Effect given to the recommendations of the committee and the Governing Body - Report No 359, March 2011

Case No 2383 (United Kingdom of Great Britain and Northern Ireland) - Complaint date: 20-AUG-04 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 159. The Committee last examined this case at its March 2008 meeting [see 349th Report, approved by the Governing Body at its 301st Session, paras 254–260]. On that occasion, the Committee noted with regret that little progress had been made with respect to its recommendation to improve the current mechanisms for the determination of prison officers’ pay in England, Wales and Northern Ireland and on the establishment of appropriate mechanisms to compensate private custody officers in private sector companies for the limitation of the right to strike and once again requested the Government to vigorously pursue its efforts in this respect.
2. 160. In communications dated 26 August 2008 and 18 March 2010, the complainant POA submits that the Government has failed to follow the Committee’s recommendations and indicates that the absence of a right to strike coupled with the absence of an acceptable disputes resolution procedure covering all relevant matters continues to have a seriously deleterious effect on the union’s ability to protect its members’ interests. This was particularly evident in respect of the proposals for workforce modernization, where the union feared that the proposals would simply be imposed if no agreement was reached, particularly given that neither strike action nor a binding dispute settlement mechanism was available.
3. 161. The complainant underlines that it does not challenge the Committee’s decision that the right to strike may be restricted or prohibited in the prison service. However, given the use by the Committee of the word “may” rather than “must”, the decision of the Government to prohibit rather than only restrict the right to strike and the choice of several European countries not to do so, the POA considers it legitimate to continue to campaign for the full restoration of its members’ right to take industrial action. In any event, the prohibition of the right to strike can only be legitimate if there are adequate compensatory measures, which the complainant continues to contest.
4. 162. As regards the information provided by the Government reflected in the Committee’s previous examination, the complainant emphasizes that, while it agrees that the parties had reached a draft agreement for the reform of the Prison Service Pay Review Body (PSPRB) that would have involved: the abolition of the remit letter; the appointment of a trade union representative to the selection panel for members of the PRB; a commitment to changing the make-up of those appointed to the PSPRB so that its membership would contain equal numbers of representatives from business, academia and trade unions and provisions which ensured that there would be no undue influence exerted by either party on the PSPRB; and that the agreement was endorsed by the POA conference on 7 and 14 September 2006, it does not accept the contention that the POA sought further clarification of the agreement which amounted to an attempt to renegotiate. The complainant cites a number of letters that it believes show that it was the Government who refused to put the terms of the agreement into place. After the Government stated that it was unable to implement the agreement approved in September, further less attractive proposals were put to the POA which were rejected at a conference held in November 2006.
5. 163. With regard to the mechanism for the determination of prison officers’ pay, the complainant recalls that in England and Wales, prison officers’ pay is not subject to collective bargaining or binding arbitration. Instead the PSPRB has been established to make recommendations to the Secretary of State. The powers of the PSPRB are limited to making recommendations. The Secretary of State has no duty to accept its recommendations, and may override or reject them “as he thinks fit” (Regulation 8 of the 2001 Prison Service Pay Review Body Regulations). In this regard, the complainant denounces the manner in which recommended pay increases have been implemented (in stages resulting in a reduction of the annual increase) and how questions of affordability are systematically used to determine pay.
6. 164. The complainant rejects the Government’s conclusion that the adverse impact of staging PSPRB awards was temporary and minimal and maintains that for the year of the award the staging amounts to a permanent abatement involving sums that are significant for those who sustain them. Moreover, the complainant stresses that the Government has failed to prove that the economic reasons invoked to justify the staging were truly exceptional. In addition, the complainant states that a review of industrial relations in the prison service conducted in 2008, at the Government’s request, found the question of pay withdrawn from its remit. The report had however proposed that there should be a legally binding Trade Union Dispute Resolution and Recognition Agreement, which would provide for a formal process for resolving disputes underpinned by two-stage binding arbitration. The complainant reiterates in this regard that the situation in Scotland provides for procedures for deciding pay disputes, which include legally binding arbitration, thus demonstrating that binding independent arbitration in matters of pay is entirely workable.
7. 165. As regards the independence of the PSPRB, the complainant states that neither the qualities required for public appointments under the Commissioner’s Code of Practice nor the newly approved final selection criteria for PSPRB members listed in the Government’s reply include “impartiality” and “independence” and highlights that the Government rejected its proposal to allow a trade union member to form part of the selection panel for PSPRB members. According to the complainant, the only concession that has been made is the suggestion that appointments made to the PSPRB no longer be made by the prison service, which is also one of the parties before the PSPRB. Instead, the Government has offered that the appointments process be handled by the officials in the core Ministry of Justice, thereby taking the direct employer out of the process. Yet, since the Ministry controls the prison service in every respect, the complainant contends that this is a change of form but not of substance.
