UCU & Decision-Making at ACAS
I just tweeted something about how deeply depressing it is that any UCU announcement at all immediately results in people going completely off the rails and accusing everyone who doesn’t feel exactly like them of engaging in wrongthink, and that is bad, and I want to do less of it — in the hopes of doing more constructive things.
That means tackling what I think are unhelpful rumours or misconceptions about actions being taken by UCU as being ‘undemocratic’. That’s a concept vague enough to encompass any number of issues, and I think there’s an issue with the way most members tend to simultaneously argue that UCU is a representative democracy and that it really should be a direct democracy — but the context in which it’s used in light of last night’s announcement of strikes being paused is a simple accusation: either the General Secretary herself, or someone working for her, has taken a decision that she does not have the power/competence to make, so effectively has paused the strikes ‘ultra vires’, without following proper protocol.
As a legal academic, my immediate reaction to something like this is to perk up like Doug in Up! when faced with squirrels and go “RULES?” and so I’ve done some digging into what I can see from the UCU rules on who can take what decisions and when.
Part 1: NEC
A basic fact about UCU decision-making is that in-between Congresses, most decisions are taken at NEC — and in the case of HE disputes, they’ll be taken by HEC.
UCU’s own rules say the following on this:
“34 Sanctions
34.1 The National Executive Committee has the power to authorise or endorse sanctions including industrial action, having regard to the decisions of the Sector Committees. No other body may do so unless that power has been explicitly delegated to it. Procedures to implement sanctions including the payment of sustentation, shall be made by the National Executive Committee and endorsed by National Congress.”
I had to read this several times because it’s odd to think of industrial action as a sanction, but sure — this seems to give NEC the power to authorise or endorse industrial action, and no other body has the power to authorise or endorse industrial action “unless that power has been explicitly delegated to it”.
Absent from this description of NEC powers is anything about pausing industrial action. Or agreeing to end it, for that matter. And no — it’s not implied that that power also lies with NEC. There’s a distinct difference between starting industrial action, which is a specific demand on union members to forego pay for a specific cause, and ending it — which actually returns union members to their employment status quo. Is this an oversight of our internal rules? (It doesn’t affect the law on industrial action, which I’ll get to below.) That may be the case, but that does not change that I can’t see how only NEC is permitted to pause or end industrial action from reading this.
Part 2: the General Secretary and Officers
I’ve seen a great many tweets in the last 12 hours that boil down to “Jo Grady does not have the power to pause the dispute!” which, as far as I can tell, is correct; even though she is on the NEC per the rules, which has the power to authorise disputes, she’s an ex-officio member… and in any event, NEC decision making power can only be exercised when NEC is quorate, which is 1/3 of NEC:
18.5 Quorum 1
8.5 The quorum in all circumstances, for meetings of the National Executive Committee and any of its subsidiary bodies, shall be one-third of membership of that body.
Beyond that, her role is set out in rule 28, which describes her as “responsible for duties specified by the Rules and Standing Orders of the Union, and duties allocated by the [NEC]”. It adds that she shall act in accordance with the “instructions of the National Executive Committee”, which is unhelpfully vague — but one suspects it means that if NEC votes to approve industrial action, she can’t rock up like a President and issue an executive order to quash it. Fair enough — and that’s not what happened here, so it’s fine.
Is the General Secretary an officer of the union? The Rules seem to suggest that she might be (see rule 20.5, which lists her in the list of all the other ‘offices’ that are elected) but there is a separate document called NEC and Officer Outlines, available in the Members-Only NEC section on the UCU website (and so I won’t link to it here), which says the five officers are only the VP, President-Elect, President and Immediate Past President, and the Honorary Treasurer. Not entirely clear, therefore.
As for the officers of the union, of which we know at least one is involved in the ACAS negotiations (Justine Mercer, the President-Elect), what do they do?
Per their Officer Role:
2.6 Collectively, the officers form a senior elected group to whom decisions are from time to time specifically delegated by another body (normally the NEC or strategy and finance committee).
So — if HEC delegated the power to make decisions on anything that HEC makes decisions on, such as authorising or endorsing industrial action, it looks like such decisions can be taken by the officers. HEC, per various HEC members, has not done that in respect of this action.
Except…. They have. Here’s our ballot:
Apologies this isn’t a sharper image, but the first paragraph after “YOUR VOTE IS SECRET” reads as follows (bold for emphasis):
In the event of a vote in favour of industrial action, UCU’s Higher Education Committee, or President, vice-president from the higher education sector and vice-chairs of the Higher Education Committee to whom that power has been delegated, have the authority, for the purposes of section 233 of the Trade Union and Labour Relations (Consolidation) Act 1992, to make the call for members to take part in industrial action.
We end up looking at the actual law. s233 of TULRA 1992 requires the person calling action to be clearly identified. And s229(3) TULRA adds to this the following:
Key here is the reference to being authorised to continue to take part in industrial action. That implies having the power to take a decision to NOT continue — eg, pause, or stop. And who does the ballot indicate can take that decision?
HEC, absolutely. But also the union’s relevant officers. And it doesn’t specify they need to take that decision as a collective. It looks like any one of the stated officers can call the whole thing off.
