I thought that the last post would be the final one of the year, but I was sent this document by a reader and felt it was too important not to share.
Today we had another strike from the Connex workers (this one being fully balloted, not a wildcat strike like the last one) and my views remain unchanged from what they were in October.
It is clear from the information provided here, which I have provided links to, that there was always an understanding and intention that all bus drivers would have their terms and conditions automatically transferred unaltered. This was done on the basis that the last time there was a transfer, the same problems were encountered, so they couldn't be allowed to happen again. In fact, so determined were they to make sure there wasn't a repeated scenario, that they were absolutely unequivocal in specifically saying that the transfer had to be of the exact terms and conditions and not just "similar".
You would think that this undertaking would be enough to make it happen, but apparently not. And of course we have had the same thing happen to the scrap metal workers who have mostly lost their jobs because of a failure to provide for a TUPE transfer in the tender.
It is clear that the TTS Minister was either totally incompetent, or purposely engineered this situation to impose the changes.
Either way, I don't believe he is fit for the job, because ordinary people have paid for his mistakes with their jobs and livelihoods. And it frankly makes me angry to hear him be so complacent on the radio, dismissing any suggestions that it is unfair for hard working folk to lose their jobs on Christmas Eve, for goodness sake, on the basis that "the tender process was fair" when it so clearly was not.
And how convenient this all is for the first strikes at the beginning of this period of discontent to be from the bus drivers, rather than a profession that is far harder to demonise, like the nurses. This coupled with the populist upcoming proposition from Constable Rennard on States Members pay is all just part of the overall strategy to create a consensus that public pay increases are unacceptable in any circumstances. And the principle that those in positions of authority have the right to bully those below them and force them to accept worse conditions.
But anyway, have a read of this. It is what the bus drivers hung up at the bus station during their strike and is well worth a read.
Happy new year!
Following the Channel Report news article on the strike and Deputy Lewis, I wanted to address the points that were made there.
The report can be read here - http://www.channelonline.tv/channelonline_jerseynews/DisplayArticle.asp?ID=503084
Here Deputy Lewis says that the dispute is about the overtime arrangements and how it is worked out, which are not part of the workers terms and conditions package, but are part of an "informal agreement". Since it is part of this informal agreement, it does not constitute a part of the transfer, which has been an exact transfer of the standard terms in a week.
This is absolute nonsense and would not stand up in court for one moment.
It is my view that there is absolutely no way it could be considered an "informal agreement" in the legal sense of it.
Why? Simply because for something to be a legally binding contract, it needs to satisfy these three elements -
- There must be a clear agreement (consisting of an offer and acceptance).
- There must be consideration (i.e. what is actually transferred between the parties, e.g. money, goods, a service etc) that has passed between both parties (it cannot just be a one way transfer).
- There must be an intention for it to be legally binding.
Note, that it is NOT a requirement for there to be a written document with a signature on it at any stage. If all contracts had to be written down to be binding, we would spend most of our lives signing papers because we can enter up to dozens of contracts every day. And when things are written down, it is also not a requirement for all of it to be consolidated in one document. All that matters is proving that those three elements are present.
When a bus driver works overtime, all three of those elements are so blindingly obviously there. If a driver worked a few extra hours and was not paid for that work, the employer would be sued and it would fall under breach of contract. Despite it not being written down, it would be implied into any contract anyway because it was obviously a proper arrangement in employment and the usual business practices are adopted.
This is basic contract law. It was not an informal agreement, it was a wider part of their terms of employment and should have been transferred along with the rest of the contract.
"The amounts of overtime that some drivers were doing with Connex do not comply with health and safety."
Well there are a few things to be said there. If Connex were operating under standards that were not health and safety compliant, then TTS should be coming down on them like a ton of bricks. Given the mistakes he made on referring to the law before, I am unsure when he says it isn't compliant as to whether he means that in a strict legal sense or not. There is plenty of things that aren't safe, but aren't covered by health and safety laws yet, but the phrase may still be used to refer to them by laymen (which he so evidently is). Given that no action was taken against Connex, I'm inclined to think that he is not actually saying there has been a breach of the law.
