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Scottish Court of Session Decisions
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URL: http://www.bailii.org/scot/cases/ScotCS/2002/310.html
Cite as: [2002] ScotCS 310

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Scottish Secondary Teachers' Association,Re [2002] ScotCS 310 (06 December 2002)

OUTER HOUSE, COURT OF SESSION

P1246/02

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD NIMMO SMITH

in the Petition of

SCOTTISH SECONDARY TEACHERS' ASSOCIATION

Petitioners;

for

Judicial Review of a decision of the North Lanarkshire Council Joint Negotiating Committee for Teachers

 

 

________________

 

 

Petitioners: Webster; Morton Fraser

Respondents: Moynihan, Q.C., MacLean; Simpson & Marwick, W.S.

6 December 2002
  • This petition for Judicial Review came before me for a First Hearing. The petitioners are the Scottish Secondary Teachers' Association ("the SSTA"), one of the unions representing the interests of teachers employed by education authorities in Scotland. They and other unions are members of the North Lanarkshire Council Joint Negotiating Committee for Teachers ("the Committee"). Answers to the petition have been lodged on behalf of the Committee, the members of which (apart from the SSTA) are North Lanarkshire Council ("the Council"), the Educational Institute of Scotland ("the EIS"), the Professional Association of Teachers ("the PAT"), the National Association of Schoolmasters/Union of Women Teachers ("the NAS/UWT"), the Head Teachers Association of Scotland ("the HAS") and the Association of Head Teachers in Scotland ("the AHTS"). In addition, I granted an unopposed motion on behalf of the EIS under Rule 58.8(2) of the Rules of Court for leave to enter the process as parties with an interest extending beyond their membership of the Committee. The EIS did not lodge answers, but were separately represented by counsel at the hearing. Accordingly, I heard submissions on behalf of each of the SSTA, the Committee and the EIS.

  • The Council is one of the 32 local authorities in Scotland which are the education authorities charged with providing education in schools and other educational establishments in their areas and are the employers of the teaching staff there. Under section 91 of the Education (Scotland) Act 1980 the Scottish Joint Negotiating Committee for School Education was established to consider the pay and conditions of teaching staff employed in providing school education. This Committee was abolished by section 5 of the Standards in Scotland's Schools etc. Act 2000 ("the 2000 Act"). Prior to its abolition, an Independent Committee of Inquiry into Professional Conditions of Service of Teachers chaired by Professor Gavin McCrone was appointed to inquire into, among other matters, the future arrangements for determining teachers' pay and conditions of service. The report of the Committee, known as the McCrone Report, was published in May 2000. The Scottish Ministers established an Implementation Group to consider, among other matters, detailed proposals for the implementation of the McCrone Report's recommendations. The membership of the Group was drawn from all the teacher organisations, employers (through COSLA, the Convention of Scottish Local Authorities) and the Scottish Executive. In January 2001 the Group published an agreement entitled "A Teaching Profession for the 21st Century" ("the Framework Agreement"). Section 5 of the Framework Agreement contains provisions for the establishment of a new national negotiating body, to be known as The Scottish Negotiating Committee for Teachers ("the SNCT"), and "local negotiating committees covering each of the 32 local authorities". By paragraph 5.3 agreement was reached "on the terms of a model local recognition framework and on the conditions of service matters on which local agreements can be concluded". A framework recognition and procedure agreement for use at local level was agreed and is set out at Annex H.

  • On 16 and 23 January 2002 the Council, the EIS, the SSTA, the PAT, the NAS/UWT, the HAS and the AHTS entered into a Local Recognition and Procedure Agreement ("the Local Agreement"), the purpose of which, in terms of paragraph 4 thereof, is "to establish bargaining machinery and a negotiating procedure between the Council and the signatory unions whereby relevant conditions of service can be determined for all teaching staff, educational advisers, educational psychologists and (insofar as employed within educational establishments) music instructors employed by the Council". By paragraph 5 the Council recognised the unions who were signatories to the Local Agreement as the sole bargaining agents for the matters covered by it. By paragraph 6 negotiations are to take place between a management side appointed by the Council and a joint union side appointed by the recognised unions collectively on a pro rata basis, to reflect the respective membership strengths of each of the unions. By paragraph 7 negotiations between the two sides are to be conducted within a committee to be known as the North Lanarkshire Council Joint Negotiating Committee for Teaching Staff. I note in passing that in some of the documents before me the word "Council" is omitted from the name of the Committee. Paragraph 11 provides that a matter shall be agreed by the Committee only if approved by both sides based on a majority of each side present and voting, and agreements reached by the Committee are to be binding on the Council and the signatory unions. The first sentence of paragraph 22 provides:

    • "In the event of any dispute being declared between the two sides, or where there is a failure to agree at school level on any relevant matter, the Council and the signatory unions should seek to resolve the matter, without delay, through discussion in the Committee."
  • At a meeting on 20 May 2002 the Committee agreed, in terms of paragraph 11 of the Local Agreement, that a draft Agreement on Working Time Arrangements for Teachers for Sessions 2002-03 and 2003-04 ("the Working Time Agreement") be approved. The Committee is referred to in it as "JNCT". Paragraph 1.1(b) states that the Agreement applies to teachers in all establishments and network support bases and that a separate version will be available for music instructors. The Agreement must be applied to working time discussions to be held in May 2002. Paragraph 1.1(c) states:

    • "The Agreement covers arrangements for the working week for teachers and describes the issues already agreed at local authority level, and those to be agreed and dealt with at establishment level."

    Paragraph 2.1(a) states that the Agreement covers the ten professional activities identified in Annex D of the Framework Agreement, namely additional time for preparation and correction, parents' meetings, staff meetings, preparation of reports/records etc., forward planning, formal assessment, professional review and development, curriculum development, additional supervised pupil activity, and continuous professional development. Paragraph 2.3 relates to parents' meetings, and indicates that agreement has been already reached at JNCT level that these meetings may be held in the evening and/or end-on to the pupil day subject to consultation with parents. Paragraph 2.4 relates to staff meetings, and states that agreement has already been reached at JNCT level on a number of matters, one of which is that most meetings will be held after the pupil day. Annexe 4 relates to arrangements for staff meetings in secondary establishments, and states, among other things, that all secondary establishments are to schedule 20 hours on site, of which 13 hours are to be after the pupil day and 7 hours to be within the pupil day, but not in the schematic timetable. Subject to these and other matters on which agreement has already been reached at JNCT level, action is required to be taken at establishment level in relation to the number, duration and timing of parents' meetings and staff meetings.

  • I was informed that the Council employs some 4,000 or 5,000 teachers at about 195 schools and other establishments and at network support bases. About 300 of these teachers are members of the SSTA. Agreement has been reached at establishment level on all outstanding matters in terms of the Working Time Agreement, including parents' meetings and staff meetings, in all but five schools. These are Brannock High School, Motherwell, Our Lady's High School, Cumbernauld, St Margaret's High School, Airdrie, Rosehall High School, Coatbridge and Cumbernauld High School, Cumbernauld. I see no need to go into the detail of the outstanding disputes. In brief, the dispute at Brannock High School relates to the timing of departmental meetings, the dispute at Our Lady's High School relates to the timing of parents' meetings, the dispute at St Margaret's High School relates to the timing of professional review and development meetings, the dispute at Rosehall High School relates to the timing of guidance and learning support meetings and the dispute at Cumbernauld High School relates to the timing of principal teachers' meetings, the timing of parents' nights and the use of certain unallocated hours. Written submissions by the two sides to each of these disputes have been prepared. On 4 October 2002 notice was given that a special meeting of the Committee was to be held on 11 October 2002 to discuss these disputes. Although the notice did not refer to paragraph 22 of the Local Agreement, I understand that it was in accordance with that paragraph that it was intended that the disputes be discussed. It was intended that the Committee should consider written and oral submissions by representatives of each of the sides for each of the schools. The meeting did not in fact take place because at an earlier stage of these proceedings Lord Hardie ad interim interdicted the Committee from considering the disputes or disagreements arising on the implementation or attempted implementation of the Working Time Agreement detailed in the agenda contained in the notice of 4 October 2002.

