Legal position re: National Agreements - case law advice needed pls

[Skaatiii]

Hi All,

Im in the midst of a tribunal and part of the claim relates to the T&C of the employment contract. The contract was agreed in such a way as to ensure no National Agreement/Working Rules were applied but still ensure that the benefits of such an agreement would be received by the employee. The employer was already linked to a Trade Union via Collective Agreement and was adamant during offer negotiations that the contract should not be linked to a National Agreement in any way.

The contract is old and dates from 1996 - just after tthe ERA act came in. The only specific mention in the contract that relates to a trade association/Trade union/industry is via remuneration where it says "in line with" and names a Trade association.

The Respondents lawyer is adamant that contract is tied to a National Agreement - despite the contract itself being constructed specifically to prevent any such ties.

Im desperately trying to come up with cases that I can reference in my submission and would really appreciate any suggestions from readers of the forum - or any pointers on how i can refute the connection!

Many thanks in anticipation!

[teaboy2]

Re: Legal position re: National Agreements - case law advice needed pls

Can you be a bit more specific, i.e. give us a back ground story please, as the post is a bit difficult to advise on without knowing exactly what went on etc.

Was the employee a member of the trade union before signing the contract of employment?

What was the reason for the employer to not want it to be connected to a National Agreement and what national agreement are you referring too and is it the employer who is now saying the opposite by claiming it is connected to a national agreement or is it the employee that is saying that?

What is the employees reason for the tribunal claim?

Are you posting on behalf of the employee of the employer, as i can not tell whos behalf your posting on and that can make a real difference too, i.e. lead to worng advice being given.

[Skaatiii]

Re: Legal position re: National Agreements - case law advice needed pls

Hi Sorry was a bit vauge when I read it back - ok answers to your points:

Can you be a bit more specific, i.e. give us a back ground story please, as the post is a bit difficult to advise on without knowing exactly what went on etc. Claim with ET for unfair dismissal and breach of contract. BoC relates to pay and T&C's which were not adhered to during employment. Employment terminated through redundancy 2011. Issue 1. Pay - CoE states "remuneration 'above HVCA rates' Pay increases were not applied 2008-10 due to a 'pay freeze' in effect, but this only applied to HVCA rate for Appendix D workers and rates in contract were agreed to appendix C workers so this did not apply (Have checked this with HVCA) All other pay uplifts were in line with Appendix C increases inclucing 2011 uplift. 2. Training - although not included in CoE it was agreed that qualifications would be maintained as already held by Employee at time of employment at Employers cost for life of employment - due to regulation need for qualifications! This happened until latest change of ownership when only limited qualifications were renewed in 2007, which are now due to expire. and despite numerous requests by employee/line management & appraisals etc no training was provided in 3+ years not even statutory training for health and safety. Directors response was no funds available in a national company employing 50k+ staff? Full qualifications are needed to obtain similar employment
Was the employee a member of the trade union before signing the contract of employment? No

What was the reason for the employer to not want it to be connected to a National Agreement and what national agreement are you referring too and is it the employer who is now saying the opposite by claiming it is connected to a national agreement or is it the employee that is saying that? Employer was already linked to a National Agreement with JIB and was offering employment to diversify business by commencing services in related field (mechanical) governed by a trade association (HVCA) but Employer expressly specified did not want to be tied to another NA because of ceiling on working hours etc so offered direct employment via negotiated CoE including all benefits related to NA i.e. holiday and pay increases by linking to trade association rates. CoE states 'in line with' in remuneration and holiday to this effect.

Employee has been paid uplift in hourly rate following increases in trade rates advertised by Trade Association as contract states "will be paid x% above HVCA rates." This was to ensure pay was increased when industry rates were increased and was to shadow peers rates/benefits.

Company changed hands 2x since and contract was transferred over to new owners. Latest company now says that CoE is under NA - which employee states is not applicable.

What is the employees reason for the tribunal claim? As above and employee also had issues during redundancy due to restructure which we feel were unfair. Believe is not a genuine redundancy because he had spent many weeks organising a project of work which was signed under contract whilst the redundancy process was underway - this was identified and processed solely by the employee. The work commenced the day after his termination of employment and had to be covered by another employee from an alternate area of the business. There was no need for electrical qualifications and the work would have been undertaken by the employees formerly held post. Also had work lined up for 6 months in advance and had worked 118 hours overtime in previous 13 weeks prior to notice of redundancy. Role may have been redefined but work remained the same and employee could have completed this work?

