BA Strike - Your Thoughts & Questions II
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That is one thing that I have learnt (am still learning as I have just c@cked up on recently!) as a rep; don't offer something that you are 100% sure of and even then, don't promise.
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Posted by LD12986
On the subject of the BASSA reps, I think there's a strong case that they have been grossly negligent in fulfilling their duties, as per my post below:
On the subject of the BASSA reps, I think there's a strong case that they have been grossly negligent in fulfilling their duties, as per my post below:
PS:JayPee, excellent posts btw and yours too Juan Tugoh.
This thread is getting more interesting than ours, wish you could all post on the same thread!
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Tiramisu
Thanks for the compliment.
You can only sue officers of the Union, I think. Unions are effectively Trusts and as such have no legal personality. So you can only sue the officers. I believe you are not a member, so your scope to sue them is less than if you were, ie they probably owe you a lesser duty of care than their members. I say probably, because you are caught by the collective bargaining agreement even though not a member, which confuses things a bit.
As to the officers' liability, there is probably something in the Union legislation that gives them some protection. Otherwise nobody would ever volunteer to be a rep! I suspect legally reps are viewed more as "knowledgeable amateurs" rather than "experts". Full time officials are probably deemed to have a greater level of knowledge (even if they don't in practice). That's why TW joining the BASSA panto act is intriguing. He probably has a lot more to lose if members decided to challenge him over Unite's handling of the dispute. Going after someone like Holley is less likely to deliver a result, unless the claimant can show very obviously that the BASSA reps knowingly put their own personal interest above those of the wider membership.
In general, winning a tort action (eg negligence) is much harder than winning a breach of contract case, and I doubt there is a breach of contract case here against BASSA. If I'm right that you're a non-member, then you personally definitely have no case. Even members would struggle, though. I see little evidence that BASSA has failed to deliver the services it contracts to do so in return for membership fees (I'm assuming this is structured as a contract, which may well not be the case anyway). BASSA might have provided the services badly, but they have provided them. Anyway, legal action is overrated. It's expensive and takes time. By the time you've got a decision you've usually forgotten what the issue was.
You can only sue officers of the Union, I think. Unions are effectively Trusts and as such have no legal personality. So you can only sue the officers. I believe you are not a member, so your scope to sue them is less than if you were, ie they probably owe you a lesser duty of care than their members. I say probably, because you are caught by the collective bargaining agreement even though not a member, which confuses things a bit.
As to the officers' liability, there is probably something in the Union legislation that gives them some protection. Otherwise nobody would ever volunteer to be a rep! I suspect legally reps are viewed more as "knowledgeable amateurs" rather than "experts". Full time officials are probably deemed to have a greater level of knowledge (even if they don't in practice). That's why TW joining the BASSA panto act is intriguing. He probably has a lot more to lose if members decided to challenge him over Unite's handling of the dispute. Going after someone like Holley is less likely to deliver a result, unless the claimant can show very obviously that the BASSA reps knowingly put their own personal interest above those of the wider membership.
In general, winning a tort action (eg negligence) is much harder than winning a breach of contract case, and I doubt there is a breach of contract case here against BASSA. If I'm right that you're a non-member, then you personally definitely have no case. Even members would struggle, though. I see little evidence that BASSA has failed to deliver the services it contracts to do so in return for membership fees (I'm assuming this is structured as a contract, which may well not be the case anyway). BASSA might have provided the services badly, but they have provided them. Anyway, legal action is overrated. It's expensive and takes time. By the time you've got a decision you've usually forgotten what the issue was.
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ST
So taking legal IA is breach of contact. A company withdraws pay from its employees and they know in advance the consequence of their action, yet this is not seen to be a punishment etc etc.
A company warns its employees in advance of the consequences of their action, the withdrawal of staff travel privileges, that are not in any event contractual, and up goes the cry of punishment etc etc..
Had the withdrawal come after the event, with no warning, then possibly a case could be made, but in advance no chance.
While I fully understand those taking IA feel aggrieved, the way to get ST back fully is to accept the offer and over time re-negotiate the return of seniority to it. Assuming of course seniority is still legal after the 2006 age discrimination act is fully implemented in Oct 2011.
