Duty System Review

Officials are receiving many calls from concerned members with regards the Duty System Review that is currently taking place. This newsletter will hopefully answer some of those questions and inform members of the processes and steps that HFRS must follow before any changes are implemented / Imposed. HFRS have gave notice to the FBU that they intend to bring forward 3 duty systems for consideration. These being a 5 watch duty system, a 12 hour shift duty system and the Hampshire Reserve Pool duty system (12 hour). As with any proposals, the FBU will always consider them if brought forward. However,
As we have stated before, changing our existing duty systems is a contractual issue therefore is negotiable and NOT just a consultation exercise and the FBU will NOT agree to any changes without your say so!!!!.
What the Employers have to do…
There are 4 ways an employer can change a contract:
• Express agreement between parties
• Implied individual agreement through conduct of employee
• Union agreement, which is binding on employee.
• Termination of the existing contract and re-employment under a new contract with different terms
To explain each ‘way’ in a bit more detail:

Express Agreement
Agreement must be voluntary - if it can be shown that employee was under duress then they cannot be said to have agreed to the change.
Implied Agreement
This will usually arise where the employer purports to unilaterally vary the contract by imposing new terms and conditions and the employee is seen to accept this by their behavior or ‘acquiescence’. (Acquiesce - to accept or consent to something without protest.)
Collective Agreements
While collective agreements are not normally enforceable as between the employer and the trade union, when they are incorporated into the individual employees contract, they become legally enforceable as between the employer and employee. Once a term becomes incorporated into the individual contract it remains incorporated even if the collective agreement is terminated (unless of course it is clearly replaced by a different term).
Termination of Contract
Where an employer wishes to change terms and conditions of an employee/s and is unable to do so by agreement, the employer may choose to terminate the relevant contract and offer new contracts which include the variation.
In practice this is highly undesirable means of achieving variation of contract and rarely happens as it inevitably leads to conflict, is very damaging to industrial relations and likely to lead to industrial action.
So what can we do?

An employee may respond to the breach of contact in the following ways:
• ‘Stand and sue’ stay and work ‘under protest’ and bring claim for unlawful deductions or breach of contract;
• In the case of a fundamental breach, resign and claim constructive dismissal;
• Where the change amounts to the termination of the old contract and the introduction of a new contract, continue to work under the new contract and claim Unfair Dismissal in relation to the old one;
• Refuse to work the new terms e.g. if the new terms involve different duties or hours.
To explain our options in more detail:
Standing and Suing
The employee works on under protest and brings a breach of contract action for loss arising from the employer’s breach.
Claim Constructive Dismissal
Where employer seeks to impose variation and an employee leaves claiming constructive dismissal there may be a constructive dismissal, which may or may not be unfair depending on the employer’s behaviour.
Remain in employment and claim Unfair Dismissal
Where the employer has either expressly or otherwise terminated one contract of employment and replaced it with another with substantially different terms and conditions the employee may claim Unfair Dismissal even though the employee is still employed by the same employer.
It should however be noted that in both of the above cases employer did not expressly dismiss the employee but the change in contract terms was so fundamental as to amount to termination of the contract.
As discussed Termination of Contract’ above if the employer can establish a fair reason for the changes and engages in meaningful consultation before seeking to impose new contracts and otherwise acts reasonably any such Unfair Dismissal claim may then be unsuccessful as the employer may be found not to have acted unreasonably.
Refuse to Change
If the employee simply refuses to go along with the changes e.g. by refusing to carry out the changed duties, the ball is back in the employer’s court.
If the employer dismisses they are likely to face Unfair Dismissal proceedings and/or wrongful dismissal proceedings.
As can be seen it is not just a case that Humberside Fire & Rescue Service will announce one day that negotiations have been unsuccessful with the FBU therefore as from next month a new duty system will be in place. There are many procedures and stages that Employers have to follow in order to try to seek changes to our existing contracts. The FBU Survey and management’s as yet unpublished survey revealed that FBU members do not want to change from the current duty system and we will ensure that is the position we bear in mind when meeting Humberside Fire & Rescue Service management to discuss alternative duty system proposals.
If you have any questions or immediate concerns please contact one of the Officials below.

