Collective Bargaining for a Fair Workplace

Transcription

1 Collective Bargaining for a Fair Workplace Negotiating for Race Equality Public and Commercial Services Union

2 Negotiating for Race Equality Introduction Section 1 The Legal Frame Work - What the Law Says Tackling racial inequalities at work is important because government research has found that even where factors such as education and class are accounted for, there is no logical explanation for racial inequality, except for people acting on prejudices that leads to the discrimination of black workers. Research has found that black workers are over represented in disciplinary, dignity at work, complaints and grievance procedures. As a result many industrial hours are used trying to resolve individual workplace complaints. Whilst individual workers may benefit from personal cases being resolved in their favour, the danger is underlying reasons not being addressed and left unresolved, making it possible for similar complaints to occur time and time again. It is important to identify underlying reasons and seek to resolve them as collective bargaining issues for the benefit of all workers. The aim of the guide is to challenge union negotiators to tackle not just the overt forms of racism such as racially motivated harassment and bullying, but to examine existing structures, practices and processes within the workplace that covertly disadvantage black workers. This guide is split into five sections: Section 1 Section 2 Section 3 The Legal Framework: This section provides a brief overview of the Race Relations Act This legislation provides the legal framework enabling union representatives to talk to employers about racial discrimination. First Steps: Provides a starting point to help you assess the extent to which the employer is committed to race equality. This section includes key questions to ask the employer during negotiations Workplace Challenges & Opportunities Collective Bargaining Issues: This section introduces some of the reoccurring workplace issues that result in disproportionate negative outcomes for black workers. Overview of the Race Relations Act 1976 The Race Relations Act 1976 makes it unlawful to discriminate in recruitment or employment on racial grounds. Generally, discrimination is also illegal in the provision of goods and services. The law applies both to the public and private sector. Racial grounds are recognised as, race or colour; nationality (including citizenship) and national and ethnic origins. In some circumstances, Sikhs and Jews are also classed as racial groups. Race discrimination may be direct or indirect. Direct discrimination means treating a person less favourably on racial grounds, for example by rejecting all applications from non British applicants, or refusing to even consider them for a job. Indirect discrimination occurs when an apparently neutral/ non discriminatory requirement, condition or practice that cannot be justified, disadvantages people from a particular racial group. For example including that a job requires a high level of spoken and written English skills when these skills are not an essential criteria for the job in question. Harassment on grounds of race or national or ethnic origin is a specific offence under the Race Relations Act. Harassment is unwanted conduct that has the purpose or effect of violating a person s dignity, or creating an intimidating, hostile, degrading or offensive environment for that person. Instructing or inducing another person to discriminate is unlawful as is publishing an advertisement or notice that gives a clear intention to discriminate. It is also unlawful to victimize a person because he or she has made, or supported a complaint of racial discrimination or harassment. Public Authorities Including the Civil Service and Non Departmental Public Bodies Section 71 of the Race Relations Act imposes a public sector race equality duty to have due regard to the need to eliminate unlawful racial discrimination and promote equality of opportunity and good relations between different racial groups in the exercise of statutory functions. This applies equally to service provision and employment services. Most public authorities are also bound by specific duties to: Prepare and publish a race equality scheme or policy which states how they intend to meet the general duty in areas of policy and service delivery, including the ability to conduct meaningful equality impact assessments Monitor specific employment procedures and practices by racial groups. The duty to promote race equality also applies to the procurement of goods, facilities and services. Where a public authority s function is carried out solely or partially by an external supplier on behalf of a public authority, the authority remains responsible for meeting the duty. Section 4 Next Steps: This section provides advice on developing a practical course of action for collective bargaining on behalf of black workers. Section 5 Further Information: This section provides signposts to additional guidance and a list of relevant organizations that can provide further advice and assistance.

