provided by Section 127.
A3 Within Scotland it should be noted that all
of the recognised trade unions have signed a comprehensive Partnership
Agreement with SPS Management which commits the trade unions and
management to work together to promote the success of the Scottish
Prison Service in a competitive environment. This Agreement has
been very successful. It has if anything strengthened further
the commitment exemplified within the Voluntary Agreement that
industrial action is considered as being antipathetic to the effective
pursuance of the interests of the recognised trade unions' members
within the SPS. It should also be noted that the Voluntary Agreement
in Scotland takes an all-encompassing approach to the regulation
of employment relations and dispute resolution. In that respect
it is wider than s127 as it covers all staff groups.
With regard to the non-POA signatories to the Voluntary
Agreement, these trade unions are, through the Voluntary Agreement,
committed to resolving issues through the industrial relations
procedural agreement. The use of ACAS conciliation and binding
independent arbitration provides inherent advantages to them as
compared with the alternative of balloting their membership for
industrial action. This is because with regard to presentation
to their members, they can point to a situation where a dispute
has been resolved fairly without the requirement to call for industrial
action. Industrial action, with loss of pay and other risks,
is generally not a popular choice among trade union members when
there is an appropriate alternative such as the Voluntary Agreement.
With regard to the outcomes that may flow from use of the Voluntary
Agreement, we are advised that in the 30 or so years the ACAS
Independent Arbitration system has been running in the UK, only
one Arbiter's Award has been rejected and that by an employer.
The breach of an ACAS Arbiter's Award by any trade union would
immediately isolate it within the Trade Union community as ACAS's
role in dispute resolution carries with it the highest regard
within the trade union movement.
With regard to staff groups, the legally binding
coverage of the Voluntary Agreement in Scotland is the same as
s127 - with the exception of senior operational managers who are
represented by the Public & Commercial Services Union (PCS).
In conducting a risk assessment with regard to the question of
their inclusion or exclusion from the legally binding aspect of
the Voluntary Agreement, it was felt by SPS Management that the
vocational ethos and numbers associated with this group of staff
meant that they were highly unlikely to take industrial action.
Coverage would have also led to practical difficulties for PCS
in signing the voluntary agreement as they represent a number
of other non-operational staff groups within SPS, none of whom
are covered by s127. It is worthy of note that in the recent
civil service-wide industrial action called by the PCS UK membership,
no senior manager took part.
Q 4 In Scotland, what protection would be
available in the event that staff leave the union that is party
to a legally binding agreement and join unions that are not party
to such agreements?
The position in Scotland is no different to that
in England and Wales in this respect. The POA(s) are the trade
union formally recognised by SPS to represent prison officer staff
through collective bargaining. That is mainly because they are
the Trade Union that can count the great majority of prison officers
employed by SPS within their membership. It follows that if prison
officers to chose to be members of another trade union which does
not have formal recognition rights (and with significantly less
bargaining power due to the small proportion of staff who are
members), they would effectively give up their voice in the collective
bargaining process.
It is worth pointing out that such a possibility
is not something that is restricted to a development in the future
as is suggested by the question, but exists now. In Scotland,
there is currently at least one other Trade Union that a small
number of Prison Officer staff are members of. That Trade Union
is not recognised by SPS and is not a signatory to the Voluntary
Agreement.
The threat of industrial action by a smaller trade
union (even if it managed to meet all of the statutory requirements
and tests for it to be regarded as lawful) is not seen as constituting
a significant threat to the delivery of services within SPS.
That is because the small proportion of staff involved in any
such action could be relatively easily backfilled from (the much
larger) staff group who are not members of the trade union concerned.
It is, of course, recognised that the process of
employment relations is dynamic and that the environment in which
they are conducted is subject to change. In order to support
the current climate of positive relations that are being underlined
by developments in partnership working, it is necessary to alter
the supporting framework to reflect the improvements that have
been made. In this case it means replacing a statutory prohibition
on industrial action with a voluntary agreement not to undertake
industrial action. Not to do so would be detrimental to the positive
developments that have taken place.
It seems unlikely in the present employment relations
environment that significantly large numbers of POA members would
choose to leave the POA to become members of another Trade Union.
However, in theory it is possible. In such a theoretical event,
where the collective bargaining power of the POA was significantly
diminished in favour of another Trade Union, the formal recognition
of the POA as the trade union with recognition rights for the
prison officer staff group would likely fall to be reviewed.
Any proposal to formally recognise another trade union as representing
Prison Officers (jointly or singly) would of course at that time
address a wide range of issues including the agreement of a dispute
resolution process and a voluntary arrangement with regard to
the avoidance of industrial action as part of any formal recognition
proposals.
Q 5 In its response, the Prison Service Union
(PSU) criticises the Government's decision not to dis-apply section
127 in relation to private companies supplying custodial services
on grounds, amongst others, that its retention would provide a
disincentive for such companies to recognise independent trades
unions. In response to this point the Government states that it
is its intention to dis-apply section 127 in its entirety, but
only where equivalent protection is available following dis-application.
What, if anything, is the Government doing to encourage unions
and companies to reach such voluntary agreements?
A5 The Government has informed each of the private
sector contractors who provide custodial places of its expectation
that they will enter into legally binding collective agreements
with their respective recognised Trade Unions/ Staff Associations.
Consultations with each individual contractor continues
with regard to what is required to demonstrate that effective
steps have been taken to allow section 127 to be dis-applied in
each case. These discussions are at different stages with each
contractor and are currently ongoing.
Q 6 Explain the exclusion of article 3(2)
given the repeal of the definition of "Prison Officer"
by regulations 3(1) and 24(e) of the Disability Discrimination
Act 1995 (Amendment) Regulations 2003 (S.I. 2003/1673)
The Prison Service were unaware of the repeal in
question which had come into force only 18 days before the proposals
were laid before Parliament. They regret this oversight and undertake
that the draft order will be amended before it is laid before
Parliament under section 4 of the Regulatory Reform Act 2001.
Q 7 Please confirm that the Proposal is compatible
with EU legislation.
A7 The Prison Service can confirm that in its
view the Proposal is compatible with EU legislation.
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