GMB STATEMENT REGARDING SETTLEMENT OF CLAIM AGAINST BIRMINGHAM CITY COUNCIL
Statement issued by Joe Morgan, Regional Secretary, GMB Birmingham West Midlands Region
Following a series of unfounded and completely inaccurate statements made by Unite the Union in the press, it is necessary for GMB to release a further statement to provide clarification on the payment made by Birmingham City Council to members of our union to, and only to, settle a claim brought by GMB Trade Union.
The information below sets out the background to the claims and the legal basis for pursuing them.
Background to the Claims
The 2017 dispute in the Waste Service arose from proposed changes to the service. The proposals, which would impact our members, included significant changes to working arrangements and the removal of a pay grade of worker. The consultation regarding these changes commenced in March of that year.
GMB and the other recognised Trade Unions registered a dispute with the council on 14th April 2017.
As a result of that dispute, the council agreed on 24th April 2017 that the timescales for implementation of the proposed changes would be extended by 6 weeks; it was proposed that during this period, the unions would work with management on alternative proposals. A number of joint union member meetings were arranged to keep members working in the service updated.
Unite announced in June that they would be balloting for industrial action. The outcome of this was that Unite members took strike action.
On 27th June, Councillors in the Cabinet agreed to impose the proposed changes.
GMB undertook an indicative ballot of members in July 2017. Our members indicated that they would not vote to take strike action.
During the industrial action, some GMB members refused to cross picket lines in support of their striking colleagues. These GMB members did not attend work and had their pay deducted as a result.
For the avoidance of doubt, no member of GMB received any additional payment for not striking. This has been confirmed by both GMB and the council.
GMB submitted a dispute to the council regarding the proposed redundancies and restructure on 16th October 2017.
Various talks were held to resolve the disputes, but GMB representatives were refused access to these talks at the insistence of Unite. GMB highlighted to the Leader of the Council, the Chief Executive, members of the Cabinet and Council Officers that this raised serious concerns. GMB made it clear that, should the talks lead to an agreement on changes to terms and conditions of employment for our members, then GMB (as one of the recognised trade unions) would need to be consulted.
A meeting was held at ACAS regarding the GMB dispute. Council officers attended, but did not progress the discussions due to other talks taking place with Unite.
It was announced that the Unite dispute was ended on 25th November 2017. An agreement was reached between Unite and the Council, which impacted upon our members. GMB was not party to this. The terms of the agreement are contained within a ‘Memorandum of Understanding’ which has been kept secret from GMB. However, GMB were notified that the agreement included a package of changes to the terms and conditions of our members working in the Waste Service. These changes were significantly different to those agreed by the Cabinet on 27th June 2017 and are set out in a report to Cabinet dated 24th November 2017. As the changes were significant, they should have formed part of consultation with GMB.
It is GMB’s position that the changes were imposed on our members without any meaningful consultation with GMB and this amounted a breach of the council's statutory obligations as set out in section 188 of the 1992 Trade Union and Labour Relations (Consolidation) Act.
Council officers were informed of this position and were asked for a response by 5th January 2018. The Leader of the Council was approached on 8th January 2018 as a response was not received. He confirmed that he had spoken to the Chief Executive and would ask the Chief Operating Officer for Strategic Services to liaise with HR and Legal Services and come back to GMB.
A meeting was held with Council officers on 22nd January and a deadline was given for a response.
No response was received and so on 26th January 2018 GMB commenced Early Conciliation with a view to pursuing a claim against the council under the legislation referred to above.
Details of the claim
GMB is a member led organisation. When an employer seeks to make changes that impact on our members, we aim to consult with our members to make sure that they have a say. In this case, we were not able to do this.
The council effectively ripped up our member’s contracts of employments and imposed a set of changes to our members’ terms and conditions. This was done without any meaningful consultation with GMB and ignored the collective bargaining arrangements within the council.
It was our opinion that, by imposing the changes on GMB members, the council had effectively dismissed those employees and re-engaged them on new terms and conditions. It was our understanding that this should have triggered the collective redundancy consultation obligations as set out in section 188 of the 1992 Trade Union and Labour Relations (Consolidation) Act.
This clearly did not happen and we believed that this amounted to a breach of the council's statutory obligations under the act. This is why we started a legal claim for failure to consult.
As part of the Early Conciliation process, ACAS negotiators facilitated discussions between the council and GMB.
GMB reached an agreed settlement with the council to recompense our members for the council’s failure to follow its legal obligation to consult with GMB.
The settlement applied to the relevant GMB members working in the Waste Service. The settlement did not relate to any strike action.
The settlement was done through a COT3. This is a legally binding agreement to settle an actual or potential claim in the Employment Tribunal agreed following conciliation by an officer employed by ACAS.
The COT3 wording is drawn up by ACAS and in this case stated that the settlement related to:
“Any claims arising out of the Respondent’s alleged failure to consult with the Claimants’ Trade Union, GMB, on the terms of the Memorandum of Understanding agreed on 24th November 2017, whether they be issued or prospective claims”
The COT3 contained a confidentially clause. However, GMB has agreed a waiver with the council so that details of the settlement can be made public. This was agreed on 28th November 2018.
GMB’s primary focus is to support our members and we will always seek to act in their interests. In this case, we believed that an employer had failed in it's statutory duty and ignored Trade Union recognition and the collective bargaining process. We took the appropriate action to seek a remedy.
Regarding the issue of ‘parity’ payments, we are not aware of any lawful basis for the council to make comparable settlement payments to other Waste Service employees that would not lead to further legal challenges.
We would not normally seek to provide such a detailed statement regarding issues such as this. However, false accusations made by Unite officials against GMB and targeted abuse and harassment against GMB officials has left us with no alternative.
In order to help resolve any other issues, we have asked the Leader of the Council to also release as much information as possible regarding the claim.
We now hope that colleagues from across the labour movement will support and acknowledge our attempts to hold an employer to account and to stand up for our members.
Contact: Joe.email@example.com 07794247960