3 Section 2 First Steps Equal Opportunities Policy & Monitoring Equal Opportunities Policy It is essential to ascertain the extent to which the employer is committed to equal opportunities. Real commitment to equal opportunities and tackling discrimination is demonstrated by an action based systematic strategy. Equal opportunity policies should have a reference to the need for the employer to have a race equality scheme and a mechanism whereby existing policies under review and new policies that are to be introduced are equality impact assessed during the development stage. It is essential that trade union reps understand the importance of equality impact assessments. Training is available from PCS Equality Department. Telephone for further information. Does the employer have an equal opportunities policy? An equal opportunities policy should provide a framework for devising an action plan to address inequality in the workplace. It is important that the union is involved in the formulation of the policy to ensure that: the issues of disadvantage and discrimination that affect people reflected in the policy adequate resources are allocated for implementation there are clear lines of management responsibility for ensuring compliance there is a monitoring mechanism to assess whether the policy is achieving its objective What is the implementation strategy for the equal opportunities policy? Have resources been allocated to cover the cost of the implementation process? Who takes responsibility for the implementation process? Is progress measurable? Have review periods been set? Are all workers aware of the policy and do they understand how it affects them? Does equal opportunity policy contain a clause advising that all policies will be equality impact assessed at its development stages? Monitoring Monitoring is key to the success of negotiations. Data collected will provide evidence of disparities in outcomes. Trade union reps should engage with members about the importance of completing monitoring data. Part of this process is to explain that the data will be confidentially stored and used to help provide improved working conditions. Where possible conduct a joint monitoring campaign with the employer. If monitoring is carried out in the strictest confidence and the reasons for monitoring are explained and staff see that action is taken as result of the analysis of monitoring data a clear message will be sent to staff and job seekers that the organization is serious about equal opportunities. It is therefore important that trade unions hold management to account in terms of how it intends to use the information to make improvements for all staff. Key Negotiating Points Does the employer undertake systematic monitoring of its workforce by ethnicity? This is a legal requirement. Employers should use the census for ethnicity categories. Monitoring is a process of collecting, analysing and evaluating collected data. Information can be ollected in a number of ways, including questionnaires, surveys, consultation and feedback. Where data is collected as part of a recruitment process, it is important that the monitoring data can be detached from application forms, so that anyone who is sifting applications does not have access to the ethnicity data. The final part of the monitoring process is to act on the findings of the data analysis in order o overcome identified disparities. This final point is very important as to fail to act on the findings would reduce monitoring to a tick box exercise of little value. The aim is to focus on improved outcomes. Is the union consulted on monitoring arrangements? How will the monitoring information be shared with the trade union? How will the information be stored Who will have access to the information How will monitoring information be published? What disparities does monitoring data reveal, eg, - Does ethnicity of workforce reflect the local population? - Is this reflected at all levels within the organization - If the answer is no to any of the above, what proposals are there to tackle the disparities. Does the monitoring extend to all employment processes (eg applications for promotion, transfer and training plus success rates for each; grievance and disciplinary action, including results, termination of work relationship. If monitoring in any of the above reveals disparities what work has been undertaken to establish the reasons for the disparities and what measures have been identified to address and eliminate disparities. Have targets been set to eliminate disparities. Are targets realistic? Is progress measurable? An employer cannot claim to be committed to equality of opportunity if it does not carry out monitoring if there is no mechanism to measure the effectiveness of equal opportunities policies and associated initiatives Monitoring is an effective analysis tool that helps the employer to Identify possible inequalities Investigate underlying causes of disparities Devise targeted strategies to remove any unfairness or disadvantage Identify targeted positive action programmes Facilitate a cultural change in the workplace where managers are taught to think about how they can identify and eliminate discriminatory behaviours, processes and decisions.

