7th May 2021
PATHWAY TO CHANGE AGREEMENT – NEW LEGALLY BINDING CONTRACT
Colleagues will be aware that the whole focus of the Union’s current approach following the endorsement of the Pathway to Change Agreement has been driven by the requirement to change the culture, improve trust and create an industrial relations environment whereby the emphasis is on how we develop joint mutual interest solutions and agreements avoiding where possible reaching a disagreement.
However, disagreements will emerge and how we support the speedy resolution to disagreements and ensure we deal with them effectively within a specific timeframe is key to maintaining a progressive IR culture. The emphasis being the quicker one deals with a problem, the faster you get back on track.
Against that backdrop, Section 2.8 of the Pathway to Change Agreement committed the Union and Royal Mail Group to amend the Legally Binding Agreement annexed to the Agenda for Growth Agreement, the specific commitment is reproduced below;
‘It is our shared aim that effective dispute resolution processes should enable the resolution of matters in a positive and timely manner. The focus should be on finding solutions and avoiding conflict. Whilst we remain committed to the principles of the IR Framework (1992, 1994) and the Procedural Agreement in Parcelforce, we recognise the need to refresh specific elements regarding external mediation in the legally binding DRPs (specifically schedule 3, section 4 of the legal contract) and the respective section of the Agenda for Growth Agreement (specifically section 5.4 of the agreement) and the parties will work together to with our respective legal advisors to introduce the following changes by no later than 28 February 2021.
A more effective and robust way of jointly managing the application, recording and timescales of the procedures.
Review managerial and CWU interfaces at local, area and divisional level (or equivalent) to ensure that these individuals meet with full authority to resolve disagreements in line with the procedure.
To introduce a clearer distinction between achieving local and national agreements.
To introduce a time-bound one-month process for resolution of national issues after a dispute has been raised and prior to the national parties informing each other of their intentions. (External mediation can be part of this process, if both parties agree to it, but cannot extend the time without agreement). This will replace the relevant extended procedures currently set out in the legal contract schedule 3, section 4 and the Agenda for Growth Agreement section 5.4.
To reinvigorate the principles of resolving issues and achieving agreement at local level. Once the local dispute process has been exhausted on an issue, if resolution hasn’t been achieved, there will be an opportunity for referral to the national parties for a time-bound one-week review (or longer by mutual agreement) to agree a resolution, following which the local dispute process will be regarded as completed and there will be no recourse to national intervention within the formal procedures.
These principles have all been incorporated into the attached agreed new legally-binding contract that will amend the previous legally-binding contract annexed to the Agenda for Growth Agreement.
However, the constructive nature of these talks enabled us going beyond the specific commitments detailed above on the basis that it was logical to tidy up the dispute resolution procedures and to make some small but significant changes in the following areas;
This refers to the company’s obligations not to break up the business, not to allow franchises, not to operate a two-tier workforce, not to start employees on zero-hours contracts, not to worsen existing terms and conditions, to honour the Job Security, Resourcing and Managing Change Agreement and to recognise the CWU. All these obligations remain in place.
In this area is was felt that the contract was ambiguous in respect of some of the protections, so the wording has been amended to make it clear that if any of the Protections are being breached, the Union can go straight to court for an injunction. It does not need to go through any form of dispute resolution process first – it would only have to do so if it intended to start industrial rather than legal action.
Dispute Resolution Processes:
Disagreements that start at Local Level
The basic structure for resolving local disputes is still based on the IR Framework but it has been streamlined.
The basic principle remains that if a disagreement arises at the level of an individual unit, shift or equivalent, the Unit Representative and his or her counterpart will try to resolve it. If they cannot, either of them can refer the disagreement to Area Level. There is no longer any need for a formal joint statement of what the dispute is about, still less any need to try to agree any such statement. (this is to ensure the lack of cooperation by either party should not be allowed to make the disagreement fester or threaten the status quo). To be clear if a local representative wanted to register a disagreement unilaterally because the local manager was refusing to register it jointly, we would still expect a full report from the local representative to the area representative in line with our current joint IR training.
Once the disagreement is referred to Area Level the clock starts to tick. The Area Representative and his or her counterpart must start discussions within a week. The discussions can last no longer than a week unless both sides agree to an extension. If they cannot reach an agreement, either side must refer the disagreement to Divisional Level within a week in line with our current joint IR training.
The Divisional Representative and his or her counterpart must start discussions within two weeks. Unless an extension is agreed, the discussions must be concluded within two weeks.