8. 166. In addition, the complainant criticizes the remit letter by which the Secretary of State has the power to give directions to the PSPRB as to the considerations to which they are to have regard (Regulation 4 of the PSPRB Regulations). In its view, such directions may fetter the PSPRB’s discretion, exclude considerations to which it would otherwise have regard, and influence the PSPRB recommendations. By contrast, the permitted role of the unions in relation to the PSPRB is confined to that of submitting evidence and making representations (Regulation 5). Since 2001, ministers have decided to issue a remit letter to the PRB each year, while the information imparted by the Government to the Chair is not made available to all parties to the process, thus depriving the unions of an opportunity to address the substance.
9. 167. According to the complainant, the PSPRB has recognized in its 2008 report that faith in its independence has been severely damaged: “We make recommendations: decisions on the remuneration of our remit group rest with Government. However, it has been made clear to us during our visits to establishments and in our discussions with staff and their representatives that the decisions to stage out evidence-based recommendation has damaged confidence in our independence and the review body process. In the context where industrial action may be unlawful, this loss of confidence has undermined the trust of the workforce in arrangements set up by Parliament to examine their pay. We are disappointed, as is our remit group, with the decision not to implement our recommendation in full”.
10. 168. The complainant further raises its concern that pay and working conditions of prison officers in the private sector are far less favourable than in the public sector. While the Government has claimed that consultations had taken place in the private sector, the complainant indicates that this has not included the POA, despite the fact that it has 1,000 members in the private sector and is formally recognized for collective bargaining by one private sector company. The complainant maintains that, contrary to the Government’s contention, it does have collective bargaining rights for prison custody officers in the private sector, and enumerates the establishments where it has sole negotiating rights. It contests the Government’s contention that binding independent arbitration procedures are in place or operational in dispute situations in the private sector with other unions (e.g. by Arbitration, Conciliation and Advisory Service (ACAS)) and adds that the Government had not sought its views when seeking to clarify this information.
11. 169. The complainant adds that developments in the private sector are particularly important at this juncture, in that the Government plans a significant expansion of private sector prisons. Three “titan” prisons holding 2,500 prisoners are being planned, the first of which will be built and operational by 2012. The POA has been informed that the first two titan prisons will be run entirely in the private sector; the third will open to competitive bidding by the prison service. The Government has so far given no assurances that the tender document to be utilized in the competition for the contracts to operate these prisons will contain a requirement that the private companies competing will, if successful, be contractually obliged to provide compensatory mechanisms compliant with the ILO recommendations for the resolving of industrial disputes and the setting of pay rates.
12. 170. In its communications of 19 February 2009 and 2 June 2010, the Government maintains that it has complied with the Committee’s recommendations. With reference to the POA’s 12 months’ notice of withdrawal from the Joint Industrial Relations Procedural Agreement (JIRPA) in May 2007 and the POA strike action on 29 August 2007, which was considered in breach of the JIRPA by the court, the Government regrets that the POA continues to assert the right to strike and still does not appear to accept the Committee’s finding that it is in conformity with freedom of association principles to restrict or prohibit the right to take industrial action in the prison service. The Government indicates that, since the POA refuses to enter into a binding agreement constraining its members’ right to strike, the statutory prohibition of strike action in the prison service (section 127 of Criminal Justice and Public Order Act 1994) had to be brought back into force.
13. 171. As to the proposals for workforce modernization, of which the purpose is to ensure compliance of prison service pay and grading structures with equal pay legislation, the Government indicates that the PRB process for 2008 was delayed to allow for extensive negotiations with the POA over the issue. The POA negotiating team recommended the deal of 19 November 2008 to its Special Delegates’ Conference, which rejected it. Further negotiations in January 2009 have also proven unsuccessful. The Government contests the complainant’s suggestion that, in the absence of an agreement, the proposed changes will be imposed and assures that the issues will be referred back to the PSPRB.
14. 172. The Government recalls that the PSPRB is one of several independent bodies set up to regulate pay for public sector workers, including some who are also prohibited from taking industrial action. These bodies operate according to the same basic model: both parties submit evidence to an independent body comprising members from a wide range of backgrounds, which makes recommendations to the Secretary of State, who retains ultimate discretion over the pay award.