  • The SSTA have brought these proceedings, and obtained interim interdict, because they contend that the decision of the Committee agreeing the working time arrangements for teachers for Sessions 2002-03 and 2003-04 within North Lanarkshire was ultra vires the Committee and accordingly the decision and the Working Time Agreement should be reduced. In order to consider whether this contention is sound, it is necessary to examine the provisions of the Local Agreement relating to the powers of the Committee thereby constituted. Although very little was said by counsel about the proper approach to the construction of a contract, I take the rule to be that the intention of the parties must be ascertained objectively in the context of the circumstances in which the contract was entered into. In the present case, these include the provisions of McCrone Report and the Framework Agreement as well as those of the Local Agreement.

  • I have not been provided with a copy of the McCrone Report, but I understand that one of its principal recommendations related to the working week for teachers. This recommendation was implemented in paragraph 2.2 of the Framework Agreement, in these terms:

    • "2.2 Working Hours: Working Week

    Agreement has been reached on the working week as follows:

    Paragraph 2.3 states that it has been agreed that the process of change needs to be properly managed and therefore supporting phasing arrangements have been developed which involve, among other things:

    "the use of the remaining time (that is, time beyond the combined class contact and preparation/correction allowance) will be subject to agreement at school level and will be planned to include a range of activities, such as:

    additional time for preparation and correction

    parent meetings

    staff meetings

    formal assessment

    preparation of reports, records etc

    curriculum development

    forward planning

    continuing professional development

    additional supervised pupil activity

    professional review and development;"
  • In paragraph 2.4 it is stated that a Code of Practice on Working Time Arrangements has been agreed in order to complement the phasing arrangements and the new structure of the working week, and its text is set out in Annex D to the Framework Agreement. In the Code of Practice there is a passage, in almost identical terms, relating to the use of the remaining time. It also states:

    • "The individual and collective work of teachers should be capable of being undertaken within the 35-hour working week. To assist the process of reaching agreement on collective time, each education establishment will put in place effective mechanisms. Such mechanisms will be determined at local authority level...".
  • The Framework Agreement establishes what is described in the introduction as a "new national and local negotiating machinery". Paragraph 5 relates to future negotiating machinery. The opening passage states:

    • "Agreement has been reached to establish a new national negotiating body and local negotiating committees covering each of the 32 local authorities. The national body will be tripartite and will operate on the basis of consensus. The devolution of areas of conditions of service to local negotiation will increase the capacity to develop arrangements which meet local circumstances, whilst the national body will retain responsibility for those areas of pay and conditions of service which most appropriately should be the subject of national agreement. A note of the devolved arrangements is attached at Annex F."

    Paragraph 5.1 relates to National Arrangements, in particular the constitution of the SNCT as the new national negotiating committee. Paragraph 5.2 relates to local negotiations. The first two sentences provide:

    "Agreement has also been reached on the establishment of local negotiating committees for teachers. These Committees will have powers to vary certain devolved, [sic] conditions of service agreements and to reach agreements on a range of matters not subject to national bargaining."

    Annex F contains similar provisions and contains lists of national matters and devolved matters. Paragraph 5.3 provides:

    "Agreement has been reached on the terms of a model local recognition and procedure framework and on the conditions of service matters on which local agreements can be concluded. A framework recognition and procedure agreement for use at local level has been agreed and is set out at Annex H."
  • I understand that the framework local recognition and procedure agreement set out in Annex H has, with some local variations, been adopted for use in all the education authority areas in Scotland. By paragraph 1 thereof the relevant Council recognises the EIS, the SSTA, the PAT, the NAS/UWT, the HAS and the AHTS as the sole representatives of the teaching staff, advisers and educational psychologists employed by the Council on all matters relating to conditions of service as defined in paragraph 3, which contains a list of fourteen matters, of which the first seven, by way of example, are: cover agreements, appointment procedures, particulars of employment, expenses of candidates for appointment, transfer of temporary teachers to permanent staff, promotion procedures and staff development arrangements. Paragraph 4 states:

    • "The purpose of this Recognition

    and Procedure Agreement is to establish bargaining machinery and a negotiating procedure between the Council and the signatory unions whereby relevant conditions of service can be determined for all teaching staff, educational advisers and educational psychologists."
  • The Local Agreement in the present case followed, with some modifications, the framework local recognition and procedure agreement in Annex H. The list of matters relating to conditions of service set out in paragraph 3 is the same, except that there is an additional item for working time arrangements. Paragraph 4 is the same, with the addition of a reference to music instructors, insofar as employed within educational establishments. A number of paragraphs have been added which relate to the composition and proceedings at meetings of the Committee. Of more significance for present purposes, a paragraph has been added which does not appear in Annex H, in these terms:

    • "17 In addition to the principal function of constituting a forum for the negotiation of relevant conditions of service, the functions of the Committee shall include consultation on other relevant matters, it being declared that, in the performance of such consultation function, any conclusion reached by the Committee shall have the status of, only, a recommendation and shall not be binding on the parties to this Agreement."
  • Counsel for the petitioners submitted that on a proper construction of the Framework Agreement there is a distinction to be made between matters which fall to be determined at "county" level (as he termed it) and matters which fall to be determined at establishment (i.e. school) level. The primary function of the Committee in terms of the Local Agreement, he submitted, is the creation of mechanisms by which each establishment can and will carry out its local negotiating procedures. The devolved matters referred to in paragraph 5 of the Framework Agreement and listed in Annex F are subject to agreement at local, i.e. establishment, level. The local negotiating committees, he further submitted, referred to in paragraph 5.2 of the Framework Agreement are committees at establishment level. This is consistent with the approach in paragraph 2 and with the provisions of Annex D relating to participation by staff at establishment level. Accordingly, at "county" level there may be agreement about the procedures to be followed in schools, but discussions on the merits of any matter are to take place purely at school level. This is, he submitted, consistent with paragraph 4 of the framework local recognition and procedure agreement in Annex H, the effect of which is that what is to be established at "county" level are procedures on what may be discussed at school level. The Committee is accordingly confined to agreeing the machinery and procedure for discussions at establishment level. In the event of a deadlock, it is the responsibility of the Committee to devise a procedure by means of which the deadlock may be resolved. It might thus act as arbiter or court of last determination. Paragraph 17 of the Local Agreement in the present case must be read in light of paragraph 4, so that the functions of the Committee under paragraph 17 are ancillary to those under paragraph 4. Paragraph 22 provides machinery in the event of a failure to reach agreement at school level. The purpose of the Local Agreement is to give effect to the Framework Agreement, and to make the function of the Committee at the first instance to determine school procedures, but not to take any decisions in advance about the merits of discussions which may take place in each establishment.

  • Counsel went on to submit that in approving the Working Time Agreement the Committee acted ultra vires. The Working Time Agreement purports to record that agreement has already been reached at Committee level about various matters, including matters in connection with parents' meetings and staff meetings. Counsel said that staff meetings are of particular concern, because it is devolved to each establishment to decide how teachers' collective remaining time is to be spent. The purported agreement that most staff meetings are to be held after the pupil day precludes the possibility of negotiation at school level of meetings at times which will enable teachers to go home, for example, after lunch. Of the five disputes referred to above, counsel no longer sought to suggest that the dispute at St Margaret's High School was affected by the ultra vires nature of the Working Time Agreement. The dispute at each of the other four schools, however, was affected by matters on which agreement had already purportedly been reached at Committee level. It was the fact that the Committee was to consider these four disputes that gave rise to the need for the present application for reduction of the Working Time Agreement.

  • Senior counsel for the Committee began by explaining the considerations affecting the timing of departmental meetings in schools. There is, he submitted, a demonstrable compromise between the working arrangements of individual teachers and the staffing levels in schools. One consideration on the staff side is the protection of staffing levels. Counsel referred to notes of meetings of a sub-group of the Committee which took place prior to the Committee meeting on 20 May 2002, for the purpose of demonstrating how a compromise was reached on the relative numbers of in-school and after-school departmental meetings. One of the considerations underlying this compromise was that the more that these meetings were held during the school day, the more relief teachers would be required, up to 52 full-time equivalent teachers in the Council's area. This was an example of the way in which compromises had been reached and a balance had been struck in paragraph 2.4 of the Working Time Agreement, relating to staff meetings. In this and other paragraphs agreement was reached at Committee level because there were considerations going beyond those arising in individual establishments. It was because the Working Time Agreement reflected a compromise between the Council and the unions and balanced their mutual interests that counsel was instructed to appear for both sides, apart from the SSTA.