4 Section 3 Workplace Challenges & Opportunities: Collective Bargaining Issues This section provides you with some ideas as to the most common occurring issues, that have a disproportionate negative outcome for black workers. The checklist provides you with a framework to enable you to start developing a race equality bargaining agenda. Recruitment Black workers are still discriminated against in the recruitment processes. Employers are under a legal obligation to monitor by ethnicity their recruitment practices. As a starting point look at the complement of your workforce. Does it reflect the local demographics? Are particular ethnic groups are over represented in the junior grades and/or absent from management and senior graded posts or certain areas in your workplace. This type of uneven spread can be evidence of existing discriminatory practices. Only a thorough analysis of recruitment monitoring data will reveal the reasons for disparities. Training A TUC report into training for employees found that more black workers than white workers had never been offered training by their employer. Data from the Labour Force Survey reveals the importance of trade unions in negotiating a greater provision of training for workers. Union Learning reps are an important part of this process. There is evidence to demonstrate that were Union Learning Reps/or workplace reps negotiate training agreements, more workers have access to training and development opportunities. It is important to ensure that workers are given the opportunity to access skills that will equip them with competencies to enhance existing skills as well as apply for promotion to a more senior post. Promotion/Acting Up/ Mentoring/Shadowing Despite having the requisite qualifications and experience, research shows that generally black staff are not employed in grades commensurate with their qualifications. They are generally over represented in junior grades posts. Opportunities to act up, accessing to mentoring and shadowing are often created informally and are therefore not equally accessible to all suitably qualified workers, leaving some at a disadvantage. Short Term contracts and Agency Workers The proportion of black workers and other ethnic minorities that are short term contracts or agency staff has been quoted by DBERR as three times higher than the proportion for the population as a whole. Agency staff and temporary workers are vulnerable workers. They have the least rights, compared to permanent workers. They are more susceptible to low pay and redundancy. They are unlikely to get access to training and development opportunities and least likely to progress in the workforce as a result. Does the composition of your workforce reflect the local population? (Information on local demographics is available from the local authority and the census) If the demographics of the workplace is out of sync with local population? Does the employer conduct monitoring to determine if black workers are applying for advertised vacancies. Where are adverts being placed for vacancies? Are steps being taken to target under represented groups of workers:? Are standard application forms being used for recruitment exercises? What training is being given to staff involved in recruitment exercises? Is the training evaluated? Are recruitment and selection procedures consistent with the Equality & Human Right s Commission Code of Practice on Race Equality in Employment Is there a training and development programme? How are training and development opportunities advertised? Is training offered to all staff at all levels equally? Are there disparities in the take up of training opportunities between different groups of staff? What are the reasons for disparities? How is the provision of training monitored - Who applies for training opportunities or development? - Who successfully accesses training and development opportunities? - Who is unsuccessful with training applications? Why? What steps have been taken to encourage greater take up of training and development opportunities? Have staff and Union Learning reps been consulted to ascertain reasons for disparities in outcomes and how to remove barriers to accessing training and development opportunities? Is there a specific policy or scheme for career progression? How are promotion/acting up/mentoring/shadows opportunities advertised? Are all workers eligible to apply for any promotion or acting up opportunities? If not, what reasons are given for limiting access? Is there evidence to show that the employer has followed standard recruitment procedures for promotion? Are job descriptions and person specification available for the job and are applications assessed against the stated criteria? Do applicants who wish to apply for promotion or acting up complete a standard form? Are interviews held before an appointment is made? Are black workers applying for promotion but being consistently turned down? Has any evaluation of promotion applications form been undertaken to ascertain why people are being turned down? Are there training courses for completing application forms and interviews? Is there a union agreement on the employment of temporary contract and agency staff? Is there a policy on and a criteria for the use of temporary and agency staff? What proportion of the workforce is employed on temporary contract or through an agency? Does monitoring extend to staff on temporary contracts? What is the reason for employing these workers on temporary contracts? Are there instances where jobs or a similar role or grade are undertaken by staff on permanent contracts? Are there instances where temporary contract workers are automatically renewed? Are exit interviews conducted with temporary/short term staff? If no, why not? If yes what happens to the information?

