Trade union facility time

This instruction applies to:- Reference:-

NOMS Headquarters AI 12/2014 Prisons PSI 17/2014 National Probation Service PI 09/2014 Issue Date Effective Date Expiry Date Implementation Date 11 April 2014 11 April 2014 06 April 2018 Issued on the NOMS Agency Board authority of For action by All staff responsible for the development and publication of policy and (Who is this instructions (Double click in box, as appropriate) Instruction for) NOMS HQ Public Sector Prisons Contracted Prisons* Governors Heads of Groups Probation Trusts National Probation Service * If this box is marked, then in this document the term Governor also applies to Directors of Contracted Prisons Instruction type HR function For information All staff in NOMS HQ, NPS & prison establishments Provide a summary This instruction sets out the mandatory requirements for the authorising, of the policy aim reporting and monitoring of trade union facility time within NOMS. and the reason for its development / revision Contact Employee Relations - [email protected]

Associated PSO 8525 – POA Establishment Level Engagement – Enabling Agreement documents on Change Proposals and Resolving Disputes NTS 39/2013 - Trade Union Consultation and Disclosure of Information

Replaces the following documents which are hereby cancelled: None

Audit/monitoring: Governors, Director of NPS in England, Director of NOMS in Wales and Heads of Group will ensure local records are kept and monitored to demonstrate compliance with mandatory actions set out in this instruction.

Introduces amendments to the following documents: None Page 2

CONTENTS

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Section Subject For Reference By 1 Executive Summary Governing Governors/NPS Deputy 2 Introduction: Principles Directors/Heads of Group, all trade union representatives and 3 Requesting Facility Time line managers of Trade Union representatives.

4 Authorising Facility Time Governing Governors/NPS Deputy Directors/Heads of Group and line managers of Trade Union representatives.

5 Recording and Reporting Facility Time Governing Governors/NPS Deputy Directors/Heads of Group

Appendix 1 Facility Time Guidance Deputy Directors of Custody, Governing Governors/NPS Deputy Directors/Heads of Group, all trade union representatives and line managers of Trade Union representatives.

Appendix 2 Facility Time Application Form Governing Governors/NPS Deputy Directors/Heads of Group, all trade union representatives and line managers of trade union representatives.

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1. Executive Summary

Background

1.1 This Instruction sets out the mandatory requirements for the authorising, reporting and monitoring of Trade Union facility time within NOMS.

1.2 The Civil Service recognises the important role that the Trade Unions play in a modern workplace and the benefits that are brought to both employer and employees when departments and Trade Unions work well together. The Cabinet Office has published a Framework on the use of Trade Union facility time across the civil service. This Framework is binding on NOMS and in the case of any conflicts with this instruction the requirements of the Framework will apply (see Appendix 1).

1.3 Facility Time is the provision of time off from an employee’s contractual role to undertake Trade Union duties and activities when they are elected as a representative of a Trade Union. In NOMS, the relevant Trade Unions are as follows:

. Prison Officers’ Association (POA) . Public and Commercial Services union (PCS) . Prison Governors’ Association (PGA) . Prospect . FDA . Unite . General and Municipal Boiler Makers (GMB) . Union of Construction and Allied Technical Trades (UCATT) . Napo . UNISON . GMB/Society of Chief Officers of Probation (GMB/SCOOP)

1.4 These Trade Unions are recognised by NOMS for collective bargaining on behalf of their members. Facility time may not be granted to a representative or member of any other Trade Union under the terms of this Instruction. . 1.5 Members of the above Trade Unions may also be granted (paid or unpaid) facility time to enable them to participate in the conduct of business by the Trade Union. This Instruction, however, primarily concerns members of staff who have been elected as representatives of their Trade Union.

1.6 This Instruction only applies to staff directly employed by NOMS (including HMPS and NPS). It does not cover employees of other organisations, self-employed individuals or contractors, nor will facility time be allowed to represent those people on an individual or collective basis.

1.7 This Instruction does not cover the provision of other facilities (such as office accommodation or use of official equipment) which are set out in the agreements or arrangements NOMS has with individual recognised Trade Unions (see Appendix 1).