ETA: helpful exchanges with Vicky Blake, our current Past President, make it clear that normally, such decisions are taken collectively — with 3 out of 4 of the relevant HE officers agreeing to take decisions on industrial action being the internal requirement, per custom based on UCU guidance materials on local disputes that is also applied to national disputes. At the risk of being extremely lawyerly: the actual ballot, and the law, doesn’t make it 100% clear HE officers are collectively delegated these powers — the cited paragraph makes it clear that officers are distinct from HEC, but doesn’t make explicit that all four together are one designated 'person' — at which point what we’re definitely seeing here is (if officers made the decision to pause!) a visible breach of long-standing custom. That’s worth questioning — but it doesn’t make that decision illegitimate. (And — see also ACAS Annex A below.)
This is also, albeit much more vaguely, what the Officers Outline suggests about their role:
Industrial matters and fighting fund
3.13 The vice president or president elect from higher education is:
* chair of the UK HE negotiators
* a member of UCU’s USS negotiating team, and chair of the superannuation working group — or they may nominate another HEC member to fill this role.
…
3.15 In accordance with agreed procedures, the vice president and president elect will:
* consider requests to approve industrial action ballots and calls for industrial action in their sector (working with the president and relevant sector vice chairs)
* consider requests for access to the fighting fund (working with the officers, as delegated by SFC).
The President-Elect therefore absolutely should be at these negotiations. That seems pretty clear. And even if it’s not clear from this that she can pause them, the ballot paper and trade union law effectively state that HEC delegated to her the power to do exactly that.
Part 3: But what about the negotiators?
A lot of the other concerns expressed are about the absence of the “elected negotiators" at ACAS. To clarify, they mean the folks elected at Congress. The President-Elect and the General Secretary are obviously also directly elected, and have been involved.
But are they meant to represent UCU at ACAS? Instead of the Congress-elected negotiators?
Well, the Rules and the Standing Orders and the NEC and Officers Outline do not say a thing about this, nor does the law. But the General Secretary’s Job Description does:
To represent UCU in its dealings with employers, governmental and non-governmental bodies, key opinion formers and decision makers, other unions and professional bodies.
To take lead responsibility for the lobbying of government and shadow ministers, leading civil servants, key policy staff in the main political parties, TUC and general secretaries of unions, leading officials of post-compulsory sector organisations, NUS, UUK, UCEA, AoC, vice-chancellors and principals, funding councils, research councils, professional bodies, ACAS, CBI and other relevant bodies.
(For the haters, this job description was written for the 2019 election — and so not by Jo Grady herself.)
“Lead responsibility” seems fairly open-ended. And so she absolutely should be involved in meetings with UCEA and ACAS both. But … what about our elected negotiators?
Part 4: JNCHES
My goal in life is to make all this stuff way easier to find, but it turns out there are answers, and they’re actually found in the signed 2013 New JNCHES agreement that UCU and the other 4 unions are all party to.
I direct you to Appendix A of that document:
We know that UCEA called on ACAS. We’re thus clearly in dispute resolution, and not ‘normal negotiation’. When we hit dispute resolution, this document tells us the following:
- Attendance at these dispute resolution meetings “will normally include national officials and lay officers of the union in dispute”. So that would be… the General Secretary, anyone else from HQ, and the Officers.
- As these processes go on, the HE employers will not impose a resolution and the trade unions will refrain from taking any form of industrial action until the procedure has been fully exhausted.
Oh.
“But nobody said we were in dispute resolution with ACAS! And that this is the process we’re following!”
I agree communication could be clearer on a great many things — see my above life goals — but I disagree with the idea that what’s happening here is ambiguous. We’re in dispute. They’ve called in ACAS. And when ACAS involves JNCHES, so UCEA specifically, the agreed expectation is that industrial action is not taken until it’s done. (For all the 2018 lovers — that was ACAS with UUK. Not the same animal, for many reasons!). This decision to honor that expectation could be enacted by the President-Elect, who had it delegated to her by HEC when we balloted for action.
Part 5: So — democracy?
I can’t see how, on the basis of the panoply of rules that intersect here, there was anything ‘ultra vires’ about Jo Grady (or her delegated rep), her staff, and the President-Elect going to ACAS with UCEA and an officer there agreeing to pause industrial action. This is notwithstanding the fact that normally, such decisions to pause action are taken by 3 out of 4 HE officers rather than just 1 or 2 — or indeed, by HEC. (A separate decision will need to have been taken re USS: but given the Joint Statement on those negotiations and the overlap of some employers in both disputes, it makes sense a decision (by a delegated, authorised officer) was taken to avoid some sort of Schrödinger’s strike in UCEA+USS institutions.)
If you’re not happy about how this went in spite of this: sure! I get that, and given what Vicky Blake has shared about normal practice, if I were an HE officer or HEC member, I’d want an explanation of what happened, and which rules the people involved were applying in their view, when they agreed to pause industrial action. (As a lay member, I’d also like that information, but it’s probably more pressing for the people who would ordinarily take that decision).
More generally, I think the UCU rules are all over the place, overly complex, sometimes incomplete or vague, and genuinely in need of a serious revisiting. We fortunately have processes in place to address that — and if you agree with me and you want clearer rules, awesome! Please go to Congress, take a motion about this stuff with you, and make a change — I’ll try to do so as well. (Edited at 7.30 pm to reflect conversation with Vicky Blake).