Also the existing post transferred to new structure but was redefined as Mechanical/Electrical Supervisor not just Mechanical Supervisor so not automatically appointed as 'current post does not include electrical qualification' employees job could transfer on condition that he qualified in alternate related field (electrical) within set time - but qualifications and time were never stated, also at final meeting role had to be declined due to employee not having qualifications to meet CDM regulations (because employer had failed to maintain training in health and safety as well as failing to train employee to previously held qualifications as agreed in CoE)

Have issues with stat redundancy process as well i.e. announement made before employee informed - written notification of redundancy all incorrect i.e. you were told reasons at meeting on .... which he never attended, incorrect selection pool, incorrect date of termination stated if no redeployment etc. Also he was removed from selection pool - never informed of selection scoring. Selection for new role was not established during consult period - so employee could not be scored against role? Finally, the restructure had been referred to since September 2010 so why in March 2011 was employee suddenly unable to switch to new structure when work remained same? No collective consultation despite time of decision and no of employees impacted - which im still trying to establish! The entire sector (described as a discrete business) was to close with some areas merging with another sector = employee worked in an area to merge.

Are you posting on behalf of the employee of the employer, as i can not tell whos behalf your posting on and that can make a real difference too, i.e. lead to worng advice being given.

Employee - self representing at tribunal (Im his other half)

[Skaatiii]

Re: Legal position re: National Agreements - case law advice needed pls

For some reason it wont show the answer to the last question - On behalf of the employee, who is self representing at the tribunal (im his OH)

[teaboy2]

Re: Legal position re: National Agreements - case law advice needed pls

HI Skaatii

Well sure sounds complicated, but from what you have said it all boils down to whether the redundancy was lawful or fair and whether their failure (in breach of contract) to provide the training needed for the required qualifications had any effect on a decision to make your other half redundant or not. And the tit for tat argument about whether it (the contract) is tied to national agreement or not is, from what i understand, nothing more than an argument that the respondents solicitors created, likely to distract you from the core arguments which is the redundancy issue.

What does the contract say in its terms specifically in regards to national agreements? As such term will make clear whether it is tied to national agreement or not. But either way i do not see how that will effect your over halfs claim for unfair dimissal via redundancy.

If the solicitor wished to continue arguing that it is tied to an National Agreement then tyou should write to him/her reminding them of the employers positions at the time the contract was signed and how they (the employer) did not what the contracted tied to a national agreement and they were pretty clear about that fact - and then refer the solicitor to the legal term "estoppel". Now i can assure you that will give the solicitor plenty to think about lol.

[Skaatiii]

Re: Legal position re: National Agreements - case law advice needed pls

Thank you Teaboy! You're right it is getting complicated - the hearing has been postponed so that it can be extended to hear all the arguements so although im fairly confident about the right to bring the case I am slightly daunted by the intricate nature of the arguements I am now trying to prepare!

I dont suppose anyone on the site with experience of employment law would be willing to look at the ET claim form/paperwork and give me some advice?

nb: I have previously stated some details about the situation via another post but have no idea how to link it - if admin could do this i would appreciate the help!

[teaboy2]

Re: Legal position re: National Agreements - case law advice needed pls

Thank you Teaboy! You're right it is getting complicated - the hearing has been postponed so that it can be extended to hear all the arguements so although im fairly confident about the right to bring the case I am slightly daunted by the intricate nature of the arguements I am now trying to prepare!

I dont suppose anyone on the site with experience of employment law would be willing to look at the ET claim form/paperwork and give me some advice?

nb: I have previously stated some details about the situation via another post but have no idea how to link it - if admin could do this i would appreciate the help!

Simply copy the URL for the post in question and paste it in the reply box for this thread and it will show the link then.

[Skaatiii]

Re: Legal position re: National Agreements - case law advice needed pls

do you mean like this?

http://www.legalbeagles.info/forums/...ad.php?t=30869

[Skaatiii]

Re: Legal position re: National Agreements - case law advice needed pls

Could someone please give me some suggestions for standard cases to use in my submission to the Tribunal regards redundancy and National Agreements etc

Any info would be greatly appreciated!