1.8 It is expected that Community Rehabilitation Companies (CRCs) will follow the principles espoused in this Instruction.

1.9 The purpose of facility time is to enable NOMS to engage with its staff and to meet its legal obligations under the relevant legislation and to promote positive employee relations. However, facility time must be managed effectively to ensure that the most efficient use possible is made of NOMS resources.

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1.10 NOMS is required to report its facility time usage to the Cabinet Office each quarter and to account to Ministers on its management.

Desired Outcomes

1.11 This Instruction aims to ensure that:

. Managers at all levels manage facility time in accordance with Cabinet Office guidance . Governors and Heads of Group monitor the use of facility time and report this on a quarterly and annual basis . NOMS reports the amount of facility time used within the estate to the Cabinet Office promptly and accurately each quarter . Trade Union representatives are aware of the NOMS policy on the management of facility time when submitting applications

Application

1.12 Chapter 2 sets out the principles which apply to facility time applications. All managers and Trade Union representatives must be familiar with this chapter.

1.13 Chapter 3 set out the processes to be followed by Trade Union representatives when applying for facility time.

1.14 Chapter 4 sets out the process to be followed by line managers when considering and authorising or refusing applications.

1.15 Chapter 5 sets out the mandatory recording and reporting process to be followed by line managers, Governors, Heads of Group and Employee Relations (HR Directorate).

Mandatory actions

1.16 This instruction must be used whenever trade union facility time is requested. All Trade Union work undertaken during a representative’s working hours (not including rest days, annual leave or lunch breaks) is subject to this Instruction. There are no categories of Trade Union work exempt from this Instruction.

1.17 All steps mandated in this instruction must be completed before Managers can authorise, or Trade Union representatives can take, facility time.

1.18 Governors and Heads of Groups and other more senior managers must ensure that all managers and Trade Union officials are made aware of this Instruction.

Resource Impact

1.19 The new application system and the necessity to record facility time usage may result in a slight increase in time spent managing Trade Union representatives by individual line managers.

(Approved for Publication)

Carol Carpenter HR Director, NOMS

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2. Introduction: Principles

Policy Principles

2.1 The aim of this Instruction is to provide a framework for the management of facility time within NOMS, enabling compliance with legal obligations and with Cabinet Office guidelines and to foster effective and positive employee relations.

2.2 NOMS supports the system of collective bargaining and the principle of solving employee relations problems by discussion and agreement. This document provides the recognised NOMS Trade Unions with sufficient time to properly represent their members and to conduct collective bargaining. NOMS values this positive engagement with Trade Unions at all levels as a means of fostering harmonious, effective and efficient employee relations. The objectives of any engagement will be to agree changes, wherever relevant, reach consensus, wherever possible, or obtain acceptance without the recourse to unilateral action on either side.

2.3 This Instruction provides the process by which Trade Union representatives may request facility time to carry out their Trade Union role and details the steps that line managers must take to authorise, record and report such time. It has been designed to inform and advise managers of their responsibilities regarding:

. When paid facility time may be authorised . When unpaid facility time may be authorised . How such time must be recorded and reported

2.4 Trade Union members may also be granted (paid or unpaid) facility time to enable them to participate in the conduct of the business of the Trade Union. This Instruction, however, primarily concerns staff that have been elected or appointed to a representative role within their Trade Union.

General principles

2.5 Trade Union representatives have a legal right to reasonable paid time off to carry out Trade Union Duties; they also have a legal right to reasonable unpaid time off to carry out Trade Union Activities.

2.6 Time off, whether paid or unpaid, to carry out a Trade Union role is known as ‘facility time’ (see appendix 1). Facility time must not be provided for:

. The planning or, promotion of, or participation in, any industrial action . Political activity

2.7 Cabinet Office guidelines have determined that ‘reasonable’ paid time off can be defined as equating to a guide figure of no more than 0.1% of a civil service organisation’s annual pay bill for all paid facility time taken within the organisation by all Trade Unions. This figure may change from time to time and NOMS will publish any revised figure and discuss the implications with Trade Unions. Within the confines of this figure, NOMS will discuss with Trade Unions how this will impact upon them and any roles within their organisations they would wish to have “fixed” facility allowances for their representatives (see below). The facility time “year” runs from 1 April to 31 March.