A company warns its employees in advance of the consequences of their action, the withdrawal of staff travel privileges, that are not in any event contractual, and up goes the cry of punishment etc etc..
Had the withdrawal come after the event, with no warning, then possibly a case could be made, but in advance no chance.
While I fully understand those taking IA feel aggrieved, the way to get ST back fully is to accept the offer and over time re-negotiate the return of seniority to it. Assuming of course seniority is still legal after the 2006 age discrimination act is fully implemented in Oct 2011.
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How to handle disputes
A large company here provides free transport (buses) to the workplace from all local destinations.
A few years back, the newly formed trade union suddenly started beating the drum demanding "transport allowance" far in excess of the cost of petrol for those that used their own vehicles.
To settle the dispute, the company agreed to give a sum of money to all employees by way of transport allowance.
They also mandated the purchase of a book of tickets to use the company bus service. You can guess how much the tickets worked out at.
So all it did was put a few quid in the pockets of those that could afford their own car and to drive into work.
Yes, these Union reps know how to look after themselves the world over.
A few years back, the newly formed trade union suddenly started beating the drum demanding "transport allowance" far in excess of the cost of petrol for those that used their own vehicles.
To settle the dispute, the company agreed to give a sum of money to all employees by way of transport allowance.
They also mandated the purchase of a book of tickets to use the company bus service. You can guess how much the tickets worked out at.
So all it did was put a few quid in the pockets of those that could afford their own car and to drive into work.
Yes, these Union reps know how to look after themselves the world over.
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As it stands and as I understand it, you will be voluntarily moving to a new contract, so it must be acceptable for you to do so. It is a contract drawn up without negotiation on behalf of BASSA, so if you do not like it, your issues will be with BA.
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JayPee28bpr
Again a well made point. As I see it, you have two parts to one issue. If you forget the detail of staff travel, then the wider point is as Safety Concern states; that you have a right (well you might have) not to be punished for taking part in industrial action.
I understand your point of which right as more right, but disagree about the right to get to work (there isn't one) over the right to strike (there is, albeit within the EU). You can only proceed on what is available in current legislation, even if the specific part is not there. Statute law is always expanded on with case law.
I agree that "it isn't fair or just" has no weight in BA's actions, as it is all about money and that is what will decide this particular issue. If the cost of compensation outweighs the benefit to BA of following its course of action, then staff travel may be returned to its pre dispute level.
As to your last paragraph, as I have said before, I would love to be in the branch meeting when this issue is discussed. I just wish Len Mccluskey was involved more now, as it would improve Les Bayliss's chances to be the next General Secretary of Unite.
I understand your point of which right as more right, but disagree about the right to get to work (there isn't one) over the right to strike (there is, albeit within the EU). You can only proceed on what is available in current legislation, even if the specific part is not there. Statute law is always expanded on with case law.
I agree that "it isn't fair or just" has no weight in BA's actions, as it is all about money and that is what will decide this particular issue. If the cost of compensation outweighs the benefit to BA of following its course of action, then staff travel may be returned to its pre dispute level.
As to your last paragraph, as I have said before, I would love to be in the branch meeting when this issue is discussed. I just wish Len Mccluskey was involved more now, as it would improve Les Bayliss's chances to be the next General Secretary of Unite.
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Safety Concern:
.
I don't feel that BA have much to worry about in regards to fallout from a "human rights breach" even if they were on the receiving end of a negative court decision.
The vast majority of the flying public are well aware of what an almost distasteful use this is of a system that was designed to protect much more significant abuses of individuals.
I believe that anyone who feels BA has absolutely no exposure is looking through rose-colored glasses. However, as has been noted above, BA is making business decisions and even if in two or three years time a positive decision was obtained by BASSA, BA's position still may represent a sound business policy.
What I don't see happening is BASSA membership holding their representatives to account for some absolutely inane conduct. One has only to read Mr. Holley's latest missive which contains five paragraphs of rambling absolutely devoid of anything but "We'll get back to you" to understand that this is a rather militant faction that will accept any abuse from their leaders.
All sorts of interesting issues surrounding this situation, but many not really relevant to the events in the immediate future.
Human rights breach isn't good publicity. But that is what makes this so fascinating. A real time, live lesson in how not to conduct industrial relations
I don't feel that BA have much to worry about in regards to fallout from a "human rights breach" even if they were on the receiving end of a negative court decision.
