QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF
PRISON OFFICERS' ASSOCIATION
|- and -
|THE SECRETARY OF STATE FOR
THE HOME DEPARTMENT
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Samuel Grodzinski (instructed by The Treasury Solicitor) for the Defendant
Crown Copyright ©
Mr Justice Newman:
THE VOLUNTARY AGREEMENT
The parties to this agreement are HM Prison Service (the Prison Service), acting on behalf of the Secretary of State for the Home Department and the Prison Officers' Association (POA).
(1) The parties agree that the overriding objectives of this collective agreement shall be that industrial relations are conducted in accordance with the procedures set out in schedule 1 to this agreement. The purpose is to ensure that all collective disputes or grievances whether at local, area or national level are dealt with effectively and differences are resolved without disruption to the operation of the Prison Service.
(2) The agreement is underpinned by a partnership approach to solving industrial relations issues with both parties being committed to the success of the service. The overall intention is to create a climate of relations between the parties in which there will be no occasion or necessity for the POA to consider industrial action.
(3) To achieve these objectives the Prison Service will initiate discussions as soon as is reasonably practical on any proposals for changes to policy or procedures that significantly affect staff at national, area or local level. Relevant material and information will be provided to enable informed and constructive dialogue prior to decisions being taken.
(4) The Prison Service recognises that effective trade union representation is important to the conduct of relationships between management and staff in the service and will provide reasonable facilities to the POA for the recruitment of and communicate with its members.
3. Scope of the Industrial Relations Procedural Agreement
(1) This agreement applies to all collective matters of policy and procedures or the collective application of policy and procedures which have a significant impact on those grades of staff represented by the POA which relate to any of the following matters:
a. Terms and conditions of employment or the physical conditions in which any workers are required to work;
b. Allocation of work or the duties of employment between workers or groups of workers;
c. Matters of disciplinary policy;
d. Membership or non-membership of a trade union;
e. Facilities for officials of trade unions;
f. Machinery for negotiation or consultation, and other procedures, relating to any of the above matters, including the recognition by employers or employers' associations of the right of a trade union to represent workers in such negotiation or consultation or in the carrying out of such procedures.
(2) Any dispute relating to the matters set out in sub-paragraph (1) above shall be resolved using the procedure set out in the IRPA (schedule 1)…"
"(1) The parties intend that this agreement shall constitute a legally enforceable contract.
(2) Notwithstanding the other provisions in this agreement the POA recognise the Secretary of State's right to set the budget and to direct changes in the operation of the Prison Service.
(3) Nothing in this agreement shall prejudice any discretion of the Secretary of State under Statute or effect any of his rights, powers and privileges arising by virtue of any Statute.
(4) In order to facilitate consultation on matters covered within paragraph 3 (a-f) which bear on the work of grades for which the POA is recognised the parties will follow the procedures in the IRPA (schedule 1) from time to time in force.
(5) Consultation on national policy and procedures that directly affect staff will be dealt with through the Prison Department Whitley Council procedures.
(6) Both parties commit to respond promptly to proposals put to them by the other party and to adhere to the timetable set out in the IRPA (Schedule 1).
(7) Both parties accept that national instructions and agreements take precedence over local agreements, instructions and action.
(8) For the purposes of this agreement a matter is exclusive to Prison Service staff if it is a matter in respect of which the Director General of the Prison Service exercises delegated authority.
(9) Pending the outcome of any negotiation, conciliation or arbitration conducted under the provisions of this agreement both parties will maintain the "status quo". The Prison Service will not impose any disputed change whilst the matter is subject to negotiation, conciliation or arbitration, under the provisions of this agreement except in cases of clear operational emergency as sanctioned by the Director General or Deputy Director General.
(10) In the event of a breach of this agreement by the POA, the Prison Service may take action, in court, including seeking Injunctive Relief. In the event of a breach of this agreement by the Prison Service the POA may take action, in court, including seeking a Declaratory Order.
(11) The POA agrees that it will not induce, authorise or support any form of industrial action by any of its members relating to a dispute concerning any matter, whether covered by this agreement or otherwise, which would have the effect of disrupting the operations of the Prison Service. Both parties will use their best endeavours to prevent any form of industrial action.
(12) For the purposes of this agreement the operation of the Prison Service shall include any work that contributes to the operation of the Prison Service.