2.8 Representatives must spend at least 50% of their time in their civil service role. This includes part-time workers and those working shifts. There is no limit to the number of Trade Union posts or roles a representative can occupy (known as “layering”) as long as

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the annual 50% limit is not breached. Before the start of the facility time year, NOMS and Trade Unions at the national level, will discuss any “fixed” facility time allowances a Trade Union may wish to allocate to any of its representatives. These are normally expressed in percentage terms or as a specific number of hours/days per week.

2.9 Trade Union representatives should notify their line manager verbally as soon as they are elected and confirm this in writing within 14 days of their election to any and all Trade Union positions. All subsequent changes should also be notified to their line manager.

2.10 Authorisation for facility time will be given to newly elected representatives when notification has been received in line with the above process. All line managers and Trade Union representatives should discuss at an early stage following the latter’s election to their post, how the requirements of this Instruction will be implemented in practice including any flexibility and changes to workloads which may be required to reflect the working arrangements of the establishment/unit and the Trade Union. It is accepted that, as long as core work is completed, less work will be done when representatives conduct Trade Union business and that, as cover cannot always be provided, a reduction in the quality of service offered may have to be accepted as a result.

2.11 Establishments and Groups should notify Employee Relations of any representatives elected to a “national” position according to the following:

. POA – members of the National Executive Committee (NEC) . PCS – members of the Branch Executive Committee (BEC) or NEC . PGA - members of the NEC . Prospect – members of the BEC or NEC . FDA - members of the BEC or NEC . GMB, UCATT and Unite – representatives elected or appointed as “national” representatives within NOMS . Napo, UNISON and GMB/SCOOP – members of BEC and/or NEC

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3. Requesting Facility Time

3.1 All requests for facility time (paid or unpaid) should be made as early in advance as possible on the application form attached to this PSI as Appendix 2. These may be submitted electronically. All sections of the form must be completed and the line manager’s sign off obtained in advance of the time requested being taken. In exceptional circumstances, a verbal application may be made but this must subsequently be confirmed by use of a completed application form.

3.2 Multiple requests for facility time may be made at the same time and on the same form for example, representatives holding a fixed allowance may request time substantially in advance of when it is to be taken (perhaps on a monthly basis).

3.3 If possible, supporting evidence for the application should be attached to the application form. Examples of this are confirmations and agendas of meetings; notice of disciplinary or grievance hearings; and, safety inspection schedules. It is not possible to detail all types of evidence which should be submitted and care should be taken to avoid providing details which may compromise propriety or the confidentiality of individuals. It is accepted that suitable written evidence will not always be available to support applications and a level of trust and common sense should be applied.

3.4 Line managers are required to retain a record of all applications in order to comply with monitoring requirements detailed in section 4.

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4. Authorising Facility Time

4.1 All facility time applications must be considered by a representative’s line manager or, if unavailable, the manager’s manager and a decision made to enable the time to be taken by the representative (if authorised). Managers should only authorise facility time following the submission of a fully completed application form submitted in advance of the time requested (save for the exceptional applications set out in paragraph 2.1). Exceptionally, Governors and Heads of Groups may delegate responsibility for authorising facility time to a more senior manager.

4.2 Applications should be considered by the line manager according to the following criteria:

. That the time requested is reasonable and does not include time spent travelling to conduct business away from the representatives usual workplace

. That the business needs of the establishment/group allow the request to be granted (balanced against the benefits which may accrue to the organisation as a whole in terms of the positive engagement of staff resulting from the release of the representative)

. That the time is requested for one of the purposes set out in the Cabinet Office list of Activities and Duties (see Appendix 1)

. That the time sought has been correctly classified as a duty or activity

. That granting the request will not result in the trade union representative spending less than 50% of their time delivering their Civil Service (NOMS) role (but recognising the need for some flexibility in how this is applied). Line managers should keep the facility time taken under review and take account of the expected outturn when considering requests

4.3 Managers may ask questions in order to determine whether the time requested is legitimate and whether it constitutes a duty (paid) or activity (generally unpaid). Care should be taken to avoid seeking details which may compromise propriety or the confidentiality of individuals or the integrity of the representative and a level of trust and common sense should be applied. In cases of doubt, managers should seek the advice of the HR Business Partner (HRBP) or Employee Relations.