This coupled with the fact that the hours that can be spent behind a wheel for bus drivers is exactly the same for taxi drivers and coach drivers etc so are all of them in breach of health and safety too? If they are, why on Earth is the TTS Minister just focusing on the bus drivers when he should be pursuing all of them?
An interview with one of the bus drivers can be heard here from 02:07:20 - http://www.bbc.co.uk/iplayer/episode/p0122gvs/Matthew_Price_30_12_2012/
It is clear from this that one of the workers primary concerns is keeping the public safe (and of course it would be because if a bus is crashed a driver will be hurt too!) and they are happy to have limits put on them over how many hours they can drive.
Their view is that imposing contract changes on the bus drivers does not address the problem, which can only be fixed by legislation.
If Deputy Lewis was genuine about his supposed desire to limit the hours they could drive, why did he not bring it up in his negotiations with the workers earlier in the year, before the tender was put out? Why did he bury his head in the sand and wait until it was too late and industrial action became inevitable? This was totally irresponsible of him. If he didn't know that such a change would annoy the workers, then we really have to wonder if he is fit to be the minister.
Why more bus strikes?
Back in 2002 when Connex took over the running of the bus service in Jersey it was placed in to the tender documentation that all staff were to be transferred with their terms and conditions unchanged, Connex abided by this with the exception of the shift allowance that had been awarded as part of a pay negotiation prior to them starting the service. The public services committee (now TTS) overruled Connex's claim that they had no knowledge of this pay adjustment and upheld the conditions of tender that stated they had to pay this to relevant staff. A Judicial Greffe enquiry was then carried out into the problems that had been caused over this pay deal that culminated in an official response in Aug 2005. The findings of this were that the wording of the tender was not clear enough and they recommended that the wording should be changed regarding the T&C to state that all staff should be transferred 'with T&C similar or no less favourable , the committee responded by saying that THEY felt this was still open to misinterpretation & that they HAVE ALREADY changed the CONTRACT TO RUN THE BUS SERVICE IN JERSEY to state that any renewal of the contract or any new tender MUST TRANSFER ALL STAFF WITH THE EXISTING TERMS & CONDITIONS SET AT THE INITIAL DATE OF THE TENDER PROCESS, (available at the States assembly web site, document no R.C.58/2005, recommendation 4). The Chief Minister also made a commitment to follow the Cabinet Office Statement of practice for TUPE (Transfer of undertakings & protection of Employees) which protects employees in these types of situations.
FAILURE TO FOLLOW THESE TERMS OF CONTRACT AND PRACTICES HAS NOT ONLY COST ALL CONNEX STAFF THEIR TERMS & CONDITIONS IT HAS ALSO LED TO THE REDUNDANCY OF SEVERAL STAFF AT THE LOCAL SCRAP YARD!
TEACHERS? NURSES? PORT STAFF?
This is why we feel the need to show our anger at the failure of the Transport Minister to protect employee rights and his failure to follow his OWN DEPARTMENTS conditions of contract.
EXTRACT FROM DOCUMENT R.C.58/2005
In the absence of “Transfer of Undertakings: Protection of Employment” Regulations such as are in force in the United Kingdom, in the event that a Committee or Minister has to give an undertaking as to future terms and conditions of employment it should be “on terms no less favourable than those in force on [the operative date].”
