MESSAGE FROM CWU LONDON

[lovejoy]

A MESSAGE FROM THE LONDON DIVISION

Dear Colleague,

We are writing to all Branches and senior activists within the union to outline the attacks which the London membership are facing at the hands of Royal Mail, backed by this Labour Government.

We feel it is necessary to do this because there have been a number of cynical comments doing the rounds that this dispute was solely about London looking to achieve a deal for London only.

Nothing can be further from the truth.

This dispute is about the future of our industry, our jobs and our livelihoods and whether or not we continue to have union representation in every workplace backed up and supported by an effective and influential national union. As far as London is concerned the dispute is about these things. Nothing more, nothing less.

BACKGROUND

At a Joint Postal Executive/Divisional Representatives meeting in December 2008 it was recommended that there should be no savings agreed by any office until there was a National Agreement on the future of Deliveries, Mail Centres and Network. We also agreed that any national agreement must include a new approach on Pay and Benefits.

The Postal Executive agreed this position at a statutory Postal Executive. Bob Gibson, the National Outdoor Assistant Secretary, informed all Branches and Area Representatives that the policy was no more savings at a National briefing at Friend’s House in January. This was followed up by further Divisional Representatives meetings and Delivery Reference group meetings.

The London Divisional Committee, consisting of all London Branches in all functions unanimously decided that no savings would be agreed and if management imposed any executive action then we would ballot the whole division for strike action.

When management subsequently took executive action in the City of London (EC) Delivery Office we applied for a ballot across the Division. The National Postal Executive decided to ballot London on the basis of a National response to Royal Mail’s attacks on the whole of UK and in pursuance of a National Agreement on the future of the industry.

THE ATTACKS ON LONDON

The London membership produced a 91% yes vote for strike action.

In pursuance of the National Agreement and as a response to the most concerted attack on Jobs and terms and conditions in history London has, to date, taken 5 days of Industrial Action.

Management have taken executive action in over 50 offices in London and we have received a further 28 statements of intent.

The levels of Job reductions ranges from 6% to 33% in each workplace.

One example of what is going on in London are at Mount Pleasant where management have given notice of executive action on removing 250 Jobs from the Mail Centre.

This can not be done by voluntary means and will lead to compulsory transfers to delivery offices, this is despite the fact that staff do not want to go to delivery offices.

In addition we have delivery offices where they have removed a third of Jobs by executive action. Management have also given notice in these offices that they intend to introduce Geo route revisions in October.

Others units in London have received proposals for the introduction of over 40% part timers. This effectively means that full timers will be compulsorily transferred. This will mean that with all offices receiving similar proposals it is inevitable that in the very near future we will reach a tipping point whereby there will be no full time jobs to be transferred into. Moreover they are making members on fixed term contracts redundant.

Furthermore they have given notice of the removal of all 4 day weeks despite agreeing these duty patterns under the Phase 2 audit process.

Royal Mail’s removal of 4 day weeks which affects around 1800 individuals within London means that these individuals will have to work an extra 46 days per year and in a lot of cases are losing up to £6000 per year.

Faced with this attack we have CWU members in London who face losing their homes solely because Royal Mail refuse to recognise 4 day weeks despite only agreeing them last year under innovative duty patterns.

EXECUTIVE ACTION

Thus far Royal Mail have imposed revisions or issued notices of intent in all the following offices: South London Mail Centre, Mount Pleasant, EC Delivery, W1, WC, SW1, SW6, SW7, SW11, SW13, SW14, SW15, SW16, SW17, SW18, SW19, SW20, W2, W3, W4, W5, W6, W7, W8, W9, W10, W11, W12, NW1, NW2, NW3, NW4, NW5, NW6, NW7, NW8, NW9, NW10, NW11, NW12, SE1, SE18, E1, E3, plus most of the distribution hubs.

In addition they are imposing Network 2009 in all our VOCs. This week they decided to conduct a re-sign of duties by putting names in a hat rather than by seniority. This has resulted in two people with a total of 66 years service between them being without a job.

REMOVAL OF LOCAL AGREEMENTS

Royal Mail has ripped up the phase 2 local agreements section of the Pay and Modernisation agreement which dealt with moving staff to local offices and flexibility.

They are now moving individuals on a daily basis to offices miles away from their parent office in order to antagonise individuals and to provoke a reaction from the union.

We are also seeing Royal Mail remove individuals from duties regardless of seniority in order to use those duties for walk absorption. This is clearly in breach of Phase 3 of the pay and modernisation agreement.