4.4 If the line manager refuses an application, the matter may be pursued by the representative through the management line.

4.5 Facility time may only be approved for purposes listed in Appendix 1. Any requests for authorisation of facility time that fall outside of these Cabinet Office Guidelines must be referred to the HRBP or Employee Relations for advice prior to a decision being taken.

Training

4.6 Applications for facility time for training can fall into either category: duty or activity depending on the content. It has been agreed that:

. Initial training provided by the Trade Union to enable the Representative to undertake their duties to a basic level of competence will be classed as a duty for which paid facility time can be granted, subject to the other considerations set out above. This will generally be provided by the Trade Union through the TUC and consist of a 10-day course covering the role of a representative or a Safety Representative

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. Training which involves issues related to negotiations or collective bargaining with the employer will generally be classed as a duty for which paid facility time can be granted subject to the other considerations set out above

. Training which is primarily concerned with the internal running or administration of the Trade Union itself will normally be an activity for which unpaid facility time can be granted subject to the other considerations set out above

4.7 In cases of doubt, managers should seek the advice of the HRBP or Employee Relations prior to making a decision on whether to authorise facility time for training.

Authorisation

4.8 If facility time (paid or unpaid) is authorised, then this should be recorded on the application form and the form returned to the applicant. A copy must be retained by the manager for auditing and monitoring purposes (see section 4).

4.9 Where unpaid facility time has been authorised, line managers are required to ensure that the necessary forms (AUA1 and AUA3 available on My Services) are submitted to Shared Services to enable pay deductions to be made.

4.10 All facility time authorised to representatives who are rostered (operational) staff should be recorded on InVision.

Refusals and Appeals

4.11 Managers should be aware of the department’s obligation to support Trade Union representation and must not unreasonably refuse requests for facility time. In the event of facility time being refused (wholly or partially) the manager should provide the representative with written reasons for doing so and these should be sufficient and timely enough to enable them to make representations to a more senior manager if they so choose.

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5. Recording and Reporting Facility Time

5.1 NOMS is required to submit an accurate account of the facility time taken within the organisation to the Cabinet Office. Employee Relations will issue a request for data to establishments and groups on a quarterly basis.

5.2 Line managers are responsible for keeping a record of all facility time used by the representative(s) they manage by retention of application forms.

5.3 It is the responsibility of Governors and Heads of Group to ensure that the necessary information is recorded, collected and supplied to Employee Relations each quarter.

5.4 Governors and Heads of Group should establish systems to enable them to regularly monitor the management of facility time within their areas of responsibility and to assess whether it meets the requirements of this Instruction and the Cabinet Office guidance.

5.5 It is the responsibility of Employee Relations to collate and submit the information to the Ministry of Justice and Cabinet Office. .

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A ppendix 1 - Facility Time Guidance

Introduction

Reasonable paid time off is available for Trade Union duties as defined by TULR(C)A1, the Employment Act 2002 and the Health and Safety at Work Act 1974. Reasonable time is also allowed for training to perform the functions of trade union representatives under this legislation. Reasonable unpaid time off is also available for trade union activities as defined by TULR(C)A. Further details are contained within the ACAS Code of Practice: Time Off for Trade Union Duties and Activities.

The Cabinet Office Facility Time Framework

The management of Trade Union facility time in the Civil Service is set out in the Cabinet Office Facility Time Framework and its associated guidance. These documents set out the requirements and processes to be followed by individual departments and agencies including NOMS. This Framework is binding on NOMS and in the case of any conflicts with this instruction the requirements of the Framework will apply.

Facilities Agreements

The ACAS Code of Practice says that “to take account of the wide variety of circumstances and problems which can arise, there can be positive advantages for employers and trade unions in establishing agreements on time off in ways that reflect their own situations.” Within NOMS, it has proved possible to reach agreement with some of the Trade Unions and, accordingly, NOMS has, following consultation, put in place a series of individual facility time arrangements covering specific Trade Unions.