The vast majority of the flying public are well aware of what an almost distasteful use this is of a system that was designed to protect much more significant abuses of individuals.
I believe that anyone who feels BA has absolutely no exposure is looking through rose-colored glasses. However, as has been noted above, BA is making business decisions and even if in two or three years time a positive decision was obtained by BASSA, BA's position still may represent a sound business policy.
What I don't see happening is BASSA membership holding their representatives to account for some absolutely inane conduct. One has only to read Mr. Holley's latest missive which contains five paragraphs of rambling absolutely devoid of anything but "We'll get back to you" to understand that this is a rather militant faction that will accept any abuse from their leaders.
All sorts of interesting issues surrounding this situation, but many not really relevant to the events in the immediate future.
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Posted by Litebulbs
As it stands and as I understand it, you will be voluntarily moving to a new contract, so it must be acceptable for you to do so. It is a contract drawn up without negotiation on behalf of BASSA, so if you do not like it, your issues will be with BA.
As it stands and as I understand it, you will be voluntarily moving to a new contract, so it must be acceptable for you to do so. It is a contract drawn up without negotiation on behalf of BASSA, so if you do not like it, your issues will be with BA.
Considering the ridiculous dispute we were in due to working one down which has caused little or no hardship at all, the loses suffered by BA as a result of BASSA/UNITE, BA have been extremely fair and reasonable. It could have been far worse, so no qualms there.
However, you didn't read my question. This is what I posted.
if I was a member, could I then sue BASSA for loss of income etc?
Jaypee,
You are welcome and thanks for the answer, appreciate it.
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Litebulbs
This issue is really one of proportionality. An action, ie withdrawal of staff travel seniority, that results in losing preferential queuing rights to cheap holiday tickets, is very different to one that may cause someone to have to give up their job because they can't afford to get to work. So my point essentially is that if Unite wants to make a legal issue of this, they need to focus on those cases where the effect (job loss) is way out of proportion to the underlying cause (legal strike action). Taking a "one size fits all" approach to the issue looks very unlikely to succeed. The Telegraph (not my paper of choice I assure you) is correct to label the current approach as fighting for the right to a cheap holiday in the Caribbean. Separate out those members for whom loss of staff travel really does equate to loss of job, and you can argue constructive dismissal, and from there discrimination by virtue of participating in industrial action. Cheap holidays are not protected in any way shape or form. Non-discrimination for participating in legally called strike action is protected.
Unite would still face serious hurdles in winning such an action, not least the fact that they would effectively be arguing that staff travel was contractual, when there is acknowldgement all round that it isn't. There is also the fact that staff choose to live where they want. BA does not require the likes of Ava to live in S Africa and commute. Against that there is evidence that BA has encouraged the practice of European staff to live in their homeland and commute to London. I doubt Unite would get a precedent-setting decision even if they take this approach. However, they are far more likely to pressure BA to settle, such that no commuter actually loses their job. I would have thought that ought to be a Union objective.
All this of course further raises the question of why Unite made the return of staff travel such an issue in the recent ballot. The pragmatic approach would have been to recommend acceptance of the deal, thereby getting commuter staff travel returned immediately. They could have reserved their right to contest the initial staff travel withdrawal via legal action if necessary. I know BA made cessation of all legal action a condition of the deal, but if the only thing preventing settlement was Unite's wish to clarify this point of law, then BA would have settled. Not doing so would make them the intransigent party, not to mention risking a higher settlement cost if Unite eventually won. Bad tactics in my view.
Agree with you re McLuskey. He must have dirt on lots of people in Unite. No other logical explanation for him being so senior.
Unite would still face serious hurdles in winning such an action, not least the fact that they would effectively be arguing that staff travel was contractual, when there is acknowldgement all round that it isn't. There is also the fact that staff choose to live where they want. BA does not require the likes of Ava to live in S Africa and commute. Against that there is evidence that BA has encouraged the practice of European staff to live in their homeland and commute to London. I doubt Unite would get a precedent-setting decision even if they take this approach. However, they are far more likely to pressure BA to settle, such that no commuter actually loses their job. I would have thought that ought to be a Union objective.
All this of course further raises the question of why Unite made the return of staff travel such an issue in the recent ballot. The pragmatic approach would have been to recommend acceptance of the deal, thereby getting commuter staff travel returned immediately. They could have reserved their right to contest the initial staff travel withdrawal via legal action if necessary. I know BA made cessation of all legal action a condition of the deal, but if the only thing preventing settlement was Unite's wish to clarify this point of law, then BA would have settled. Not doing so would make them the intransigent party, not to mention risking a higher settlement cost if Unite eventually won. Bad tactics in my view.
Agree with you re McLuskey. He must have dirt on lots of people in Unite. No other logical explanation for him being so senior.
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i disagree JayPee28bpr. The Unite statement said
And that is really the crux of the matter. It is about selective punishment of individuals who have done nothing wrong. It is not about money, individual hardship cases because they can no longer get to work cheaply or anything else.
It is purely and simply a very basic point of principle.
The chance of success is much greater sticking to that basic principle than trying to defend someone who should have made sure cheap travel was a contractual item if you depend on it so badly.
6,000 odd individuals have been punished but for what? Going on strike, come on now. You are not in breach of contract by participating in a legal strike. You cannot be dismissed for striking (technically now of course). If you are dismissed it will be an unfair dismissal case.
So unless BA come up with a pretty good argument as to why they punished these individuals without following due process, they will in all likelihood lose the court action.
Unite, which represents 11,000 BA cabin crew, believes that the action by management was a breach of European human rights legislation, and that the concessions were withdrawn without proper disciplinary procedures being followed.
It is purely and simply a very basic point of principle.
The chance of success is much greater sticking to that basic principle than trying to defend someone who should have made sure cheap travel was a contractual item if you depend on it so badly.
6,000 odd individuals have been punished but for what? Going on strike, come on now. You are not in breach of contract by participating in a legal strike. You cannot be dismissed for striking (technically now of course). If you are dismissed it will be an unfair dismissal case.
So unless BA come up with a pretty good argument as to why they punished these individuals without following due process, they will in all likelihood lose the court action.
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The balance of law is firmly with the employer.
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Safety Concerns - You keep saying that CC have "done nothing wrong" and this is because it is objectively lawful industrial action. Any subjective views on the strike are deemed irrelevant.
If the courts find that BA has acted legally in removing staff travel from strikers will you accept that BA too has "done nothing wrong" and any subjective views "it's a point of principle" etc should also be ignored?
If the courts find that BA has acted legally in removing staff travel from strikers will you accept that BA too has "done nothing wrong" and any subjective views "it's a point of principle" etc should also be ignored?
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If BA was found to be in the wrong for removal of staff travel from commuters, could it not get round the constructive dismissal argument by offering relocation to the Heathrow area to those commuters?
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ld should that happen it would be a very sad day for the average worker, wherever they work.
I am not advocating that. I am only saying that it is improper to gloat over someone else's problem, even more so when they have done nothing wrong.
Two wrongs don't make a right
The rights and wrongs of the strike itself will never be settled because its based upon perception of the problem and opinion. you have those who fervently agree and those who fervently disagree. Just like city and united, tory and labour etc. etc..
In a normal conversation in a bar without the excess baggage surrounding this issue if I were to ask whether you agree with indiscriminate punishment, or punishment of those suspected of being guilty but not yet found guilty or punishment of those who held a different view you would almost certainly disagree with it.
You should be looking inward now and ask yourself why you really support punishing those participating in legal industrial action.
Any subjective views on the strike are deemed irrelevant.
Two wrongs don't make a right
The rights and wrongs of the strike itself will never be settled because its based upon perception of the problem and opinion. you have those who fervently agree and those who fervently disagree. Just like city and united, tory and labour etc. etc..
In a normal conversation in a bar without the excess baggage surrounding this issue if I were to ask whether you agree with indiscriminate punishment, or punishment of those suspected of being guilty but not yet found guilty or punishment of those who held a different view you would almost certainly disagree with it.
You should be looking inward now and ask yourself why you really support punishing those participating in legal industrial action.
Fascinating
This has developed in to a fascinating debate. One of the problems that I am having with the debate is the fact that so many issues are intertwined.
I'll have a go and some seperation - maybe someone could improve/develop it?
Unite vs Bassa. Unite is the "Union". It does have a legal presence, and can be sued for its actions, as can its employed Full Time Officials. (FTOs).
For instance, if a TU Official unlawfully induces an individual to breach their contract outside the limited protection, then both the TU and the Official could be sued for damages...............by employers and by other people who have rights.................such as customers with contracts with the airline.
Bassa is a branch, with no legal standing.
Unite have allowed a situation to develop where it has little/no leverage over Bassa. The devolution of power to branches started years ago. Jack Jones was its author.
Bassa reps. The reps as individuals employed by BA have no legal standing as reps. They have a duty of care with the advice they give, but only as individuals. I cannot recall any case of an employee suing a rep successfully, even after woeful advice was given. Over the years, tribunals have passed comment on some pretty poor advice given by reps - but I do not remember any successful litigation.
Employee contract law vs (European) Human Rights. (Interesting that we qualify Human Rights in that way. They are not human rights in China/USA/Russia/India, all great countries with large populations.)
The contract law is quite simple - you sign a contract and are supposed to deliver whatever you promise in the contract. When you breach that contract in the context of IA, there is some, limited protection, (detailed in earlier posts). In the UK context, the notion of a "Right" to strike is, and always has been, quite limited. This has never been about fairness/justice, it is just the law.
The European notion of being able to strike has always been balanced by the rights of other stakeholders. There never has been some sort of absolute right to strike, as Courts have always paid attention to the rights of other stakeholders. Taking it to the extreme, if me exercising my right to strike means that there is a very high probability that someone else will lose their right to life, then the couts will balance the interests.
Perks.
I think we're agreed on this, the ST is a non-contractural perk.
Innocence
We are clearly not agreeing about the use of this word. Just because someone has used the available legal protection in the context of IA, it does not mean that they are "innocent". "Have they done anything wrong?". Different views have been expressed...........
Dismissal.
Any employer can dismiss any employee at any time. A year or two later that employee might/might not receive compensation for that dismissal from a Tribunal if the Tribunal thought the dismissal was unfair. Some dismissals are more unfair than others.
Redress. - if the employee is right
It is very seldom what the employee wants. It is normally financial, and the methods of calculating "loss" are seldom satisfactory.
As to ST, both staff and the TUs have to face 3 ways at once on calculating the loss. 1. Did I lose the retail value of (say) 4 First tickets? 2. If I did, what about the Revenue view of that? 3. What is the cash value of the perk to those who are unable to take advantage of it? - A pregnant female unable to travel - should they receive compensation?
That's as far as my typing takes me. I don't know if it helps??
I'll have a go and some seperation - maybe someone could improve/develop it?
Unite vs Bassa. Unite is the "Union". It does have a legal presence, and can be sued for its actions, as can its employed Full Time Officials. (FTOs).
For instance, if a TU Official unlawfully induces an individual to breach their contract outside the limited protection, then both the TU and the Official could be sued for damages...............by employers and by other people who have rights.................such as customers with contracts with the airline.
Bassa is a branch, with no legal standing.
Unite have allowed a situation to develop where it has little/no leverage over Bassa. The devolution of power to branches started years ago. Jack Jones was its author.
Bassa reps. The reps as individuals employed by BA have no legal standing as reps. They have a duty of care with the advice they give, but only as individuals. I cannot recall any case of an employee suing a rep successfully, even after woeful advice was given. Over the years, tribunals have passed comment on some pretty poor advice given by reps - but I do not remember any successful litigation.
Employee contract law vs (European) Human Rights. (Interesting that we qualify Human Rights in that way. They are not human rights in China/USA/Russia/India, all great countries with large populations.)
The contract law is quite simple - you sign a contract and are supposed to deliver whatever you promise in the contract. When you breach that contract in the context of IA, there is some, limited protection, (detailed in earlier posts). In the UK context, the notion of a "Right" to strike is, and always has been, quite limited. This has never been about fairness/justice, it is just the law.
The European notion of being able to strike has always been balanced by the rights of other stakeholders. There never has been some sort of absolute right to strike, as Courts have always paid attention to the rights of other stakeholders. Taking it to the extreme, if me exercising my right to strike means that there is a very high probability that someone else will lose their right to life, then the couts will balance the interests.
