Legal advice shows Scotrail in breach of agreement, says RMT

Union welcomes MSPs' call to block indemnity for First Scotrail

THE 2001 agreement that commits Scotrail not to extend driver-only operation remains in force, legal opinion obtained by Scotland's biggest rail union confirms today.

Advice from RMT's lawyers confirms that First Group is wrong in law to argue that it is not bound by an agreement with the union made by previous franchisee National Express.

Angus McPherson of Drummond Miller has told the union that the agreement is "clearly" protected by the Transfer of Undertakings (Protection of Employment) (TUPE) regulations and therefore remains in force.

Mr McPherson cites Regulation 5a, which makes it clear that any collective agreement between a 'transferor' (in this case National Express) and a trade union it recognises that is in force immediately before the transfer continues to have effect after the transfer just as if it had been made between the 'transferee' (First Scotrail) and the union. (opinion in full below)

RMT today also welcomed a call tabled by MSP Elaine Smith in the Scottish parliament not to use public money to compensate First Scotrail for any losses or fines incurred as a result of the dispute.

The motion (text below), welcomes recent dialogue between Scottish ministers and RMT on the safety issues involved and supports the Scottish TUC's view that it would be "wholly wrong" for public money to be used to support employers during industrial disputes.

"First Scotrail is attempting to tear up an agreement entered into in good faith by RMT in 2001 which expressly precludes any extension of driver-only operation," the union's general secretary, Bob Crow, said today.

"It would be scandalous if First Scotrail were to be handed Scottish taxpayers' money to bankroll it against industrial action, not least because the firm has engineered the dispute.

"It takes six months to train a guard, and it is absurd of Scotrail to suggest that this dispute is merely about who opens the doors. First Group gave its shareholders £18 million in dividends last year, yet it would cost only £300,000 to keep guards in place on the Airdrie-Bathgate line

"I hope that MSPs will support Elaine Smith's motion, and I hope that rail users in Scotland will look beyond First Scotrail's disinformation and recognise that we are in dispute to protect their safety as well as our members'," Bob Crow said.

ends – notes follow

Notes to editors: More than 550 RMT guards and drivers at First Scotrail will strike for 24 hours on February 20, March 1 and March 13 after voting overwhelmingly for action against plans to impose driver-only operation on the new Airdrie-Bathgate line.

Sleeper-train managers will strike for 24 hours from 20:01 hours on February 21, February 28 and March 14

RMT members voted for action by a margin of nearly five to one on an 82 per cent turnout. (Yes: 379, No: 80).

Motion tabled by Elaine Smith MSP, February 11, 2010

S3M-05722 Elaine Smith (Coatbridge and Chryston) (Scottish Labour): First ScotRail Industrial Relations— That the Parliament understands that a provision exists in the First ScotRail franchise agreement that provides the Scottish Government with discretionary powers to reimburse the company for revenues lost due to industrial action; supports the position of the Scottish Trades Union Congress (STUC) that it is wholly wrong for public funds to be used to support private companies such as First ScotRail in disputes with trade unions; also agrees with the STUC that the provision and use of such powers is not conducive to good industrial relations as it weakens the incentive for private companies to reach agreement; further supports the view of the STUC that such powers should not be used in the event of industrial action in the current dispute between First ScotRail and the National Union of Rail, Maritime and Transport Workers (RMT); welcomes the fact that the Scottish Government has been in dialogue with the RMT over the issues involved in the dispute, and believes that the interests of constituents in Coatbridge and Chryston, passengers, rail workers and Scotland would be best served by an early and agreed negotiated settlement to end this dispute.

Supported (to date) by: Mr Frank McAveety, Bill Butler, Marlyn Glen

Opinion from Angus McPherson, Managing Partner, Drummond Miller LLP

Dear Sir,

Driver Only Operation

Transfer of Undertaking Protection of Employment Regulations 2006

Collective Agreement between RMT, First Scotrail and their Predecessors

I have been asked to advise on the applicability of the TUPE regulations to the Collective Agreement currently in force between your members who are employed by First Scotrail Limited and their employment transferred there from previous train operating company franchise holders in Scotland since 2001, when the current Collective Agreement was varied between the then employers and the union.

It is clear that the terms and conditions of the Collective Agreement as amended from time to time are protected by Regulation 5a which stipulates that any collective agreement made by or on behalf of the transferor or of the trade union recognised by them in respect of any transferring employees that is in force immediately before the transfer shall have effect after the transfer insofar as it applies to any relevant employees just as if it had been made in or on behalf of the transferee with the union.

It therefore follows that the Collective Agreement in relation to Driver Only Operation, has survived the transfer from National Express to First Scotrail and has the same effect now as it did before.

Yours sincerely

Angus McPherson

Managing Partner

For and on behalf of Drummond Miller LLP