Types of Representatives

Trade Union representatives are the official representatives of an independent Trade Union recognised by the NOMS. There are three distinct types of representatives:

. Trade Union representatives (Reps) –They have responsibility for representing the interests of their members in the workplace.

. Union Learning Representatives (ULRs) - promote and enable training and learning in the workplace.

. Health and Safety representatives (H&S) – promote a good safety culture and allow employees to raise issues of health and safety that concern them.

They have statutory rights which are primarily set out in:

. Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A)

. Safety Representatives and Safety Committees Regulations 1977.

The legislation is supported by key guidance to set out the rights and promote best practice:

. ACAS Code of Practice on ‘Time off for trade union Duties and Activities

. HSE Code of Practice on ‘Consulting employees on health and safety.’

Each type of representative has statutory rights attached to their roles:

1 Trade Union and Labour Relations (Consolidation) Act (1992)

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. For H&S representatives, paid time away during working hours as is necessary to perform their functions

. For Reps and ULRs, reasonable paid time off to carry out duties

. Reasonable unpaid time off to undertake activities

. Reasonable paid time off for training

. Protection against dismissal and detriment for being a TU representative

. The provision of facilities to help representatives perform their duties

What are the Statutory Rights?

Right to paid time off

Representatives are entitled to reasonable paid time off to undertake duties and to undertake relevant training (line managers should: identify if it is a duty; decide if the request for time is reasonable; and provide reasonable paid time off).

ULRs are entitled to reasonable paid time off to undertake the duties associated with the role and to undertake relevant training (line managers should: identify if it is a recognised duty if so, decide if the request is reasonable; and provide reasonable paid time off)

H&S reps are entitled to paid time off during working hours as is necessary to perform the duties of the role (if it is a recognised duty associated with the role line managers should provide the necessary amount of paid time off as required to undertake the duty)

Right to reasonable unpaid time off

Both Trade Union representatives and members have the statutory right to reasonable time off to undertake activities but there is no statutory right for this time off to be paid.

The default position across the Civil Service is that time off to undertake activities should be unpaid. Applications for paid time off to undertake activities should be referred to Employee Relations.

Managers have discretion, subject to business needs, to allow representatives to make up reasonable time off to participate in unpaid activities, rather than take special leave. Representatives may choose to undertake activities in non-work time i.e. at lunchtime or before or after work.

Trade Union Duties

Trade Union Duties are those functions with a direct business benefit for which reasonable paid time off will be provided in accordance with statutory requirements and the ACAS Code of Practice.

Duties tend to concern negotiations and/or functions related to collective bargaining (which refers to negotiations held between management and Trade Unions on behalf of members regarding terms of employment):

. Terms and conditions of employment (e.g. pay, hours of work, sick pay arrangements, pensions, notice periods)

. Allocation of work or duties of employment (e.g. job grading and evaluation, flexible working practices);

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. Matters of discipline (e.g. disciplinary procedures, accompanying employees at internal hearings); and

. Engagement, non engagement, termination or suspension of employment (e.g. recruitment and selection policies; redundancy arrangements).

Union Learning Representatives (ULRs)

Subject to having provided the employer with notice in writing that the employee is a ULR of the union and the training condition is met, duties include:

. Analysing learning or training needs

. Providing information and advice about learning or training matters

. Arranging learning or training

. Promoting the value of learning or training

. Consulting the employer about carrying out any such functions

. Preparing to carry out any of the above, and

. Undergoing relevant training

Safety Representatives

Duties include:

. Representing employees generally when the employer consults them about specific matters that will affect the health, safety and welfare of staff

. Represent employees when Health and Safety Inspectors from the HSE or local authorities consult them

. Investigating accidents, near misses, and other potential hazards and dangerous occurrences in the workplace

. Investigating complaints made by an employee they represent about their health, safety or welfare in the workplace

. Presenting the findings of investigations to the employer

. Inspecting the workplace

. With at least one other appointed representative, requesting in writing the setting up of a health and safety committee, and

. Attending Health and Safety Committee meetings as a representative of employees.