5 Section 3 Workplace Challenges & Opportunities: Collective Bargaining Issues Pay and Working Conditions The Government s Ethnic Minority Taskforce report revealed continuing disadvantage faced by ethnic minorities over pay. The disadvantage is partly due to black workers being over concentrated in low paid jobs and also due to informal practices and policies that operate in the workplace which excludes black workers from overtime opportunities, bonuses and other forms of performance related pay. Performance Assessment The danger of any assessment scheme is that they can very easily turn into assessment of a person, based on negative stereotypes, rather than a fair and objective assessment of a post holders ability to carry out the job requirements. Unfortunately this leads to workers being judged on irrelevant criteria which can lead to discriminatory outcomes. In 2003, the Cabinet Office issued a report that produced evidence to show that there is a bias against black workers (and disabled people and part time workers) in the award of performance assessment marks. These assessment marks are important to many as they are sometimes linked to the ability of people to progress, access certain training or attract bonus payments. The recommendation from the Cabinet Office was for performance assessment awards to be audited and equality proofed. Training courses delivered by PCS have provided participants with tools to prepare for the assessment cycle and get the best out of performance assessments schemes. Disciplinary Action The Institute for Employment Studies produced a report in 2002 confirmed that black workers were disproportionately subject to disciplinary action. Unnecessary or unfair disciplinary action undermines the confidence of black workers in the workplace and affects their chances of career progression. It is a legal requirement that employers monitor disparities in outcomes in disciplinary action. The expectation is that they take action to identify reasons for the disparities and take appropriate action to eliminate the disparities. Has a pay audit been conducted? Does the audit reveal any significant pay disparities between different ethnic groups? Are black workers mainly concentrated in low paid jobs? Are black workers over concentrated in front line/ operational posts and absent from policy making areas? Is there a strategy devised aimed at making the workforce more representational at all levels and in all areas of work? How are opportunities for overtime made available to staff? What is the criteria for payment of bonuses? Does everyone have an opportunity to meet that criteria? Are exit interviews held with staff? How is this information used? Is there a performance assessment scheme? When was it last audited and equality proofed? Have all staff (including those responsible for conducting assessments) received targeted training on performance assessments? Are assessments measurable against an agreed job plan based on job description and agreed objectives? What criterion is used for measuring performance? Are objectives measurable? Are objectives properly weighted? Does the worker have the opportunity to comment on the annual assessment report and have the opportunity to raise issues during the year with line manager? Where negative comments or assessments are made, is it mandatory for evidence to be provided to support the assessment? Is the appeal mechanism objective and fair? Do negative assessments affect pay, access to training, promotion opportunities? Are performance assessment schemes monitored by ethnicity? This is a legal requirement. Is disciplinary action being monitored by ethnicity and what does the monitoring reveal? Are there disparities between different groups who are subjected to disciplinary proceedings? Is your employer precise about what is required of managers in managing poor performance and what responsibilities they have to provide ongoing supervision? Is disciplinary action being used as a way of resolving perceived competency issues? Are managers trained in dealing with disciplinary procedures?

6 Section 4 Next Steps Section 5 Further Information Union reps have an important role to play on behalf of members to prevent unlawful race discrimination, promote equality of opportunity and good relations in the workplace. Some or all of the issues that have been outlined in this guide will form part of mainstream policies, procedures, or agreements that have been negotiated with the employer or which the union has been consulted on. Race equality issues are not separate issues that are solely negotiated on by specialists but should be an aspect of all the agreements that are negotiated for members in the workplace. In order to deal with problems of racial discrimination in the workplace and negotiate solutions with management trade union reps will need to take the following steps: (i) Gather Information The different kinds of information needed may be quite extensive and will include: - The views of black members in the workplace on the operation of policies and how they are treated. Current equal opportunities policies and race equality schemes in the workplace and knowledge of how they are working. Workplace-monitoring data on the issues that members have identified. Information from other sources e.g. workplace equality officers, HQ National Race Equality