The Committee does not understand how the inclusion of the term ‘no less favourable than’ will ensure that the shift allowance experience cannot recur. If the tender documents had included this phrase, the Committee believes the issue could still have arisen and tenderers could have submitted bids on differing terms and conditions but still fulfilled the ‘no less favourable than’ clause. However, the Committee does accept that absolute clarity as to employees’ terms and conditions must be ensured in any future tendering process. To this end, the Committee had already amended the Conditions of Contract for Local Bus Services agreed between the current operator and the Committee (of which the Committee of Inquiry had received a copy) to include a clear statement regarding the operative date. Clause 18.3, which refers to ‘Consequences of Termination’, includes the following conditions –
“ On expiry of the Contract . . . the Committee shall . . . . require in any tender documentation that the incoming service provider submit proposals that ensure that all of the Contractor’s staff . . . . are taken on by the incoming service provider on the same terms and conditions as apply at the date of the issue of any tender documentation. . .”
What this revision does is to ensure that ‘the operative date’ is not some months in the past – as it was during the tender process under review where the 1st August date had been agreed by the States during the Bus Strategy debate – but is current and relevant. The Committee believes this will ensure that all tenderers submit bids on the same basis and any change to terms and conditions can then be accounted for subsequently.
AND THIS IS INFORMATION FROM THE HANSARD REPORTS ON THE STATES WEBSITE
2.8.6 Deputy S.G. Luce of St. Martin:
I do not want to repeat Deputy Southern’s question but maybe I could be a little bit more specific. Would the Minister tell the Assembly whether it is his intention to transfer terms and conditions from Connex to the new buscompany?
Deputy K.C. Lewis:
Yes, as I say, it is all under negotiation at the moment with the preferred tenderer, CT Plus, that all the basic conditions would be carried forward. With regard to pay, I think they would be linked to the 2011 pay scale.
2.6.4 Deputy G.P. Southern:
Using the Minister’s own words, what responsibility does the Minister accept for his failure to learn from the trials and tribulations of the previous contract change and to address and minimise the risks associated with the transfer process this time? There was seemingly a failure. Here we are a fortnight on from the 10th October meeting and we have had a strike. Surely the Minister must agree that he has not succeeded in minimising risks.
Deputy K.C. Lewis:
Under the circumstances, I think things have gone very well. Great play has been made of clause 18.3 on the expiry of the contract or early termination, I will not go through the whole thing, but is taken over on existing terms. But the proviso is: “Provided always that the contractor shall fully co-operate with both the committee and the incoming service provider by providing them both with such employee information as is reasonably necessary for the committee to compile any tender documentation and for bidders properly to price their bids.” That was very slow in forthcoming. There was a document I have here from Deputy Southern as of several weeks ago which is… I believe it could be one of the driver’s documentations. Employee name redacted, address redacted, salary redacted, pensions redacted. This was insufficient information for the bid to be compiled. This is why we have the problems now.
The successful tenderer's submission
6. HCT Group is the parent company of CT Plus Jersey Limited ("CT Plus"). HCT Group's response to the second stage of the tender process was submitted under covering letter dated 14 June 2012. This response was submitted on the basis of a "seamless transfer of staff".
HCT Group stated:
"…we will not change any of the staff terms and conditions we have been made aware of in
the first stage tender documents, for the first nine months of the contract."
HANSARD REPORT 6/11/12
Questions asked by Deputy Geoff Southern and answered by Deputy Kevin Lewis (TTS)
(iii) On what date did the Minister satisfy himself that CT Plus were fully aware of the terms and conditions under which Connex drivers were employed?
(iii) This was undertaken, as for all tenderers, as part of the First Stage Tender evaluations between mid October 2011 and end of January 2012.
(iv) If this was after 14th June 2012, what reliance, if any, could be placed on the HCT Group response of that date, if before, why have those guarantees of no change to terms and conditions terms not been met?
(iv) CT Plus bid for the 2013 Bus Operator’s Contract was on exactly the same like for like basis as the other tenderers. Of course as a charitable Social Enterprise CT Plus’s company’s structure and motivation is different to the traditional corporate model, as it does not have to return a dividend to shareholders, but reinvests any money made back in the community where it is generated to create social good, such as transport for older and disabled people or community groups or training for the unemployed. This aspect of CTPlus’s operations was excluded from the quality / cost tender assessment as it was not part of the evaluation criteria.