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Southern Rail deal rejected: what now for the unions?

Out-Law Analysis | 24 Feb 2017 | 4:10 pm | 3 min. read

ANALYSIS: Commuters in the south east of England faced further transport disruption this week when services were cancelled by Southern Rail over industrial action by on-board staff who are members of the RMT trade union.

Users of the beleaguered rail service might have expected some relief after Aslef, the union representing train drivers and conductors, reached a deal with operator Govia Thameslink (GTR) earlier this month over planned changes to the role of train guards. However, members of the larger of the two unions representing staff on the line voted to reject the deal last week, by a narrow margin of 374 votes to 317.

Unions appointed by their members to negotiate with employers on their behalf are not legally bound to put any deal to a vote, but in practice few would run the risk of accepting a deal that their members didn't want or running the risk of being sued by members for misrepresenting what the deal actually means. It's why news of the Aslef-GTR deal, at the beginning of the month, was not presented as a done deal but rather one that Aslef would recommend to its membership.

This means that collective negotiations can be a double-edged sword for employers: if a union, either intentionally or unintentionally, is not sufficiently proactive at setting out to its members why a particular deal should be accepted then a deal which the unions have accepted in principle risks being rejected by members. The fact that GTR's new 'driver controlled operation' (DCO) policy for its trains impacts on two unions, one of which has been particularly vocal in the press about its intention to "stand firm" against the changes, cannot have helped its case.

So what alternatives are available to GTR? Where a recognition agreement is in place with a trade union, an employer cannot immediately go directly to its employees with an offer. The 1992 Trade Union and Labour Relations (Consolidation) Act (TULCRA) prevents employers from offering fresh contractual terms to employees within the bargaining unit, if the purpose is to circumvent collective bargaining agreements. South Yorkshire manufacturing firm Kostal UK Ltd found itself on the wrong side of this law, and a £400,000 protective award, recently after a tribunal held that it had offered unlawful inducements to Unite members in a bid to get them to agree to changes to their pay and employment terms.

GTR is also unlikely to have much recourse to the courts. There are strict requirements in relation to ballots for industrial action with detailed balloting and notification requirements and strict time limits in place. Both Aslef and the RMT initiated industrial action within four weeks of the original ballots, so are now legally permitted to continue to strike - unless it could be argued that Aslef's actions created a fresh trade dispute requiring a new ballot, which seems unlikely.

While some employers have successfully obtained injunctions against strikes in the courts in recent years, the circumstances were very different. For example, potential strikes by British Airways cabin crew in 2010 could only be halted where the employer could prove failures in the balloting process - in that case, because the union balloted employees who were no longer going to be employed at the time of the industrial action. A strike can be halted where there is no trade dispute and the action is purely politically motivated - but this is generally pretty hard to establish, and unlikely here where the unions' concerns over passenger safety have been well documented.

The solution is to put structures and mechanisms in place to encourage better communication between employers, employees and unions, and prevent workplace relations from breaking down to the point of industrial action in the first place. Calls by Conservative MPs for new legislation banning strikes on critical public sectors altogether unless approved by a court will only further polarise these relationships, and could escalate disputes to an even greater extent. A number of unions have already said that they would ignore such laws, while Labour leader Jeremy Corbyn has said that he would fight any proposals along these lines in parliament.

Instead, an up-scaled and more powerful Acas seems like a better option. This could be backed by allowing the government to actively intervene and knock collective heads together where the public interest requires it, or by preventing unions from proceeding with a ballot for strike or other industrial action until they have engaged meaningfully in the process. This approach has already been introduced for disputes between employers and employees, and is much more likely to gain parliamentary support from all political parties.

Diane Nicol is an employment law expert at Pinsent Masons, the law firm behind Out-Law.com.