BULLYING AND INTIMIDATION

In short, Royal Mail has declared war on the London membership.

On a daily basis we are seeing individual’s taken off pay for failing to complete their deliveries.

In a lot of cases these individuals, many of whom have worked on deliveries for years and have never been in any trouble before, have been taken down the conduct code and charged with wilful delay.

Offices have been swamped by managers from every part of the UK who man mark our members and bully them.

We have also seen collections and Mail Centre staff being sent to delivery offices and threatened with the conduct code if they refuse.

Only last week one individual, who had just been presented with his 30 year long service award, had to bring some work back as he could not complete. In line with the conduct code he informed management prior to going out on delivery, but they still suspended him from delivery and are attempting to do him for wilful delay.

Undoubtedly, Royal Mail management’s aim is to create a climate of fear in London in order to drive through their destructive plans on jobs and conditions.

BREAKING THE INDUSTRIAL RELATIONS FRAMEWORK

Royal Mail is actively attempting to sideline the CWU in London by refusing to reognise the interfaces on the industrial relations framework.

They are having cluster DOMs perform stage 2s and DSMs stage 3s.

They have refused a point of principle and are implementing revisions without going through stages 2 and 3 of the I.R. Framework

PUNISHMENT CHARTER

Royal Mail has introduced arbitrary sanctions against the East London mail centre. This was over a spontaneous walk out that happened when the area reps were at conference in Bournemouth. London Management have let it be known that they intend to remove all local agreements and are transferring 40% of East London outward work to other offices on a daily basis.

The East London membership has started to work safely and management cannot clear and are threatening to take staff off pay on a daily basis. They have now told the Area Distribution Rep that they are going to remove him from his union position for 90 days. This is clearly a move to de-recognise the CWU in the East London Mail Centre.

LONDON DIVERSIONS

Management are diverting London`s work to all parts of the country. Not only on strike days, but also on non strike days. We realise that Mail Centres which have capacity will have to perform this work. However it is disappointing that some mail centres are actually putting on extra shifts and overtime to perform these diversions.

In London we believe that this is fundamentally wrong and certainly not in the spirit of trade unionism.

We thank the vast majority of mail centres who have contacted us and have played the game. However those others, and you know who you are, should be ashamed.

HALF DAYS

All members in London recently received a letter from management stating that if they took strike action for part of a day they would lose a full day’s pay. They apparently have the right to do this under a law passed in the 1870’s and this goes to show the vindictiveness and just how much contempt and venom Royal Mail has for its work force.

CONCLUSION

Despite all these attacks and the constant bullying and harassment of individuals, the London membership has stood solidly together, shoulder to shoulder with each other and with the other parts of the country leading this fight. The membership in London is determined to fight for an agreement that secures a future for all our members in all functions across the UK.

THE LONDON MEMBERSHIP WILL NOT TAKE ONE BACKWARD STEP IN SUPPORT OF OUR NATIONAL UNION.

It is vital that the CWU wins this dispute. In London we are determined to ensure, along with our colleagues taking strike action around the UK, that we continue the fight in the lead up to the National ballot and will do everything within our power to secure a massive yes vote in the forthcoming ballot.

Yours sincerely,

Martin Walsh / Mark Palfrey / John Simkins
London Divisional Representatives


The London Divisional Committee is made up of Representatives from the following Branches; London West End Amalgamated Branch. South East London Postal and Counters Branch. London South West Branch. Mount Pleasant International Branch. West London Postal Branch. East London Postal Branch. North/North West London Branch. London Parcels and Stations Amalgamated Branch.

[Wessex]

Sure recognize the man marking thing.Every time a manager came into our office another one would be deployed to stand next to me and bog me out.Good luck to our lot in the Smoke and across the country ,we will be voting Yes in the National Ballot and will be joining you soon.

[Night Tonic]

So, they COULD stop a days pay. And all that waffle by amateur legal experts about "class actions" and it definately being illegal. Gosh, need eyes in the back of your head.

[nottadrone]

Thanks for that Lovejoy. Now we know exactly how high the stakes are in this dispute. I just wish the media in general would report this, instead of just calling it a 'Pay dispute'.

[Wessex]

So, they COULD stop a days pay. And all that waffle by amateur legal experts about "class actions" and it definately being illegal. Gosh, need eyes in the back of your head.