15. 173. As regards the status of the PSPRB awards, the Government asserts that the Committee has explicitly recognized that the Government was not bound to comply with the PSPRB recommendations, and that it has not requested any legislative change but merely to continue to ensure that the PSPRB awards could only be departed from in exceptional circumstances. As previously indicated, one of those circumstances can include affordability, given the potentially significant impact of PSPRB recommendations on public finances.
16. 174. The Government also maintains that, in seven years of operation, the PSPRB pay award has never been abated but merely staged (i.e. implemented in two steps) on two occasions, in response to exceptional pressure on public finances (in 2002, the recommended 6 per cent increase required cutbacks and reduction in recruitment even after staging, and in 2007, macroeconomic reasons such as a high inflation rate imposed the staging of several pay awards in the public service). The Government stresses that the distinction between staging and abating is significant, given that staging only has an impact on the employees’ earnings in the year of the award but not in subsequent years; the adverse impact on the small minority of staff retiring prior to the staged increase is deemed minimal.
17. 175. The Government recognizes that in Scotland, the prison service negotiates pay with its recognized trade unions through collective bargaining, and that, in the absence of agreement, the matter is referred to the ACAS for conciliation and, ultimately, independent binding arbitration. It draws, however, attention to the fact that the Scottish Executive retains the right to overrule the arbitration award for reasons of national security or public interest. While it has never been exercised, the Government contends that this power resembles the discretion of the Secretary of State in relation to the PSPRB award.
18. 176. Concerning the composition of the PSPRB, the Government recalls that appointments to the PSPRB are regulated by the Office of the Commissioner for Public Appointments (OCPA) and must be made in accordance with the Commissioner’s Code of Practice, and that an OCPA appointed independent assessor takes part in the recruitment process and issues a validation certificate. The Government also indicates that the Code of Practice includes a formal complaint procedure for the appointment process, which has never been used by the POA. It adds that, in the latest appointment process, drafts of the person specification (experience, skills and competencies required of candidate), job specification, advertisement and media schedule (to ensure the most diverse field of applicants possible) were placed before the POA and other stakeholders for comment prior to vacancies being advertised. The final selection criteria as specified in the reply have been agreed upon.
19. 177. The Government recalls the measures it has taken since 2005 to safeguard the independence of the PSPRB. For example, the appointment process is now supported by the public appointments team in the Ministry of Justice thus removing all direct involvement of the prison service in the process; in this context, the Government contests the complainant’s assertion that the Ministry of Justice controls the prison service given that the National Offender Management Service (NOMS), of which the prison service forms a part, is an autonomous executive agency of the Ministry entitled to set the terms and conditions of employment applicable to its civil servants. Moreover, the selection panel for appointments is now comprised of the Director of the Office for Manpower Economics (OME), an OCPA independent assessor and the Ministry of Justice HR Director. The participation of the OME was introduced in response to negotiations with the POA, and its independence was implicitly recognized by the POA when it agreed that its Director should chair the panel.
20. 178. As regards the remit letter, the Government states that this power allows the Secretary of State to direct the PSPRB to take specific factors into account in its deliberations. According to the Government, it is a useful mechanism, which does not threaten the impartiality of the PSPRB, as it does not bind it; the weight to be attributed to the considerations is a matter for the PSPRB. By letter of 20 November 2007, following representations from the POA, the Government has agreed, that, while not able to suspend the issue of the annual remit letter permanently, it will not issue it in future years unless specific circumstances require to do so, and that, should this be the case, it would write to the POA to explain the reasons for doing so. The Government concludes with the affirmation that the PSPRB is a statutory body independent of Government which can be seen to act independently.
21. 179. As regards the matters raised by the complainant concerning the private sector, the Government asserts that the POA does not have collective bargaining rights but is one of a number of unions which represents prisoner custody officers. Since pay and employment matters in private sector prisons are the responsibility of providers, the Government has sought and been provided with assurances from each of the three private sector companies currently providing custodial services that appropriate negotiation and dispute resolution procedures are in place. The Government refers to a number of companies which privately contract prison services, the recognized unions, their collective agreements and the provisions relating to dispute resolution and binding arbitration. It concludes that the private sector companies operating prisons have appropriate mechanisms in place to compensate prisoner custody officers in private prisons for the limitation on the right to strike under section 127 of the 1994 Act. Furthermore, it indicates that it has reviewed its procurement provisions for private prisons and henceforth, will require all private contractors to provide compensatory measures to prison custody officers.