(13) In the event of a dispute between the parties as to whether action which is in progress, or is or may be intended or proposed, would have the effect of disrupting the operations of the Prison Service, the question will be decided by the Secretary of State whose decision will be final. A written and reasoned explanation will be given to both parties as soon as it reasonably possible".
"I would be grateful if any comments could reach me by 15th November. If you would like to meet to discuss the issue, I would be grateful if you could let me know so that the meeting could be arranged within this timeframe.
Concurrently with consulting trade unions, we are also consulting policy groups on detailed amendments to the PSI's annexes. Once we have your views, and their amendments, we will submit the PSI to the Board for approval".
"Along with others present, i.e. PGA, we raised similar issues such as the legality of the abolition.
Would you please give me an update as to the current thinking within the Service on this issue".
I read this letter as a statement of alignment by the POA with the views expressed by the PGA. It was understood as such by the Defendant. By letter dated 30th December, Mr Seddon responded:
"The draft PSI is currently back with the Prison Service Management Board for its consideration and approval. It is more or less the same as the version attached to my letter of 17 October.
We set out the views of the POA, PGA and PSTUS in the covering submission to the Board.
Without prejudice to its general objections in principle, PSTUS also made some comments on specific details of the PSI; some of which we have accommodated in the revised draft".
In my judgment, this was an appropriate reply to Mr Freeman. His letter called for no more. Additionally he received a copy of a detailed reply by Mr Seddon to Mr Poyner.
"There were concerns voiced [by the POA] around the fact that the PSO impacts on a range of other documents and the POA have not had the opportunity to fully consider that impact. I accepted that criticism and also that this was largely as a result of a judgement that the issue was outside the scope of the Voluntary Agreement. That judgment was, I accepted, arguable and I went on to say that I was prepared to accept that this issue was within the scope of the Voluntary Agreement. Having said that, I also accepted that further in depth discussions should take place in relation to the detail of the PSO".
THE DIFFERENCES BETWEEN THE PARTIES
(1) the possibility that the change might result in training not being done;
(2) the possibility that the change might lead to training being regarded as of marginal significance;
(3) the possible impact of the change on other things;
(4) its desire to wish to discuss the detail;
(5) its perception that the VA had been by-passed;
(6) its belief that the status quo required suspension.
Points (4), (5) and (6) of paragraph 17 above
"The process where one party asks the views/opinions of another party. Where any views/opinions submitted by a party are not accepted then they should be informed of the reason for non acceptance".
For this to have practical and sensible effect the "views/opinions" must be such that they call for a response and reasoned non-acceptance. The POA's "views/opinions" on the PSI were not sufficiently reasoned until after the issue of the PSI.
"The practices or behaviour which had been previously agreed, or at the time the FTA was registered, were custom and practice".
The evidence is not focused on the issues arising from this definition. It is not possible to determine what had been the subject of "agreement", nor to conclude on "custom and practice" at the date of the FTA.
"(11) If no agreement is reached following conciliation either party may refer the matter to the DDG of the Prison Service and the General Secretary of the POA for them to decide whether or not to refer the matter to Arbitration. In the event that neither party refers the matter to arbitration then the management's position will be deemed to have been accepted".
It was not referred.
"The agreement is underpinned by a partnership approach to solving industrial relations issues with both parties being committed to the success of the service….".
28. This application for judicial review is dismissed.
MR JUSTICE NEWMAN: For the reasons given in the judgment which is now handed down, the application for judicial review is dismissed.
MR GRODZINSKI: My Lord, I am grateful. I appear this morning for the defendant in this case. Mr Pilgerstorfer replaces Mr Brown.
One thing that the parties have managed to agree on this occasion is an order arising out of your Lordship's judgment, and a copy ought to be up on the bench.
MR JUSTICE NEWMAN: Thank you. It looks excellent. Thank you very much. I am very grateful. Anything else required of me?
MR GRODZINSKI: Nothing else.
MR JUSTICE NEWMAN: All I would like to say is that I hope the voluntary agreement works in the future. It does seem to me to be a very important part of the continuing good relationship of the Prison Service and the Prison Officers Association. It is full of common sense, and I hope it works.
MR GRODZINSKI: For our part, we echo that.
MR JUSTICE NEWMAN: Thank you.
MR PILGERSTORFER: On our part also.
MR JUSTICE NEWMAN: Thank you both very much.