Probably in all aspects of life there are things that we consider unjust and therefore we presume they are illegal and that often proves to not be the case(no pun intended)but equally some laws/institutions when properly challenged do not always come out on top.

[axeman]

Lets all hope that the draconian attitude royal fail is displaying by invoking a law that as outdated as the spanish practices they (lil ad) go on about .
It does indeed show the contempt they have for there workforce who by definition try there level best to give the customer a good service somthing royal fails managers ignore in the persuit of earning a bonus payment . Belive this is going to galvanise the workforce into action they see these jumpoed up upstarts as the enemy within and how right they are . And you by your obvious outburst against the unions condone everything royal fail is doing now if thats not a trait of a manager then nothing is shame on you nt

[pinstripe]

"All members in London recently received a letter from management stating that if they took strike action for part of a day they would lose a full day’s pay. They apparently have the right to do this under a law passed in the 1870’s and this goes to show the vindictiveness and just how much contempt and venom Royal Mail has for its work force."

It is action such as this that will stiffen the resolve of striking workers.
If RM were to play a more subtle game, we might be in trouble, but gestures like that show desperation, not strength.

[dvbuk55]

I don't want to labour a point and count how many times London is mentioned in this missive and I do not consider that this is solely a London issue HOWEVER,
I would point out that the PEC met in London in December 2008 and the London Divisional Reps in January 2009 and for many offices outside of London the changes that are taking place elsewhere had already taken place.

The warnings about changes and savings was well after the horse had bolted. So what sort of agreement is going to be retrospective to those of us that have already endured the savings, bullying, harassment, georoute, park and loop, part time duties and summer lapsing and the executive action which has been present for at least 18 months.

Our office had a meeting for the first time in a year and a branch rep turned up for the first time since before the strike of 2007. Our members have been shoved from pillar to post and any union presence totally ignored by the management for years, they still feel let down by the fact that despite supporting the strike in 2007, the end agreement was nothing short of a sell out.

I sincerely hope that the National Ballot is successful and that any agreement is beneficial to us all and that it will be retrospective to those of us who have already endured!

[brothermagrew]

From part of a lovejoy posting:

HALF DAYS
All members in London recently received a letter from management stating that if they took strike action for part of a day they would lose a full day’s pay. They apparently have the right to do this under a law passed in the 1870’s and this goes to show the vindictiveness and just how much contempt and venom Royal Mail has for its work force.

Vindictive and contemptible it may appear, but they are apparently working within the law even an outdated one.


Been puzzling me on just what exactly this law was in the 1870’s. Think I may have identified it as the Apportionment Act of 1870 (short title) or to give its full title:

An Act for the better Apportionment of Rents and other periodical Payments. 1st August 1870.

http://www.opsi.gov.uk/acts/acts1870/pd ... 035_en.pdf" onclick="window.open(this.href);return false;

Of course I could be entirely wrong and if anyone knows different then do let us all know.


You should of course be aware of the following:
Employees who take part in industrial action are likely to be in breach of their contract.

A warning must precede any responses made to individual employees. This may avert the action and will be a significant factor if an employee complains that an employer has acted unlawfully. The warning should be in written form wherever possible, either in the form of a personal letter or a general circular. This should clearly specify the nature of the employer response. Note from above all members in London recently received a letter from management.


What is industrial action?
There is no legal definition of industrial action. However, case law has established that:
 Industrial action must be concerted action against the employer's interests. It does not, therefore, usually cover action taken by an individual
 It must be taken in order to put pressure on the employer in an attempt to achieve some objective
 It will not necessarily involve a breach of contract. For instance, a ban on voluntary overtime has been held to constitute industrial action

When are employees taking part in industrial action?
As a basic guide, employees will probably be taking part in industrial action if they:
 Collectively withdraw their labour
 Refuse to undertake some of their duties
 Refuse to carry out reasonable instructions
 Take part in a sit-in, go-slow or work to rule
 Take part in picketing

Breach of contract
Strike action clearly constitutes a breach of contract. Industrial action short of a strike is less straightforward. This will commonly take the form of a refusal to perform full normal duties. Where these are expressly required by the contract, employees will clearly be in breach. However, the contractual position is less straightforward where such duties are implied into the contract rather than expressly included.