22. 180. The Committee takes note of the detailed information provided by the complainant and by the Government. It regrets to note that the relations between the concerned parties do not appear to have improved since its previous examination of the case and that numerous accusations have been made on both sides that inaccurate information has been supplied to the Committee and blame has been placed for the failure of past negotiations. The Committee further regrets that no recent consultations appear to have taken place with a view to improving the current mechanism for the determination of prison officers’ pay in England, Wales and Northern Ireland, and that, accordingly, little progress has been achieved in this regard since March 2008.
23. 181. With regard to the binding nature of PSPRB pay awards, the Committee notes the Government’s statement that matters of public finances are for the Government to decide and that departures from PSPRB recommendations might on occasion become necessary to ensure acceptable award levels. The Committee recalls that the reservation of budgetary powers to the legislative authority should not have the effect of preventing compliance with the terms of awards handed down by a compulsory arbitration tribunal. Any departure from this practice would detract from the effective application of the principle that, where strikes by workers in essential services are prohibited or restricted, such prohibition should be accompanied by the existence of conciliation procedures and of impartial arbitration machinery, the awards of which are binding on both parties [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 597]. The Committee further observes that, according to the complainant’s indication which the Government did not contest, a review conducted in 2008 concerning industrial relations in the prison service proposed that there should be a legally binding Trade Union Dispute Resolution and Recognition Agreement providing for a formal process for resolving disputes underpinned by two-stage binding arbitration. While observing that pay was withdrawn from the remit of this review, the Committee is of the opinion that such an agreement could assist in the normalization of relations with the POA and requests the Government to provide information on the follow-up given to these recommendations. The Committee would also request the Government once again, in the interests of harmonious labour relations with prison officers and with a view to achieving a satisfactory solution to the need to provide for an appropriate mechanism to compensate for the strike prohibition, to reinitiate consultations with the complainant and the prison service in relation to the determination of prison officers’ pay in England, Wales and Northern Ireland and to keep it informed of the progress made in this regard.
24. 182. With regard to the independence of the PSPRB, the Committee notes with regret that the complainant has not been able to obtain representation on selection panel for the Board, despite the Government’s previous declared intention to satisfactorily respond to the POA’s request and recalls that as regards the nature of appropriate guarantees in cases where restrictions are placed on the right to strike in essential services and the public service, restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented [see Digest, op. cit., para. 596].
25. 183. The Committee notes with interest, however, that, following representations from the POA, the Government has agreed that, while not able to suspend the issue of the annual remit letter permanently, it will not issue it in future years unless specific circumstances require it to do so, and that, should this be the case, it would write to the POA to explain the reasons for doing so. The Committee also observes that certain measures that are considered by the Government as appropriate (meetings of Chancellor with the PSPRB chairperson to inform about national economic context) or even as steps forward (e.g. consultation of the POA, during the latest appointment process, on drafts of the person specification in terms of experience, skills and competencies, job specification, advertisement and media schedule, and the agreed final selection criteria for PSPRB members; replacement on the selection panel of the Director of Personnel of the Prison Service with the HR Director of the Ministry of Justice), are considered by the complainant as inappropriate (information about economic context not made available to all parties to the process) or as still insufficient (absence of the qualities “impartiality” and “independence” among the newly approved final selection criteria; closeness of ties between NOMS and the Ministry of Justice). The Committee recalls that in mediation and arbitration proceedings it is essential that all the members of the bodies entrusted with such functions should not only be strictly impartial but, if the confidence of both sides, on which the successful outcome even of compulsory arbitration really depends, is to be gained and maintained, they should also appear to be impartial both to the employers and to the workers concerned [see Digest, op. cit., para. 598]. The Committee therefore requests the Government to reinitiate consultations with the complainant and the prison service with a view to improving the current mechanism for the determination of prison officers’ pay in England, Wales and Northern Ireland by finding mutually satisfactory solutions likely to build up confidence in the process of all parties concerned. The Committee requests to be kept informed in this respect.
26. 184. With regard to prisoner custody officers employed by private sector companies to which certain of the functions of the prison have been contracted out, the Committee notes the conflicting information provided by the parties regarding the procedures in place. The Committee requests the Government to conduct tripartite consultations together with the three relevant private contractors and the recognized trade unions including the POA, in order to take stock of the compensatory measures in place, jointly assess their appropriateness and discuss possible ways of improving the existing mechanisms so as to compensate private custody officers in private sector companies for the statutory prohibition of their right to strike. The Committee requests the Government to keep it informed in this regard and to supply further information in respect of the procurement provisions for private prisons in relation to the requirement of compensatory measures for prison custody officers.
27. 185. The Committee once again requests the Government to pursue vigorously its efforts in respect of all the above and to keep it informed of developments. It refers the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations.