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.

On the basis of the above, if my move to Mixed Fleet is expedited as a result of BASSA's negligence and incompetence, if I was a member could I then sue BASSA for loss of income etc?

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!:)

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.

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.

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.

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.

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.

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.

Very much so, Litebulbs.
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.
I used the word if.

Jaypee,
You are welcome and thanks for the answer, appreciate it.

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.

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.

I support you in your views, but you are in breach of contract if you go on strike. The "golden formula' rule applies for protection from tort for the union involved, but an employer can dismiss for breach of contract, although if it was for taking part in protected industrial action, it would be automatically unfair. The employer could still still pursue damages for the breach of contract by the individual however.

The balance of law is firmly with the employer.

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 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?

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.

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??

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.

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.

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.

Litebulbs
 

This is the nub of the argument. Salary is contractual, staff travel isn't. End of story, please move on.

But staff travel is not a contractual right

Agreed and if ST was removed for all, because of the cost of IA, then there would be no argument, but, well we know the rest.

It will be interesting if the ST policy changes to reflect that if IA is carried out in the future by any department, then the benefit will be removed.

@fincastle84 - this is a thread about the BA dispute, if you are getting bored, the you are under no obligation to read.

..and reinstatement has been offered with loss of seniority, which was turned down by Unite. Seems to me the loss of that is a very dodgy basis for thier proposed legal action.

Also, they need to beware, if ST is considered to be more than a perk then it could well become a benefit in kind and HMRC may want to take another look at its taxable status. This would impact on all airline staff, not just BA CC. How would that go down with the non CC Unite members across the airline sector?

Bottom line? BASSA is out of control in terms of the best interests of all Unite's airline members. Unite need to sort that issue out and maybe we have a solution?

It already is and BA picks up the liability on behalf of it's staff. It is a an agreement made with HMRC that has been in place for many years. But for those who think that BA gives away ST for free it can come as a surprise. Commuters benefit greatly from this perk.

Disciplinary Action of the Top Table
 

Do any of you on here feel that it is highly unlikely that a senior reps committee would have 5 of the 7 members (taken from the other thread) up for gross misconduct? Do you think it was reasonable for BA to refuse ACAS as a mediator at the panels (well, if you believe BASSA's statements)

Litebulbs
 

I'm not bored but there is no point in continuing to replay the same old cracked record. Your needle is stuck in the groove as you've just agreed that ST is non contractural so please change the record.

Moving on myself I'm off to NBO tomorrow on BA65 so I'll catch up after some quality time in the Mara. Hope to have a couple of great flights there & back.:ok:

Likewise for you point fincastle. I do not agree with your position, so can you stop making it please?

LB
 

Would welcome your thoughts on my last post

Why should an exception be made for the BASSA reps (at one time there were demanding that all disciplinaries were dropped)?

The fact that the action taken from disciplinaries varies from no further action, to written warnings, to demotions and sackings suggests that the company is not just looking to sack troublemakers. And the company did suggest that ACAS could be an observer to confirm normal procedures were being followed.

BASSA claim Duncan Holley's sacking was entirely unjustified. Yet the Employment Tribunal had little difficulty throwing out his demand for immediate reinstatement pointing out that he did not have the option to choose when he worked.

Staff travel and other "perks" (such as groundstaff being allowed to finish early etc) are non-contractural.... don't think there's anyone who essentially disagrees with that ??

The company allows them as an expression of it's appreciation that the staff show their goodwill towards the company in how they work.

That is, the staff demonstrate their goodwill by acting in a way which enhaces the company .. perhaps by not insisting on breaks when it might disrupt customers, not claiming overtime for sake of five minutes extra work, using discretionary time when duty hours are under pressure .. etc, etc...


I believe any company is free to withdraw any of these at any time for any individual or group who have shown their goodwill has been withdrawn.



Equally the staff are entitled at any time to decide that they no longer want the companies goodwill and as long as they work within the terms of their contract that should be OK...



It's an open and freely entered "bargain" on both sides, which can cease at any time on the whim of either side.... without penalty to either side.


As for HMRC - at the moment I believe staff travel is one of those things where the employer pays a "notional" tax .. based on the fact that it is a "casual/inconsistent" perk.

If it's decided that staff travel is a right/contractural benefit then I think it would indeed carry implication not only for all BA staff but for all staff in this industry.

I suggest it would move from a notional tax rate paid by the employer to a firmly taxed benefit in kind which would have to appear on the payslip and be taxed directly to the employee (perhaps along similar lines to company cars with private use allowed).

So then the commuters will be even more unhappy .. maybe faced with getting staff travel back but have to pay tax on it as it's used :{

That would also increase the cost of the perk to the company. Right now with the state of the industry I suspect that any attempt to get the employer to absorb any extra cost itself would surely fall on deaf ears.....