Perks.
I think we're agreed on this, the ST is a non-contractural perk.
Innocence
We are clearly not agreeing about the use of this word. Just because someone has used the available legal protection in the context of IA, it does not mean that they are "innocent". "Have they done anything wrong?". Different views have been expressed...........
Dismissal.
Any employer can dismiss any employee at any time. A year or two later that employee might/might not receive compensation for that dismissal from a Tribunal if the Tribunal thought the dismissal was unfair. Some dismissals are more unfair than others.
Redress. - if the employee is right
It is very seldom what the employee wants. It is normally financial, and the methods of calculating "loss" are seldom satisfactory.
As to ST, both staff and the TUs have to face 3 ways at once on calculating the loss. 1. Did I lose the retail value of (say) 4 First tickets? 2. If I did, what about the Revenue view of that? 3. What is the cash value of the perk to those who are unable to take advantage of it? - A pregnant female unable to travel - should they receive compensation?
That's as far as my typing takes me. I don't know if it helps??
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Safety Concerns
The problem I see with your approach to the issue is that you're talking about the principle of removing staff travel generally, and whether this constitutes "punishment". BA have already effectively conceded the point, though. They offered reinstatement of staff travel, but without seniority, as part of the deal to settle the overall dispute. Unite/BASSA rejected this following a consultative ballot. Note that the Union could have ignored the ballot result and accepted anyway. So the reason striking staff no longer have staff travel privileges is simply down to the fact that members declined the offer including its reinstatement in a ballot, and the Union chose to follow the result even though not strictly obliged to do so.
There is plenty of evidence in the public domain stating "we'd have accepted [the deal overall] if full staff travel rights had been offered". So staff cannot now claim their rejection of the deal to reinstate staff travel was merely incidental, and that the main reasons for rejection were unconnected with staff travel. On top of that, one of Unite's main stated reasons for not recommending acceptance of the offer was that it did not include reinstatement of full staff travel rights. Therefore the reason why strikers don't have any staff travel rights now is because they declined them. BA offered them back. I just don't see how Unite can construct a valid case against BA on the overall principle of removing staff travel, because BA actually hasn't done so.
There is plenty of evidence in the public domain stating "we'd have accepted [the deal overall] if full staff travel rights had been offered". So staff cannot now claim their rejection of the deal to reinstate staff travel was merely incidental, and that the main reasons for rejection were unconnected with staff travel. On top of that, one of Unite's main stated reasons for not recommending acceptance of the offer was that it did not include reinstatement of full staff travel rights. Therefore the reason why strikers don't have any staff travel rights now is because they declined them. BA offered them back. I just don't see how Unite can construct a valid case against BA on the overall principle of removing staff travel, because BA actually hasn't done so.
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I did read your question, just failed to understand it first time; the member bit.
I doubt very much if you could sue for loss of earnings, as you would be bound by the collective agreements in place and I imagine the agreement is between BA and Unite. There would be a vote and the result would decide. That is collective bargaining. As it stands at the moment, the only loss is in energy for working with reduced crewing levels, the rest is hypothetical.
I doubt very much if you could sue for loss of earnings, as you would be bound by the collective agreements in place and I imagine the agreement is between BA and Unite. There would be a vote and the result would decide. That is collective bargaining. As it stands at the moment, the only loss is in energy for working with reduced crewing levels, the rest is hypothetical.
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JayPee28bpr
I do not agree. Just say money was withheld in the form of unlawful deduction from wages due to IA, but for days when the action was not in effect. The business offered to reimburse, but not the full amount, just because it felt the need to sanction an employee group. That would be the same scenario, apart from the minor technicality of a contractual obligation.
You go on strike you loose pay, you return to work you get paid the same as before (unless the union signs a new agreement to allow the return). You go on strike, you loose staff travel, you return to work, your staff travel benefit is reduced.
You go on strike you loose pay, you return to work you get paid the same as before (unless the union signs a new agreement to allow the return). You go on strike, you loose staff travel, you return to work, your staff travel benefit is reduced.
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Litebulbs
You go on strike you loose pay, you return to work you get paid the same as before (unless the union signs a new agreement to allow the return). You go on strike, you loose staff travel, you return to work, your staff travel benefit is reduced.
