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Employment Rights for 'self-employed' - Unite Union does its stuff
Unite wins employment rights for many 'self-employed' workers

Given some recent issues with 'self employed' this is an interesting development showing how unions can provide serious change. OF COURSE... you would have to be a member... no point joining PROSPECT or UNITE afterwards..

I will be reporting on the Nottingham meeting next week... until then... read this and think about it...!
Quote:13th October 2009
The Court of Appeal has today handed down a landmark judgment in Autoclenz v. Belcher & others. As a result of the judgment it will be much more difficult for employers to take away workers’ employment rights by labelling them “self employed”.
Unite joint general secretary, Tony Woodley, said: “This is a significant day for workers’ rights. For far too long too many employers have tried to take away our members’ employment rights by claiming they are 'self employed' when quite clearly they are not. We have always been able to see through these sham arrangements and are pleased that now the Court of Appeal has too.”
The Court of Appeal upheld Unite’s argument that valeters working for Autoclenz (which had a contract to clean cars for British Car Auctions), were employees and not self employed contractors. Consequently, those valeters now enjoy the whole range of employment rights including:
  • the right not to be unfairly dismissed;
  • holiday pay;
  • national minimum wage;
  • maternity pay; and
  • redundancy pay.
They would have had none of those rights had they been held to be self-employed contractors as Autoclenz had claimed.
Autoclenz tried to take away the rights of the Unite members by including clauses in their contracts that were designed to suggest that the Unite members were self-employed contractors and not employees. The clauses included a supposed right for the valeters to send a substitute to carry out their work and a clause suggesting that Autoclenz did not have to provide work to the valeters and the valeters did not have to do any work that was offered. In reality the valeters could not send a substitute and did have to do work that was offered to them. However they had been told that no further work would be provided if they did not sign the contracts.

The Court of Appeal held that the offending clauses should be disregarded as they did not represent the “true agreement” or the “real bargain” between the valeters and Autoclenz. The clauses were, in effect, a ‘sham’. Assessing the true agreement, the valeters were clearly under the direction and control of Autoclenz and were, as such, employees.

Deborah Franks of Thompsons solicitors, who acted for the Unite members, commented: “In the past employment tribunals have paid too much attention to the written contract in deciding whether or not someone is an employee, although what goes in the written contract is completely controlled by the employer and often does not reflect the reality of the employment relationship. Following this judgment it will be much easier for employment tribunals to look at the reality of the employment relationship and to decide that workers are employees, with all the protections that gives them, even if the employer has labelled them ‘self-employed contractors’.”
Contact: Ciaran Naidoo 07768 931 315
This is a magnificent judgement and finally nails what many of us have been claiming for years - that so called 'self-employment contracts' are seldom worth the paper they are written on.

I would urge any archaeologist (or group of archaeologists) who feel that they too are being constricted by 'sham' self-employment conditions to seek the same remedy as the Unite members. Of course 'class actions' at industrial tribunals are much easier if you go with the support of a trade union than if you take it up as individuals. Another good reason for archaeologists to organise and fight for employment rights. And it often takes a fight to gain your rights as the Unite members proved.
With peace and consolation hath dismist, And calm of mind all passion spent...
Well said Kevin..

The choice is simple... sit and grumble but do nothing
join a union for only 2:50 a week! (less if you are not working... ) and see your rights increase... think about it... pay 2:50 and you have then the power to move pay up (I would guess more than 2:50 a week!)

However, this is NOT JUST ABOUT PAY!!! it is about rights and ensuring that decent employers get decent motivated and skilled workers, so they can do the job better than minimum standard. It is about the workers and the employer both benefiting - and cynical exploitative employers... you know who you are... will find it harder and harder to continue the sham.

Everyone benefits except those that do not deserve it... Wink
The info posted about self-employment is most interesting. I know of one colleague who approached an accountant for help and advice regarding his employment on a self employed basis with the firm I am also working for, and basically the accountant laughed. The feeling was to his mind that we were indeed employed by the firm and not in reality actually self employed. It occurs that we are basically being employed on the cheap by the firm. I know of a few people who work almost exclusively for this firm and have done so for up to 4 years without any sickness, holiday or any other employment benefits! In the light of what has been posted, surely this is illegal?