Whatever way you look at it and whatever you believe the outcome would be .... it's a can of worms waiting to bite :E

cym
 

JT answered the part on tax. As to your last paragraph, I agree with some of it. I have spent most of my working life at BA (although it has been a while since I left), so I am only too aware of how BASSA operate, but in my old department, "I wish we stuck together like the cabin crew" (although I am sure we used a more industrial term for our flying colleagues on both sides of the door), was said many times.

I am a firm believer in people power (members) and it should be a bottom up arrangement. The ideas come from the floor and the reps put flesh onto those ideas and present them. It does appear that the relationship is the wrong way round. But that is only my opinion from afar.

Not quite right I thought? BA picks up the liability for the "free" tickets, ie the annual 1/2/3 ID100s as they are a free benefit. ID90s do not have any tax paid to HMRC by BA. (it would be a huge subsidy to airborne commuters apart from anything else)

Litebulbs
 

In normal circumstances I'd say "Yes". But we're talking about probably the most dysfunctional leadership team I've ever heard about. We're also talking about a group that clearly runs the branch as their collective fiefdom with no regard for the membership.

I have no doubt that BA's actions in respect of the BASSA leadership has the full tacit support of Unite's full time officials who either cannot or dare not remove them from office. As a rep yourself I'd be a bit surprised if you have any support for Everard, ie the one creating the porn website. I'd be rather shocked if that wasn't regarded as being somewhat offensive to your Union's female members and contrary to your Union's equality and diversity policies. What do you think is a suitable punishment for creating pornographic websites and then using keywords etc to link them to that person's employer? For me, I'd have sacked him, just a lot quicker than it took BA.

I chat to a member of BA's cabin crew who has not gone on strike. This person is not prone to exaggerate or hyperbole, but just wants to go to work, pay the bills, enjoy a quiet life. The level of harrasment routinely experienced at work is truly shocking. My criticism of BA would be more that they appear to be too slow in dealing with the matter. Having said that, cabin crew do appear to be a bit of a sensitive lot. I've already offered my contact a spell working with me to toughen them up a bit.

tax on ST
 

I've answered this point much earlier in this thread, but as it has come up again - the law is that a benefit is taxable on the amount it costs the employer to supply it, not it's market value to the general public. (Company cars are a whole separate issue)

ID90s do not cost the company anything, as the 10% paid covers the cost of admin and meals, and of course the seat would have been unsold anyway.

ID100s do cost the company the cost of admin and food/drink etc, (but not the seat as even though 'firm', staff do still not get on if a passenger comes at the last minute) and BA pays tax on calculated amount on behalf of the employee. By the way, an employer paying an employee's tax bill is also taxable, and that is included in the 'settlement' the employer pays to HMR&C.

LB
 

Thanks for your response, I fully appreicate the its not a happy place for you to be and would like to say thanks for your williness to debate on this subject which is hard for all concerned in terms of retaining their jobs, CC or non flying.

The way I read your last post is - 'well if all airline staff are taxed on ST so that (and this is what its all about IMHO) BASSA CSD's dont have to get behind a trolley and serve passengers' its a price worth paying by the majority (10,0000's) to maintain the staus quo by the minorities (100's). How fair is that?

JAO
 

What about confirmed seats?

JayPee28bpr
 

Don't bring up the Everard incident. I wronged Tiramisu on that one. If there was no dispute, he might have got off, but why get yourself into that position?

As to removal of the reps, I do not agree with you that Unite would in any way support it, for whatever reason. I have never believed in FTO's getting involved at any level, unless asked. For me, any union is a service provider, no more. If businesses offered the same protections to their works councils, that union recognition provided and the state recognised those protections, then why have a union? But the law and big business require a balance, however bad it may be. As others have stated, this dispute will be text book stuff in years to come.

Well, I could go on about unions protecting minorities, but that will get me a proper flaming. However, I would be lying if I did not agree with you. But if it was me, I would not have approached it the way BASSA did. The blitzkrieg at the start did not work.

To Cym re St
 

ID100's are confirmed seats - or at least they can all potentially be if BA offer any confirmed seats on the flight you want. As I said, even if you have a firm seat, it does not mean 'you will definitely get on whether a full fare paying passenger wants it or not' you are simply right at the top of the list to get on in an otherwise empty seat. The good bit is that if you don't get on the return journey, BA have the same duty of care as to a normal passenger, and pay your accommodation costs. Never had to put that to the test mind, we have never failed to get on when we have a firm seat.

BA have it to a fine art, they know their routes and the popularity/busy periods, they don't give out 'firms' unless they are pretty darn sure the seat will be unsold.

LB - top bloke - thanks for your candidness. Wish you could get involved and sort this mess out, your are pragmatic and I salute you!

jao - you airline staff? if so when did you last have an st pax offloaded? Am ex crew and I have never seen it, upgraded yes, offloaded no