In Sim v Rotherham Metropolitan Borough Council [1986] IRLR 391, the legality of pay deductions being made depended on whether covering for absent colleagues during school hours was a contractual duty. The court held in this case that the teachers were in breach of their contract. Subsequent to this case, the teacher's pay and conditions document now expressly provides that there is a duty to provide cover for absent colleagues. Other relevant case law is Cresswell and others v Board of Inland Revenue [1986] IRLR 190 and MacPherson v London Borough of Lambeth [1988] IRLR 470. In both these cases, the refusal of employees to operate new equipment was held to be a breach of their contracts. However, refusal to carry out genuinely voluntary duties will not be a breach of contract. For example, a blanket refusal to undertake voluntary overtime will not be a breach of contract. It may, however, amount to industrial action.

The contractual position regarding other forms of action, such as working to rule, 'go slows' or a general withdrawal of goodwill can also be unclear because there may appear to be no existing contractual term to be breached. However, the courts have been willing to view any intention to disrupt an employer's business as a breach of contract. In British Telecommunications plc v Ticehurst and Thompson [1992] IRLR 219, the Court of Appeal held that a withdrawal of goodwill was in breach of the implied term to serve the employer faithfully.

Suing for damages
Where an authority suffers loss as a result of industrial action in breach of contract it could sue each individual worker for damages. However, this course of action is not recommended. As well as the detrimental effect it would have on industrial relations, each worker can only be sued for the loss for which he or she was personally responsible, which could be very difficult to establish.

Pay deductions
Case law has established the following principles:
 An employee taking strike action has no entitlement to pay during the periods in which the action occurs
 An employee taking industrial action short of a strike in breach of their contract will:
 have no entitlement to any pay if the authority decides to refuse to accept the partial performance of the contract
 have an entitlement to reduced pay where the employer allows them to continue working
 Where pay deductions are made, these should at all times be reasonable (i.e. a reasonable reflection of the work lost/damages caused)
 Pay deductions made as a response to employees taking part in strike action or industrial action short of a strike are excluded from the unlawful deduction of wages provisions in the Employment Rights Act.

Different rules will therefore apply in different circumstances. Generally, however, good practice will ensure that:
 employees are warned in advance of any pay deductions to be made
 employees covered by the industrial action are given the opportunity to disassociate themselves from the action before the deductions are implemented
 the amount and reason for the pay deduction is explained clearly
 pay deductions are made at the earliest opportunity

Deducting pay for strike action
Employees will not receive pay when they are on strike. This is a straightforward principle applied by all employers. Problems arise however in calculating an appropriate amount of money to deduct. The question will be straightforward for hourly paid staff. They will simply not be paid for those hours during which they are taking part in strike action. It is more difficult for weekly paid or salaried staff. In these circumstances, an employer will need to deduct a proportion of their pay according to the proportion of their working week spent on strike.

The important principle is that the deduction should fairly represent the amount of time an employee spends on strike. In Smith and others v London Borough of Bexley (unreported), striking college lecturers argued that their pay should have been deducted on the basis of 1/365th of annual salary per day spent on strike. The county court however upheld the employer's deductions of 1/190th of annual salary. This latter sum was based on the fact that the lecturer's contractual obligation was to work 38 weeks (i.e. 190 days) per year.

Employers may therefore make deductions for weekly paid or salaried staff on the basis of 1/5 of a week's pay per day spent on strike (for full-time employees). This is the equivalent of 1/260th of a year's pay. This was confirmed by the Court of Appeal in Cooper & others v The Isle of Wight College [2007] EWHC 2831. In relation to schoolteachers, paragraph 3.2 of Section 3 of the Burgundy Book provides that the pay deduction for a day of 'unauthorised absence (e.g. strikes)' should be 1/365th of annual salary. This was confirmed by the Court of Appeal in Smith v Kent County Council [2004] EWHC 412.

Refusal of partial performance
An employer is entitled to refuse to accept a partial performance of the contract of employment offered by employees. This means telling employees that they should only attend work when they are prepared to work in full compliance with their contracts. Until they do so they will have no entitlement to pay.
The extent of the breach is immaterial to an employer's entitlement in law to refuse partial performance, although it is an important industrial relations consideration. This was illustrated in the case of Wiluszynski v London Borough of Tower Hamlets [1989] IRLR 259 in which employees were instructed by their union to refuse to answer elected members' queries. This formed only a very small part of their duties. The authority warned those taking part that until they were prepared to work normally, any work carried out would be regarded as voluntary and they would not be paid. The Court of Appeal upheld the Council's action.