  • Counsel went on to submit that the argument for the SSTA failed to recognise that in the Framework Agreement and the Local Agreement there are provisions for discussions to take place on three levels, national, local and establishment. Historically, terms and conditions of employment of teachers were agreed nationally, but under the new scheme there is some scope for agreement locally between the employers and the unions, leaving some further matters to be agreed at establishment level. On a proper construction of paragraph 5 of the Framework Agreement, counsel submitted, local negotiations are to take place in local negotiating committees, such as the Committee. The Committee was constituted by the Local Agreement, which followed, with some modifications, the framework local recognition and procedure agreement set out in Annex H and referred to at paragraph 5.3 of the Framework Agreement. Provision is made for the use of remaining time in paragraph 2.3 and Annex D of the Framework Agreement. Annex D refers to discussions on working conditions at local level as well as at establishment level. Bearing in mind the distinction between local level and establishment level, the striking of a balance between resources and staffing levels, with implications beyond an individual school, was appropriately done between the Council and the unions in the Committee at local level. The provisions of Annex H of the Framework Agreement and of the Local Agreement, and in particular the addition of working time arrangements to the list in paragraph 3 and the addition of paragraph 17 to the Local Agreement, make it clear that the function of the Committee is not confined to setting up procedures in schools, but relates also to the reaching of agreement on devolved conditions of service. So, in the case of staff meetings, it was the function of the Committee to reach agreement on matters which had implications for staffing levels, leaving a residual discretion to individual schools to decide such matters as the exact timing of each meeting. As for parents' meetings, account needed to be taken of the provisions of section 5(1) and (2) of the 2000 Act relating to consultation with and the involvement of parents in relation to their children's education. Counsel also made reference to the disputes at the five schools mentioned above. I see no need to go further into the detail of these disputes because the point at issue between the parties is not whether the disputes arise under the Working Time Agreement but whether the Committee acted ultra vires in approving the Working Time Agreement.

  • In my opinion the construction of the Framework Agreement and the Local Agreement contended for by the Committee is to be preferred. The Framework Agreement refers in its introduction to the "new national and local negotiating machinery" proposed in it. Paragraph 5 relates to the establishment of "a new national negotiating body and local negotiating committees covering each of the 32 local authorities". The word "local" in this context must mean that the functions of a local negotiating committee are intended to extend to the whole of each education authority's area, "local" being used in the same sense as in "local authority". By paragraph 5.2 local negotiating committees "will have powers to vary certain devolved, [sic] conditions of service agreements and to reach agreement on a range of matters not subject to national bargaining". This cannot be interpreted as meaning that the functions of these committees are confined to laying down procedures to be followed at establishment level. Paragraph 4 of Annex H, which was adopted, with a modification which is not relevant for present purposes, for the Local Agreement, provides not only that the purpose of the Agreement is to establish bargaining machinery and a negotiating procedure between the Council and the signatory unions, but also that these are the means whereby relevant conditions of service can be determined. This is reinforced by the important addition of paragraph 17 to the Local Agreement, which provides that the principal function of the Committee is to constitute "a forum for the negotiation of relevant conditions of service". These express provisions appear to me to make it plain that the functions of a local negotiating committee extend to reaching agreement on terms and conditions of service of teachers employed in the relevant area. I can see no useful purpose which would be served by setting up a committee for each area, 32 in all, whose main function was confined to laying down procedures to be followed in the conduct of negotiations in establishments. Counsel for the SSTA was unable to suggest any reason why this should be done at what he called "county" level rather than national level, if this was the intention. It makes a great deal more sense that, while some terms and conditions of service, such as pay and national conditions (see paragraph 5.1 of the Framework Agreement) should appropriately be agreed at national level, other terms and conditions of service should appropriately be agreed at local level between each education authority and the unions representing their employees within that area. This is most obviously so where there are implications for the use of resources and for staffing levels, as counsel for the Committee was able to demonstrate by reference to the negotiations on departmental meetings. And of course, in the Local Agreement, working time arrangements were added to the list of matters relating to conditions of service as to find in paragraph 3. There can in my opinion be no doubt that the Committee, constituted by the Local Agreement, had power, in terms thereof, to approve the Working Time Agreement.