Officer, Equality & Human Rights Commission, etc. (ii) Develop a course of action When all this information is gathered it will need to be evaluated and the following options considered: - What are the major issues to be tackled? What are the possible solutions? What needs to be done to get support for the solutions from the majority of union members? Is there a need for a workplace campaign? What is the likely reaction from management? Possible union responses. Prioritise the most important issues that need to be addressed. (iii) Talk to management When negotiating on race equality issues with management you will need to:- Be clear about the problems you are raising Make sure you have evidence to support any arguments Ensure that the employer is clear that they are under a legal requirement to address issues relating to - Recruitment - Access to training - Promotion opportunities - Over representation of black workers in disciplinary and grievance procedures, including the outcome of complaints - Disparities in performance assessments that impact on pay, promotion opportunities - Reasons why staff leave employment Be clear about what you are trying to achieve Put forward positive solutions Consult the workforce Include black members on the negotiating team; in some cases you may need to bring on people with race equality knowledge and experience Ensure that all members are aware of the outcome of discussions (iv) Trade Union Reps Responsibility It is unlawful for trade unions to discriminate against members by treating them less favourably in the benefits they negotiate (section 11 of the Race Relations Act 1976). This means that you will need to ensure that formal or informal agreements that are reached with the employer are not discriminatory. In order to ensure that this does not happen, you need think about who gains and who loses in any claims that are put forward or agreements that are being proposed and ensure that black workers are not disadvantaged by any of the agreements proposed. Useful Publications Challenging Racism at Work - Using the Law This guide, written for the TUC by lawyers from Thompsons Solicitors, gives a clear and concise summary of the legal points that arise on discrimination cases. (2000), STOCK CODE: ER147; 36pp; ISBN: Tackling Racism a TUC Workbook This is a fully revised and updated version of the original Tackling Racism, which has been so successful in trade union education programmes. The workbook consists of 76 pages of information, activities and materials (2000), Stock Code: ER153; 78pp ; ISBN: Working Against Racism - the role of trade unions in Britain This pamphlet draws on research undertaken in Britain as part of a European study of racism at work. Written by the TUC and Mary Davis at London Metropolitan University, it observes the very real contribution that unions have made to combating racism, but also offers a guide to action to improve anti-racist training and improve representation of black workers (2006); Stock Code; 24pp; ER224 ISBN The following publications were produced by the former Commission for Racial Equality. The publications are still carry their statutory authority. All publications are available to download free from the Equality & Human Rights Commission website Statutory Code of Practice on Racial Equality in Employment A set of recommendations and guidance on how to avoid unlawful racial discrimination and harassment in employment. It outlines employers legal obligations under the Race Relations Act 1976, and contains general advice on the policies they will need to safeguard against discrimination and harassment. This new code replaces the CRE s Code of Practice for the Elimination of Racial Discrimination and the Promotion of Equality in Employment issued in 1984, and took legal effect on 6 April pp. ISBN (English), (Welsh). Code of Practice on the Duty to Promote Race Equality This statutory code gives public authorities practical guidance on the steps they should take to tackle racial discrimination and promote equal opportunities and good race relations. It covers both the general duty and the specific duties. The code s appendices make clear whether, and how, your authority is affected by these duties. Ethnic Monitoring: A guide for public authorities Explains the main principles of ethnic monitoring, focusing on employment and service delivery. Discusses planning, communication, consultation, data collection, analysis, interpretation, and ethnic categories (2002). Useful Contacts Public & Commercial Services Union Equality Department, 160 Falcon Road, London SW11 2LN Tel: equality@pcs.org.uk Trades Union Congress Equal Rights Department, Congress House, Great Russell Street, London WC1 Tel: Equality & Human Rights Commission Specialist advice line for trade union reps on race: Cardiff 3rd Floor, 3 Callaghan Square, Cardiff, CF10 5BT Tel: (general enquiries) wales@equalityhumanrights.com Glasgow The Optima Building, 58 Robertson Street, Glasgow, G2 8DU Tel: (general enquiries) Scotland@equalityhumanrights.com London 3 More Place, Riverside, Tooley Street, London, SE1 2RG Helpline: (general enquiries) Manchester Arndale House, The Arndale Centre, Manchester, M4 3AQ Tel: , Fax: info@equalityhumanrights.com

7 /09 Published by the Public and Commercial Services Union, 160 Falcon Road, London SW11 2LN November 2008 Printed on recycled paper