Unfortunately considering the current economic situation and work being so thin on the ground people working for this firm are not likely to rock the boat. We are the lowest paid workers on the project the firm is currently engaged with. Recently it was discovered that other contractors are getting paid time and half for all work over the basic 8 hour day, where as the self employed archaeologists get only the basic hourly rate. There was much grumbling in the cabins, and a meeting with the core staff of the firm was convened. This meeting basically involved the PO telling staff that work over the 8 hour day carried out during the week was classified as extra work not overtime - only weekend work is overtime. So despite all the rumblings in the cabins nothing has changed , basically because people are not willing to get together and fight for their rights let alone being motivated enough to join a Union. The fear of not having any employment is greater than remaining in a work situation that is exploitative!

Looking at the overall situation, I believe what some archaeological firms are doing is ultimately wrong and would gladly see change to the situation for the benefit of myself and my colleagues, but sadly as far as the project I am working on, I am just a voice in the wilderness (and probably already marked as a troublemaker!)!Sad
Thanks Geli... this is just the sort of exploitative cynical nasty sort of situation that a union could sort out... and the compnay would then have to think twice about even considering not employing people properly.

The reason I am pushing for unionisation - and I have just sent off my application to join... as a self employed person (yes.. you can!) is that once and for all... this is it... either people join and create the life they want... or grumble and accept it... As has been said before... if the choice is to accept the crap... then they will have forfeited the right to complain. Geli... can you contact me off list ( to confirm the employer.... I will then pass this to the IfA with a formal complaint... and if (as I suspect) they are not ROs... then I would request that they at least stop running adverts and join me in public condemnation of the action.
I'd be interested potentially in joining the union, cos as you say for ?2.50 you have a lot of support. I've looked at the Unite website and enquired about joining as a self employed archaeological subcontractor. Did you find the process easy?
The process for joining Prospect ( I will post the link in a few minutes) is very easy. Fill in the form, send direct debit details and you are in.....

You can either apply to join on line or download an application form and put it in the post.

Geli: If there are a number of workers at your place who want details of Prospect, I am sure that the union will send someone to chat to you out of workplace in an environment suited to discussion and debate (normally a pub). You could then raise your specific workplace problem. Here is the really good thing about a union. It is more difficult for management to bully union members for raising legitimate union related problems...if you feel you will get picked on for raising legitimate issues, you definitely need to be in the union...
With peace and consolation hath dismist, And calm of mind all passion spent...
As I have just joined Unite... and also as some people may want to choose

To Join Unite:

For employers name I put self...
Hi David, just wondering since when have Unite had any archaeologists as members? How many archaeologist members do they have at present? Whilst I agree that Prospect have been very quiet on national issues for the last couple of years (noting my previous posts about unions and membership), they do still represent more archaeologists than any other union I believe. I do think they were wrong and daft not to respond to your questions earlier in the year but do you feel that adding a third union to the mix will actually help archaeologists?

It will definitely make union recognition harder, and members will have to move betwen different unions more often to be in the right union for their unit. It will also potentially discourage activism and membership, especially amongst lower-paid/more junior site staff where increased membership and involvement is a major hurdle. If you are moving from unit to unit, and have to change from union to union are you more or less likely to stand as a rep/get involved?

Whilst there are real problems with Prospect they have a track record of helping members in the heritage sector, and are the most-recognised union I believe. They also sorted some ground-breaking employment tribunal cases as well...They do need a wake-up, but to be honest the thing that is really lacking is grass roots support and people prepared to put in their time. Will that suddely be different just because its a different union?

Back on-topic, the court's decision on sham self-employment sounds good, albeit as Unit points out they seem to have got around it. The situation with sham self-employed in archaeology is not good for anyone and hopefully there will be some changes soon especially if 'employees' of these 'units' are prepared to supply evidence.

Hope Nottingham was productive

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