  • Annex D of the Framework Agreement, which sets out the code of practice on working time arrangements for teachers, appears to me to maintain the distinction between national, local and establishment levels of discussion. It states that it will operate within the context of national and local negotiating arrangements, and that it "shall inform discussions on working conditions at local level and will require to be supported by effective consultative arrangements at establishment level". It provides that each educational establishment will prepare a school plan in accordance with the 2000 Act, which "will reflect establishment, local and national priorities". Again, I can find no support in Annex D for the SSTA's contentions about the functions of local negotiating committees such as the Committee. While paragraph 2.3 and Annex D of the Framework Agreement both provide that the use of the remaining time (that is, time beyond the combined class contact and preparation/correction allowance) "will be subject to agreement at school level", this should not be read in isolation but in the context of the Framework Agreement as a whole. I am satisfied that the intention throughout, once provision has been made for discussion at national, local and establishment levels, is to secure agreement on matters which are appropriately decided at each of these levels. For the reasons already discussed, there are matters arising in connection with staff meetings (and no doubt also parents' meetings) which would appropriately fall to be discussed and agreed upon by local negotiating committees, while there are other aspects that are appropriately left for agreement at establishment level. This appears to me to be reflected in the Framework Agreement. I am therefore satisfied that the Committee was acting within its powers in reaching agreement on some matters relating to staff meetings and parents' meetings, along with other matters recorded as having been agreed in the Working Time Agreement. I therefore reject the contention that the Committee acted ultra vires in approving the Working Time Agreement.

  • I should add that counsel for the EIS adopted the submissions of senior counsel for the Committee on the proper construction of the provisions of the Framework Agreement and Annex H, which had been adopted, with modifications, in all education authority areas. She pointed out that if I were to construe Annex H as contended for by counsel for the SSTA this would render impermissible not only what had been done by the Committee in the present case but also by other committees in other areas. Having regard to the construction which I prefer, it is not necessary for me to express any separate views about the position of the EIS in other areas.

  • It remains for me to mention the plea of mora, taciturnity and acquiescence which has been tabled on behalf of the Committee. Discussion of this plea at the hearing was very much subordinate to discussion of the principal issues between the parties. In the circumstances I propose to say little about it. The main reason for the plea was that as early as 31 May 2002 the General Secretary of the SSTA wrote to the Director of Education of the Council stating that the Working Time Agreement runs counter to the Framework Agreement and is not enforceable. The present petition was lodged on 10 October 2002. Counsel for the Committee referred to decisions of the First Division in King v East Ayrshire Council 1998 S.C. 182 and Swan v Secretary of State for Scotland 1998 S.C. 479 and a decision of mine in Singh v Secretary of State for the Home Department 2000 S.L.T. 533. He referred particularly to the concept of detriment to good administration, which I discussed in paragraph [11] of my Opinion in Singh. He pointed out that agreement had been reached in the overwhelming majority of establishments on the faith of the Working Time Agreement, and that confusion would arise if it were held to be invalid. Counsel for the SSTA did not appear to me to give any very clear or satisfactory explanation for the delay of several months, but he submitted that the issue of the validity of the Working Time Agreement only crystallised when the disputes were referred to the Committee by the notice dated 4 October 2002. While I do not think that this is a particularly good reason for having delayed proceedings relating to an issue which had been identified in May 2002, I am not in the whole circumstances persuaded that the delay is such that the plea should be sustained. The effects of the decision to approve the Working Time Agreement are not spent, and numerous further decisions have been and will continue to be taken under the Working Time Agreement. It appears to me that greater prejudice would arise if, while holding that the Committee acted ultra vires in approving the Agreement, I were nevertheless to sustain the plea of mora, taciturnity and acquiescence, refuse the prayer of the petition and accordingly leave the Working Time Agreement unreduced. The detriment to good administration would in that event be at least as great as the detriment founded on by senior counsel for the SSTA.

  • Given the views I have reached, however, about the proper construction of the Framework Agreement and the Local Agreement, and that the approval of the Working Time Agreement was within the powers of the Committee, it appears to me that the appropriate course is to sustain the first plea-in-law for the Committee and to refuse the prayer of the petition. I shall pronounce an interlocutor accordingly.

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