PAPER D
Purpose
: for Decision
REPORT
TO THE EXECUTIVE
Date : 25 AUGUST 2004
Title : FIRE BRIGADE DISPUTES
PROCEDURE – ESTABLISHMENT OF EXECUTIVE COMMITTEE
REPORT OF THE PORTFOLIO HOLDER PORTFOLIO
HOLDER FOR FIRE, EMERGENCY PLANNING AND CONSUMER PROTECTION
IMPLEMENTATION DATE : 7 SEPTEMBER 2004
1.
To establish a Committee of the Executive with Terms
of Reference including the determination of disputes submitted by employees
within the Fire and Rescue Service.
BACKGROUND
2.
A National Model Disputes Procedure was agreed between
the Fire Brigades Union and Local Authorities, on a national basis, in March
1998. That Procedure provides for
stepped escalation of disputes raising responsibility from line managers to the
Chief Fire Officer and subsequently to a panel of members of the Fire
Authority. Thereafter the escalation is
to the National Joint Council Disputes Committee and, ultimately, to
independent arbitration.
3.
A dispute has been submitted and needs to be
determined within reasonable time periods.
The submission of the dispute could not realistically have been
anticipated in sufficient time for the decision to establish a committee to be
put on the Forward Plan. We cannot wait
until the publication of the next Forward Plan as to do would be to build in
avoidable delay into the process of determining the dispute.
4.
The role of the Fire Authority in determining
operational disputes submitted by employees is unusual, possibly unique and
does not sit easily with the strategic focus of the Executive. For this reason (and to enable a smaller,
more appropriate sized meeting to determine the issue) it is suggested that an
Executive Committee is established.
5.
The Fire Brigades Union officials who have submitted
the dispute have also expressed a view as to how that dispute should be
determined, which is consistent with this report. Further consultation is
unnecessary.
FINANCIAL/BUDGET
IMPLICATIONS
6.
The cost of an additional meeting will be met from
within budgets held for administering Executive business.
LEGAL
IMPLICATIONS
7.
The dispute procedure sits, somewhat uneasily, in the
context of Section 13 Local Government Act 2000 and the three Functions and
Responsibilities Orders made under the same legislation. Those provisions, taken together, prohibit
the Executive from dealing with the employment and/or terms of conditions of
staff. By contrast, the legislation is quite
clear that responsibility for Fire Authority functions lies with the Executive.
8.
Some assistance is given by paragraph 2 of Schedule 2
of the First Functions and Responsibilities Order of 2000. That Order states that the determination of
an appeal against any decision made by or on behalf of the Authority is a
function which may be the responsibility of the Executive. In that the escalation of the disputes
procedure is an appeal, by way of re-hearing, that provision appears to apply
and allow an Executive Committee to determine the issue.
9.
The wording of the dispute suggests the issue is
principally one of the operational implementation of agreements relating to
terms and conditions and therefore is essentially Executive business. The Terms of Reference suggested for the
Executive Committee are designed to deal with this scenario and also provide
for circumstances where issues are raised which the Executive is not empowered
to determine.
10.
The following Terms of Reference are suggested :
Fire Authority
Dispute Panel
The Fire Authority Dispute Panel is a committee for the purposes of Sections 101 and 102 Local Government Act 1972.
The
Committee shall :
1. Determine procedures for hearing
disputes submitted by employees of the Local Authority employed in the Fire and
Rescue Service, where no such procedures are prescribed by law.
2. Determine such disputes as are
submitted to the Panel.
3. To make recommendations on issues of
relevance to the adoption of procedures or the determination of disputes which
are not within the competence of the Executive.
4. To determine other such matters are
referred to the Panel by the relevant Portfolio Holder, the Chief Fire Officer
or the Fire Brigades Union, from time to time.
The
Panel is a committee of the Executive and membership shall be all of the
members of the Executive from time to time.
Quorum will be three and, where detailed procedures adopted by the Panel
do not provide, the Executive procedure rules will apply.
OPTIONS
11.
The employees submitting the dispute are entitled to
have that dispute resolved. Given that the dispute appears to relate to
Executive Fire Authority functions, the only options are for the Executive to
determine the issue collectively, for a Committee to be formed or for the
Portfolio Holder to determine the issue under delegated powers. The Chief Fire Officer has already played a
role in an earlier stage of this dispute and cannot determine the issue under
his delegated powers.
12.
The National Model Disputes Procedure refers to
members of the Fire Authority determining this stage of the dispute, in
plural. It is therefore suggested that
the Portfolio Holder does not determine this alone. In any event, asking a single member to take on this role is to
place a great burden on that individual and may not inspire the same degree of
confidence that a panel of three members would generate.
13.
It is suggested that the full Executive is better
suited to large-scale strategic decisions which affect several Portfolio
Holders or the Council as a whole. This
is a service specific procedure and a panel of members with a quorum of three
is the most appropriate device to determine the dispute.
14.
The existence of a dispute resolution procedure is, as
stated above, unusual or unique. It
does not sit easily with the Executive governance under the Local Government
Act 2000. As such there is inevitable
some tension in the system, particularly which member body is best placed to
determine disputes.
15.
The decision of members may be challengeable by
Judicial Review, although this step is perhaps unlikely, or indeed may be
rejected by the Courts, as the National Model Disputes Resolution Procedure
allows for two further tiers of escalation, firstly to the Joint National
Committee and finally to independent arbitration. Where an alternative exists, the Courts will be reluctant to
entertain an application for Judicial Review.
Therefore, if any question above the legitimacy of the process arises,
and equally if the substance of the outcome of the dispute is to the
dissatisfaction of those submitting the dispute, the likely action is a further
escalation of the dispute procedure rather than any challenge to the
determination of the Panel.
|
RECOMMENDATIONS 16.
It is recommended that an Executive Committee with
Terms of Reference set out in paragraph 9 is established. |
BACKGROUND
PAPERS
17.
National Model Disputes Procedure
18.
Dispute submitted by Fire Brigades Union (exempt under
Paragraphs 1 and 11, Schedule 12 Local Government Act 1972)
Contact
Point : Richard Hards, Chief
Fire Officer and John Lawson, Head of Legal and Democratic Services
|
JOHN
LAWSON Head of Legal and Democratic Services |
DAVID
KNOWLES Portfolio Holder for Fire, Emergency Planning and
Consumer Protection |