Motion to the NEC, February 9 2022
Preamble
1.The NEC notes the concerns expressed in the Advice of Michael Ford QC of 19October 2021 concerning three of the six numbered Resolutions of 6 October2021 and also notes the Opinion of Lord Hendy QC of 13 October 2021 that those Resolutions were lawful, intra vires and consistent with the Rules of UNISON.
2.In a spirit of conciliation and for the avoidance of any further doubt, the NEC now resolves to consider the six Resolutions of 6 October 2021 in the following manner and in doing so, to the extent necessary, interprets relevant Rules,resolves questions arising as to the interpretation of relevant Rules, augments the Rules, and makes provision where the Rules are silent, in accordance with,respectively, Rule D.2.11.3, Rule A.2.2, Rule D.2.11.2 and Rule D.2.11.1.
Resolution 1
3.This provides that:
Pursuant to Rules D.2.1, D.2.8, and D.2.11.9 the NEC resolves to convene every other month and that the current cycle of Committee meetings will continue as at present but with each Committee reporting to the next NEC meeting.
4.This Resolution requires no clarification and stands.
Resolution 2
5.This resolution provides:
Pursuant to Rules D.2.1 and D.2.9 the NEC appoints a Committee consisting of the President and Vice-Presidents (the quorum for which shall be two) to be known as ‘the Presidential Team’ to which it delegates, between meetings of the NEC, the NEC’s powers (including the power to direct the General Secretary from time to time as may be necessary pursuant to Rules D.2.13.1 and E.3.1) other than powers it has delegated to the Development and Organisation Committee. The Presidential Team shall seek the endorsement of the next NEC meeting for any such exercise of its delegated powers.
6.This resolution is replaced by the following resolution which shall have effect as if passed on 6 October 2021:
a. Pursuant to Rules D.2.1 and D.2.9 the NEC appoints a Committee consisting of the President and Vice-Presidents (the quorum for which shall be two) to be known as ‘the Presidential Team’;
b. Other than the powers it has delegated to the Development and Organisation Committee, the NEC delegates its powers to the Presidential Team to be exercised when the NEC is not sitting (including its power to direct the General Secretary from time to time as may be necessary pursuant to Rules D.2.13.1 and E.3.1.
c. For the avoidance of doubt, the powers delegated to the Presidential Team are no greater (and no less) than the relevant powers conferred by the Rules on and exercisable by the NEC;
d. The NEC clarifies that the power of the Presidential Team to direct the General Secretary is not intended to diminish the standing of the General Secretary as ‘Principal Officer’ or to remove her responsibility for the day-to-day running of the union The power is intended to effect a "general steering of the General Secretary, not day to day direction" (to quote Mr. Ford’s Advice at [15(4)]); in short, to direct the General Secretary on matters of policy, general direction, and any issues of particular concern to the NEC or Presidential Team as may arise.
Resolution 3
7. This provides:
Pursuant to Rule D.2.1, D.2.9 and D.2.11.15 the NEC directs the Presidential Team to instruct (through the Union’s legal department or such other solicitor as the Presidential Team thinks fit) counsel of the Presidential Team’s choice, at such a time and in such terms as the Presidential Team consider appropriate, to advise the NEC on any matter which the Presidential Team consider warrants such advice.
8. This resolution is replaced by the following resolution which shall have effect as if passed on 6 October 2021:
a. The normal procedure for obtaining legal advice for or on behalf of UNISON is part of the day-to-day administration of UNISON exercisable by the General Secretary (and, through her, the Director of Legal Services) under Rule D.2.13.1.
b. However, the NEC reserves its right to instruct lawyers or particular lawyers on matters of policy or in relation to specific issues in circumstances in which it considers it appropriate to vary the normal procedure for obtaining legal advice. Such circumstances will plainly be exceptional.
Resolution 4
9. This reads as follows:
Pursuant to Rules D.2.1, D.2.9 and the preamble to Schedule D, the NEC delegates to its Development and Organisation Committee all its powers in relation to disciplinary matters which are subject to Rule C.7.4, Rule I and Schedule D. That Committee shall seek the endorsement of the next NEC meeting for any such exercise of its delegated powers.
10. This Resolution stands. For clarity, the NEC delegation to the Development & Organisation Committee (the “D&O Committee”) of ‘all its powers in relation to disciplinary matters’ was and is intended to include (but is not limited to) the powers to impose, review and remove, suspensions under Rule C.7.4.1 and C.7.4.2.
Resolution 5
11. This provides:
Pursuant to Rule A.2, D.2.1, D.2.11.1, D.2.11.2, D.2.11.3 and Rule C.7.4, the NEC rules that Rule C.7.4 gives jurisdiction to the NEC (and the Development and Organisation Committee exercising its delegated powers) the duty to consider the suspension of any member or branch suspended for more than 4 weeks where such suspension has not been considered by the NEC or the Development and Organisation Committee in the last 4 weeks and, as it thinks fit, remove or continue the suspension.
12. This Resolution stands. For clarification, the power vested in the NEC by Rule C.7.4 to impose suspension shall, like the power to impose, review and remove suspension vested in the D&O Committee by Resolution 4, only be exercised by the D&O Committee or by its Chair or Vice-Chair and/or nominated members of the D&O Committee. The purpose of this limitation is to achieve compliance with natural justice so as to ensure that the independence and impartiality of all other NEC members is not compromised by prior involvement in a particular suspension decision should any aspect (including but not limited to imposition, review or removal of suspension) of the disciplinary proceedings to which the suspension was related, subsequently come before them.
Resolution 6
13. This Resolution reads:
Pursuant to Rules C.2.4, C.7.1.1, D.2.1 and D.2.2.4, the NEC directs that any member holding elected office within the Union or holding an elected seat on a Committee of the Union who is dismissed by their employer shall, on notifying the General Secretary within one month of such dismissal, continue to be a member of the union from the date of dismissal until such time as the NEC decides otherwise or the member resigns from the union, and whilst such a member shall be entitled to hold office in the union and, in particular, shall continue to hold every office and sit on every Committee in the union to which they have been elected or appointed for the remainder of the term of such office or seat, unless and until the NEC decides otherwise or the member resigns from such office or seat.
The NEC revokes this Resolution. This is in the light of the Advice of Michael Ford QC at [29]-[30] as to the proper interpretation of Rule C.2.4 which explains how the Rule may accomplish the protection of membership and office of a member potentially victimised by dismissal by her employer. This achieves the twin objectives of the NEC in ensuring that a specified member: (i) will not lose membership by reason of her dismissal from employment (provided she has notified her dismissal to her Branch Secretary); and (ii) will not to lose any union office she holds (provided that the NEC or any Committee or person to which or whom it has delegated its relevant powers so decides). Resolution 6 is thus no longer necessary.