[teaboy2]

Re: Legal position re: National Agreements - case law advice needed pls

What did the terms in the contract say about national agreement exactly?

Its hard to advise accurately what to put in your claim submission without knowing what is exactly said in the terms of the contract. I accept what you said about the national agreement and the employer not wanting the contract to be tied to one, but we need to know what the terms in the contract state in relation to a national agreement if it states anything at all.

It would be difficult to locate a standard case based on redundancy and national agreements - besides redundancy are legislated by employment laws so such an national agreement would not have any effect on redundancy.

[Skaatiii]

Re: Legal position re: National Agreements - case law advice needed pls

Hi Teaboy, Thanks for your reply.

What I am referring to as the CoE is entitled "Statement of particulars and employment persuant to the employment protection (consolidation) Act 1978 asamended by the Employment Acts 1980,1982,1988 & 1989", which was agreed in 1999 and the only reference to a Trade Association is in the statement of particulars which says "holiday entitlement - in line with HVCA working rules" and "remuneration & when paid - HVCA rates + % paid weekly by BACS"

Having read all the attached policies and safety handbook which accompanies this I can find no reference anywhere to a National Agreement. The only collective agreement mentioned is in the safety handbook where it states that the company will recognise union representation regarding health and safety issues.

What I am trying to establish is whether there is a 'blanket' acceptance or recognition about National Agreements that I am unaware of?

[Skaatiii]

Re: Legal position re: National Agreements - case law advice needed pls

Hi Teaboy, Thanks for your reply.

What I am referring to as the CoE is entitled "Statement of particulars and employment persuant to the employment protection (consolidation) Act 1978 asamended by the Employment Acts 1980,1982,1988 & 1989", which was agreed in 1999 and the only reference to a Trade Association is in the statement of particulars which says "holiday entitlement - in line with HVCA working rules" and "remuneration & when paid - HVCA rates + % paid weekly by BACS"

Having read all the attached policies and safety handbook which accompanies this I can find no reference anywhere to a National Agreement. The only collective agreement mentioned is in the safety handbook where it states that the company will recognise union representation regarding health and safety issues.

What I am trying to establish is whether there is a 'blanket' acceptance or recognition about National Agreements that I am unaware of?
------------------------------- merged -------------------------------
Forgot to add...although the holiday entitlement states in line with HVCA working rules - there is also a Staff Holiday Policy included which details company procedures for additional days dependant on length of service, notice times for holiday requests etc, all of which are not applicable to the HVCA working rules = which I feel supports the arguement that I am making that this was a reference point only to demonstrate how many days were entitled

[teaboy2]

Re: Legal position re: National Agreements - case law advice needed pls

If there is no direct reference in the employment terms to a national agreement then there is no connection between the contract and a national agreement

The part about Holiday pay has the key words "in line with" meaning that its they equivalent or similar to, but not necessary the exact same or connected to HVCA holiday entitlement policy. So their is no connection tieing your partners employment contract to any national agreement between the employer and the HVCA at all.

[Skaatiii]

Re: Legal position re: National Agreements - case law advice needed pls

Thank you.....thats exactly what I thought - yet the Respondents representative is adamant that there is a tie to the National Agreement....

I am right in thinking that the statement overides all else as in reality this is the 'contract' between employer and employee aren't I - even if they have an agreement with the trade association now?

[teaboy2]

Re: Legal position re: National Agreements - case law advice needed pls

Thank you.....thats exactly what I thought - yet the Respondents representative is adamant that there is a tie to the National Agreement....

I am right in thinking that the statement overides all else as in reality this is the 'contract' between employer and employee aren't I - even if they have an agreement with the trade association now?

Then more fool him them, thats all i can say.

Yes the written statement of particulars i.e. Contract of employment and terms in the contract. overides all else. As that is the contract and no outside terms or outside influence can change that without your partner providing a signiture accepting a change to terms of contract.

Any issue between the employer and the Trade Assciations is just that, its between them. And has no bearing on the contract of employment when no new terms were accepted by your parnter and they would require a written and signed acceptance from your partner agreeing to any terms in his contract being added or changed. Without such changes, then the agreement between employer and trade association has not relevance to your partners employment contract - Simply due to the fact that your partner is not part of any terms or conditions or agreed to be part of any agreement between his employer and the trade association.