Tuesday, 23 October 2012

Bus Drivers Update

The bus drivers' dispute is 'in the process of being settled'. That is what Jersey's Transport Minister has told the States today. That's as the Unite Union in the UK makes a scathing statement on its website about the row. Questioned about the dispute over the transfer of the Connex staff to the new bus operator in the Assembly  earlier, Deputy Kevin Lewis said that a mediation agreement has been reached and that it is confidential to the parties involved.   He said progress is being made.

Meanwhile, Unite has said TTS needs to 'end its attack on bus drivers' pay' to resolve the dispute, saying staff are being forced to sign contracts slashing their pay by up to £12,000 a year - or face the sack. It says if the employers accept their 'exploiting morally bankrupt legislation' Unite 'can help broker an acceptable settlement'. (1)

The Unite Union is keen to show up the lack of any TUPE  -Transfer of Undertakings (Protection of Employment - legislation, and in its full statement, it notes:

"Unite has offered to help broker a deal between the bus drivers who have taken unofficial action. Unlike other parts of the British Isles, Jersey does not offer legal protection to workers' terms and conditions who are being transferred to a new employer. The employer's conduct in this dispute has been morally wrong, it has allowed loyal staff to have their pay slashed while the Jersey government has continued to drag its feet on introducing TUPE legislation in line with the rest of the UK." (2)

It's worth noting that Deputy Southern proposed TUPE style legislation earlier this year, and comments were given by the States Employment Board on 9th July 2012. These range from the problems with the timetable being accelerated and pushing other items out of States legislation such as the discrimination law, to a discussion as to whether the whole concept of TUPE was viable for Jersey.

"The concept of a transfer on the same terms and conditions of employment may be challenging in practice. 'Same' as in the context of the ARD does mean the same 'i.e. not substantially similar or comparable in the aggregate'. Accordingly, compliance with UK TUPE for example, or the detail of legislation implied in Deputy Southern's proposition, will be obliged to replicate each and every benefit provided by the transferring company before the transfer (pensions excluded by UK TUPE and ARD) can be effected. This may be extremely costly, difficult and undesirable in practice to achieve given differing employment practices in organisations." (3)

It is also worth noting that the the Employment Forum on 21 February 2007 also had looked at the matter of business transfer and noted that:

"Since their introduction in the UK, the TUPE Regulations have been the cause of some of the most difficult and intractable employment law problems, which have mainly focussed on whether a transfer has actually occurred, who should be transferred and changing terms and conditions." (4)

But the same forum also recommends the following procedures:

"An employer who is transferring his business to a new employer must provide a specified set of information, listed below, at least 2 weeks before the transfer, to help the new employer to understand the inherited rights, duties and obligations in relation to those employees who will be transferred" (4)

This does not appear to be have happened between Connex and CT Plus, despite it being a condition placed upon Connex when they took on their contract. Kevin Lewis does not really address this failure at all in his reply. Indeed he is remarkable blasé about this when questioned at an earlier States sitting:

6.1.8 The Deputy of Grouville:
As it has been established that Connex are now reneging on their Service Level Agreement, could any
form of compensation that might be forthcoming be used to make... for T.T.S. to use alternative provision
to provide public transport in the interim?
Deputy K.C. Lewis:
That is something my officers are looking into.

The answer in the States by Kevin Lewis today also noted that:

The meeting took place on 10 October 2012 and was extremely constructive. At the meeting it was agreed that eligible staff would transfer with preserved continuity of employment, for future statutory redundancy, unfair dismissal and notice purposes. The transfer would be on the basis of new terms and conditions in order to ensure that the present needs of Islanders were met, in accordance with the provisions of the 2010 Sustainable Transport Policy. A number of changes were agreed to enhance the terms and conditions on offer.

On 19 October 2012, TTS reiterated to CT Plus that it was essential that all key terms and conditions (such as rates of basic pay) of transferring staff were either mirrored or improved upon. CT Plus agreed further to enhance the terms and conditions that were being offered to transferring staff.

There follows a note about extensive discussions between CT Plus and the union, and a not that "CT plus is now offering eligible driving staff employment on terms which include the following". Of these, the most significant is:

· No probation period will apply to transferring staff
· Staff transfer with preserved continuity of service for future statutory redundancy, unfair dismissal and notice purposes.

It also notes that:

For information, the 54 hour working week maximum being applied to this new contract has been introduced for health and safety reasons to protect both the public and drivers, in accordance with advice we have received from the Health & Safety Inspectorate. It is in accordance with recognised UK best practice and consistent with the Unite Union's current 'A Safer Way' campaign.

This still doesn't answer all of Deputy Geoff Southern's questions, in particular:

What evidence does the Minister have to support the following statements he has made in relation to this issue -
· "a workforce controlled by fear and favour";
· "despite the hindrance of the previous staff transfer. We must not allow the same political involvement to stifle a contractor again"; and,

Deputy Kevin Lewis just brushes these aside, and yet they made a very clear picture of current practice which was part of his speech in defense of TTS in the States recently. Deputy Southern was rightly pulled up when he called the Minister "a fool" in the States, and yet Deputy Lewis seems able to malign bus drivers without any evidence to support his accusations.

That's not to say he may not be right, but he offers no evidence to backup those statements. It seems to me that when left wing politicians make statements for which they offer no factual supporting evidence, they can be pulled up on it, but when Ministers do, no one cares about it. I'm personally against unsupported rhetoric of this nature whether of right or left.

It reminds me of the quote from Disraeli about Gladstone of "a sophistical rhetorician, inebriated with the exuberance of his own verbosity, and gifted with an egotistical imagination that can at all times command an interminable and inconsistent series of arguments to malign an opponent and to glorify himself".

If there really is "a workforce controlled by fear and favour", there should be a proper investigation, and workplace bullying stopped in its tracks. He should ensure it is dealt with severely.

Gary Namie noted how "how bullying in the workplace can rise to the level of abuse whereby the abused employee is essentially in a domestic violence-type situation. He concludes that an employee suffering from bullying must address the issue with management because it is management's responsibility to manage the workplace environment. If the employee does not find help after reporting the bullying, then he/she must go higher up the management ladder."(6)

On the other hand, if it isn't true, Deputy Lewis should issue an apology for misleading the States. What he shouldn't do is avoid answering the question. If you make statements like that, you must be prepared to justify them.

(1) http://www.channel103.com/news/index.php?storyid=22732&s=1
(2) http://www.unitetheunion.org/news__events/latest_news/unite_urges_employers_to_help.aspx
(3) http://www.statesassembly.gov.je/AssemblyPropositions/2012/P.060-2012%20Com(2).pdf
(4) http://www.gov.je/SiteCollectionDocuments/Working%20in%20Jersey/R%20
(5) 5) EmploymentForumsReccommendationRedundancyBusinessTransfers%2020091211%20EV.pdf
(6) http://www.jmarklaw.com/Employment/Bullying-in-the-Workplace-What-You-Can-Do.shtml

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