Following HFRS’s distribution of a proposed ‘ Personnel Reserve’ Duty System, Brigade officials will be travelling to Hampshire to visit their counterparts to discuss the proposals being put forward. Brigade officials will also be meeting with local firefighters to get their views on how the system works on a day to day basis.
All personnel should now be aware of the personnel Reserve and be submitting their views via the email address provided by management. All responses should also be copied to FBU officials, personnel should take every effort to complete a full and acurate submission on how the feel that the proposals would impact on them and effect their working life especially in comparison to what is currently in place

At the last meeting between management and the FBU regarding the ongoing Duty System Review, Brigade officials were presented with the report produced by the working party that the FBU were not part of. This report detailed how 14 duty systems had been examined and a short list of 3 had chosen for closer scrutiny. These were two slightly varying 5 watch duty systems and a variation of the current duty system. Officials were informed that management were going to be also visiting Hampshire to examine their duty system that is largely based around the current duty system but gives some scope for freeing up the use of spare personnel on an evening and relocating their time for daytime CFS activities etc.

It was once again reiterated to the meeting by management that unless there is clear evidence that an alternative duty system is an improvement on the current one, there would be no change.

Brigade officials also reminded management representatives of the FBU’s position that their survey overwhelmingly showed that Their members who actually work the duty system consider it the most family friendly and do not want any changes made to it.

At the Fire Authority (FA) meeting held on the 29th June a progress report paper
was presented to FA members. It’s content stated that in
total 13 alternative duty systems had been examined by a
working party and from this, a short list of three had been
selected to examine further. The paper also had a
recommendation that the date for implementing any duty
system changes (if there are any) should be put back until
January 2009.

The FBU wrote to the CFO to object as the
paper stated the FBU were part of this working party. This
is definitely NOT the case, the FBU were invited to sit on a
duty system review working party but the only thing
discussed at the three 45 minute meetings we were invited to was
the criteria to be used to compare any other duty systems
against the current one. We certainly have not been
provided with any information on any of these alternative
duty systems and have made repeated requests a copy of
the final report from the working group that we are
supposedly part of.

The CFO clarified the position of the
FBU to Fire Authority members with regards to duty
systems and that the FBU were not signed up to altering
the duty system. What was also welcome, was the reference
made to there having to be substantial evidence produced
in order to recommend any changes to the existing duty
system. The FBU have made their position absolutely clear
to HFRS management and that is: our members have
overwhelmingly shown (98.62%) in our own survey that
they do not want any changes made to their existing duty
system. Remember!!!  To alter the existing Duty System it
is not just a Consultation exercise, it is contractual and
therefore negotiable

 

Following management announcing they intend to progress with their duty system review as part of their IRMP action plan there have now been two meetings that have taken place. The meetings discussed how the review would be managed and what criteria would be used as a toolkit for their review. Management as part of their evidence gathering started by sending out a survey / questionaire to personnel who currently work the wholetime duty system (and against the FBU’s wishes) to some personnel who are not working the duty system. The FBU believe that the most important people who should be included in the survey are only those who are required to work it. In response to mangements survey the FBU have carried out there own survey with some very interesting results. At the time of writing this update out of a possible 592 surveys (as per the wholetime establishment figures) 509 had been returned these returns gave the following results:

• 98.62% of personnel want to keep the existing duty system in its present form
• 99.61% consider the existing duty system family friendly
• a staggering 99.8% think the existing duty system gives a good work / family life balance
• 99.41% thought that if the duty system was altered it would have a negative impact on their work / family life balance
• A large 98.23% stated that if the existing duty system was changed it would cause them considerable problems.
• What should be worrying for management is that a 92.34% stated they would reconsider their own position should the existing duty system change.
• 97.84% stated they thought the ‘fixed’ watch system was beneficial for learning and developement with only 2.16% thinking a variable watch system would be beneficial for Learning and development.
• only 2.95% stated they would consider altering the start and finish times of the existing duty system - giving the main reason as ‘to avoid the rush hour traffic’.

As can be seen from the results, FBU members who currently work the existing Wholetime Duty System DO NOT want it to alter and this will be the position that the Brigade officials will report to management. it is vitally important that as many wholetime shift based personnel have their say on this matter. if you have not yet filled in a survey form then please contact an FBU Official to get one and let your opinions be included in the survey results.

REMEMBER!! these are contractual issues and therfore are for negotiation NOT consultation.