In many cases, employees will, despite such instructions, continue to attend work and claim pay for the work they have carried out. It is, therefore, imperative that employers make their non-acceptance of partial performance clear to employees. Specifically, employees should be made fully aware that any work that is undertaken will be regarded as voluntary and not attract any pay. The courts have issued a warning to employers that they must be able to show that their position was genuine and that employees who continue to work could not have been confused or misled (for example, by being issued with work). The employer is not, however, required to send employees home or prevent them in some other way from performing any work if the employees insist on doing so.

Deducting pay for action short of a strike
In many instances an employer is likely to prefer to allow employees to continue to work during industrial action short of a strike, and instead make an appropriate deduction from their pay. The difficulty with this is the assessment of an appropriate deduction.

In principle, the deduction represents damages arising from the employee's breach of contract. The Court of Appeal in Sim v Rotherham Metropolitan Borough Council [1986] IRLR 391 applied the principle of 'equitable set-off' to pay deductions in these circumstances. In other words, the employee's breach of his or her contract gives the employer a claim in damages. Instead of having to take that claim separately to a county court, the employer can set it off against the employee's wages.

It is often difficult to make a pre-estimate of the damages caused by each individual employee's breach of contract. In practice, deductions are usually restricted to a proportion of pay that fairly recognises the fact that the employee is not performing their full contractual duties. Employers who make a reasonable attempt to do this should withstand any legal challenge.

In Miles v Wakefield Metropolitan District Council [1987] IRLR 193, Mr Miles, who was a registrar of births, marriages and deaths, refused to perform marriage ceremonies on Saturday mornings as part of a programme of industrial action. He carried out his duties normally, including marriage ceremonies on other days of the week. The House of Lords held that the authority was entitled to withhold 3/37ths of his weekly pay as 3 of his 37 weekly hours were worked on a Saturday.

In Royle v Trafford Metropolitan Borough Council [1984] IRLR 184, a teacher refused, as part of a campaign of industrial action, to take classes different from those for which he had been previously responsible or to accept additional children into his classes. The High Court held that a proportionate deduction of 5/36ths of the teacher's salary was a reasonable estimate of the damages incurred. This was based on the number of children excluded by the teacher from the class. The Court noted that no replacement teacher had been employed to teach the children excluded from the class, and that the authority had not been required to meet any claim from parents for failure to educate their children.

When communicating their response to employees, employers should ensure that it is made clear to employees that deductions are made in lieu of damages for their breach of contract. Under no circumstances should deductions be viewed or presented as a penalty for taking industrial action.

Disciplinary action
Under normal circumstances, a breach of contract on the part of an employee will result in disciplinary proceedings. However, such action is generally inappropriate in cases of industrial action and employers are recommended against it. However, warnings about misconduct arising from the industrial action should be given. Where an investigation is required, suspension under the disciplinary procedure may be appropriate.

Whether proceedings under the disciplinary procedure (investigation, hearings etc) should be postponed until the end of the industrial action will depend on what is reasonable in individual circumstances. It is clearly better for action to be taken as quickly as possible, but it may be difficult to do so if, for example, witnesses are unavailable because they are on strike.

Suspension
Formal suspension will not normally be appropriate in cases of industrial action. An employer will not wish to consider suspension on full pay, and suspension without pay will only be permissible where it is specifically allowed for in an employee's contract of employment. It is consequently advisable not to use the word 'suspension' in circumstances where the employer decides to refuse to accept work and sends people home. Suspension under the disciplinary procedure may, however, be appropriate where industrial action has involved a separate disciplinary offence.

Dismissal
Although in general terms the dismissal of employees taking part in industrial action would not give rise to liability for unfair dismissal, employers must be careful of the provisions of TULR(C)A that provide individuals taking part in 'protected' action with some employment protection.
As strike action will almost inevitably constitute a repudiatory breach of contract, employers will be entitled in law to dismiss employees taking part without notice. Similar action can be taken where action short of a strike involves a fundamental breach of contract.

Before carrying out summary dismissals authorities are advised to issue warnings of their intentions as these could possibly bring about a return to work. The employer can dismiss summarily after such warnings, and employees would not be entitled to their notice periods. A dismissal for any type of industrial action can be accompanied by an offer of re-engagement on the terms that the employer specifies. These need not be those which previously applied.

However, notwithstanding the protection afforded by Trade Unions and Labour Relations (Consolidation) Act, a decision to dismiss should be taken only as a last resort as it could have serious industrial relations implications, especially where the action is official.

All very contentious but it is best to know beforehand on what we may be up against and profuse apologies to all and sundry for the long posting.