Continuing Failure to Agree
If there is no agreement following the Stage 3 discussions at Divisional Level, parties must report the failure to agree to National Level. One week later the procedure is at an end.
Disagreements that start at Area, Divisional or National Level
It is sometimes apparent that what presents itself as a disagreement within a particular unit is in fact a manifestation of an area-wide, division-wide or national policy adopted by the company or its managers, meaning that local level discussions would be a waste of time.
Under the new agreement, a disagreement that relates to all units in an area or a division enters the process at Area or Divisional Level.
We have now formally clarified that an in principle disagreement about the meaning or application of a national agreement or policy can emerge or be identified at any stage of the Local, Area or Divisional Level disagreement process. Where that is the case, under the new agreement the “in principle” disagreement is referred to National Level from the outset.
If there is a failure to agree at National Level, the procedure is at an end.
Early Warnings and Flashpoints
In this situation and in the recent past the company’s first course of action has been to send a letter to the Union calling upon it to repudiate the action being taken. In the negotiations, the company’s representatives agreed that doing so is counterproductive if the Divisional Representative and his or her counterpart are doing what they can to restore normal working and in a side-letter they have given a commitment not to write to call for repudiation until 24 hours have been allowed to restore normal working (copy attached).
The “early warnings” process is engaged if a flashpoint seems to be on the horizon but has not yet occurred. If either side has a genuine reason to think that a flashpoint may occur, the Union Divisional Representative and his or her counterpart will become involved to find out what the problem is and try to resolve it.
The agreement means that the Union has to go through a procedure to try to resolve differences before taking industrial action but it does not prevent the Union from taking industrial action – it emphatically never was or is a no-strike agreement.
The requirement for compulsory external mediation has gone. It is still available if both sides want to use it but it is no longer compulsory and either side can walk away if it is started but seems to be going nowhere. External mediation was considered by both parties as a major time constraint on resolving any differences.
The time constraints now are these, unless the parties agree to extend in the interest of an agreement being reached:
A dispute that starts at local level: one week to start Area Level talks and up to one week of Area Level talks, two weeks to start Divisional Level talks and up to two weeks of Divisional Level talks and one week’s reflection if Divisional Level talks lead to a failure to agree. That makes a total of seven weeks, if Union representatives escalate the dispute to the next level as quickly as possible and less than that if it is clear that talks are going nowhere.
A dispute at national level: the Union is committed to national level talks of at least one month.
It is now conformed in the contract that there is nothing to stop the Union campaigning, preparing for a ballot or conducting a ballot while the talks are ongoing.
Unilateral Management Action
It remains the case that if a disagreement is being dealt with at Local, Area or Divisional Level, management must continue to observe whatever national or local agreements are in place or in the absence of an agreement, must continue whatever working practices have been in place for at least a week before the dispute arose. They are legally obliged to do so and this is why it is so important that a local disagreement is identified and raised prior to any status quo being threatened.
However, in very high bar circumstances that does not apply to a dispute which starts at national level. The company retains the right to take unilateral action at national level on issues not covered by any national agreement or to terminate any national agreement that is binding in honour only. The company will not give a legally-binding commitment to maintain the status quo whilst national talks are ongoing. They say there may be reasons of financial distress, refinancing, insolvency, stock market obligations etc. that make it impossible to do so.
The agreement annexed to Agenda for Growth was essentially a negotiated settlement with the company that gave the Union the very important Protections in the face of privatisation in exchange for a binding commitment to exhaust procedures before taking industrial action.
Those procedures and specifically the required external mediation have proven to take a long time to exhaust, led to uncertainty and have presented very expensive legal complications and challenges.
The Legally Binding Agreement reached in 2014 was truly groundbreaking and has now been refined and evolved to continue its effectiveness;
All of the important protections are still in place.
The Dispute Resolution Process is now much quicker since compulsory mediation has gone and the opportunity for heel-dragging has been removed.
The possibility of starting the procedure at Area or Divisional Level is particularly welcome.
So is the company’s enhanced commitment to resolve flashpoints without sending a repudiation letter as an immediate first reaction.
Clarification that the Union can commence public campaigning and preparing for a ballot whilst talks are still underway is not a breach, is very important.
We have been assisted in these talks with our long-term legal advisors and CWU friends Ivan Walker and Binder Bansel and wish to record our huge thanks and appreciation to them for their wisdom and support in these negotiations.
Any enquiries in relation to the content of this LTB should be addressed to the DGS(P) Department.
Deputy General Secretary (Postal)