The Cabinet Office collects data according to the following categories (which are reflected on the application form at appendix 2):

. Grievances: e.g. time spent considering papers relating to/advising an individual who has raised a grievance and whom the TU official is representing and accompanying the employee at internal hearings.

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. Employee Casework: e.g. time spent considering papers relating to/advising on other matters of discipline affecting a TU member whom the TU official is representing and accompanying employees at internal hearings.

. Reorganisation – Redeployment: e.g. meetings with management or members on the reorganisation of the business, advising members of staff affected by a reorganisation e.g. on terms and condition changes, allocation of work etc, engagement on recruitment and selection policies, redundancy arrangements etc.

. Collective Negotiations: e.g. meetings and discussions with management regarding proposed changes or issues affecting members such as terms and conditions of employment. Reasonable paid time off will also be provided for the operation of the local and national disputes procedures.

. Health and Safety: Duties associated with the performance of health and safety functions where the trade union official is acting in the capacity of a trade union official e.g. representing employees on specific matters of health and safety, investigating accidents and complaints about health and safety.

. Union Learning Duties: associated with union learning functions

Trade Union Activities

Trade Union Activities are those which principally concern the internal workings of the union for which, further to the Cabinet Office Facility Time Framework, the default position is that paid time off will not be given (other than in exceptional circumstances agreed by the Secretary of State). Both representatives and members can undertake activities.

Examples of activities that members may take part in include:

. Attending workplace meetings to discuss and vote on the outcome of negotiations with the employer;

. Meeting representatives to discuss workplace matters;

. Voting in union elections.

Examples of activities that representatives may take part in include:

. Meetings (including branch, area, regional and national);

. Meetings of official policy making bodies e.g. executive committee or annual conference;

. Meetings with full-time officials to discuss workplace matters.

Combined Duties and Activities

It is accepted that some types of Trade Union work (e.g. some meetings) will cover both trade union activities and duties and the precise combination will vary according to their content and purpose. Managers should make an assessment using trust and commonsense on the amount of time which can be allocated to each and the requisite recording action. Any cases of doubt should be referred to Employee Relations.

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Further information on the kinds of duties and activities for which facility time can be authorised is contained in the Cabinet Office Framework Guidance.

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Appendix 2

Facility Time Application Form Representative Details (to be completed by the Trade Union Representative) Full Name Employee Number/NI Number Trade Union I wish to apply for Facility Time Paid Unpaid Please describe the reason(s) for your request(s). You should include any supporting information you feel is relevant to the request and attach any documentation required.

For applications for paid Facility Time for Trade Union Duties, please select a category (1-6) from the list below Start/End day of Facility Time requested Total number of days/hours of Facility Time requested Signature Date of Application Manager’s Section – to be completed by the Representative’s Line Manager (or other nominated senior manager) Manager’s Decision Approved Not Approved Partially approved If the application is not (or partially) approved, please describe the reason(s) for your decision. You should include any supporting information you feel is relevant to the decision and attach any documentation required

Total time granted Paid Unpaid Manager’s Name Signature Date of Approval

List of Categories for Trade Union Duties (Paid Facility Time):

1. Grievance: e.g. time spent considering papers relating to/advising on an individual who has raised a grievance and whom the TU official is representing and accompanying the employee at internal hearings.

2. Employee Casework: e.g. time spent considering papers relating to/advising on other matters of discipline affecting a TU member whom the TU official is representing and accompanying employees at internal hearings.

3. Reorganisation – Redeployment: e.g. meetings with management or members on the reorganisation of the business, advising members of staff affected by a reorganisation e.g. on terms and condition changes, allocation of work etc, engagement on recruitment and selection policies, redundancy arrangements etc.

4. Collective Negotiations: e.g. meetings and discussions with management regarding proposed changes or issues affecting members such as terms and conditions of employment. Reasonable paid time off will also be provided for the operation of the local and national disputes procedures

5. Health and Safety: Duties associated with the performance of health and safety functions where the trade union official is acting in the capacity of a trade union official e.g. representing employees on specific matters of health and safety, investigating accidents and complaints about health and safety Union

6. Learning Duties: associated with union learning functions

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