Collective agreements play a crucial role in ensuring that any variation in terms covered by the agreement must first be negotiated. This places the worker in a stronger position to object to proposed changes than if they were acting as an individual only. Although not generally legally binding (unless otherwise stated within the agreement) they are usually incorporated into the employment contract and therefore give the added protection of being contractual.
Following unsuccessful Appeals of an unauthorised deduction of wages claim, both in the EAT and the Court of Appeal, the employer in the case of Nexus v National Union of Rail, Maritime and Transport Worker & Unite, sought to remove the terms that lay at the heart of the claim by asking the court for a rectification order. This remedy, though not common in employment disputes, is open to one or both parties who contend that a written term/s of an agreement do not accurately reflect the intention of a party/parties at the time and must therefore be ‘rectified’
Here the employer argued that the collective agreement mistakenly included a productivity bonus in the overall salary calculations and therefore the terms should be rectified to specify this was not the case.
The unions argued that the employer had had the opportunity to put this forward in the original claim and not done so. As such it should be struck out on the principle that to hear the same issue in a different court was an abuse of process. They also contended that as a judgment had been made on this matter Nexus should be estopped (prevented from being heard again)
Rejecting the strike out and estoppel applications, the High Court argued that the question of whether the collective agreement term was a ‘mistake’ was a separate issue to that heard at earlier hearings which concerned the claimants’ individual contracts and therefore would not be a rehearing of matters already addressed. It also stated that the other party in this application would be the Unions rather than the employees as the collective agreement was made between them and the employer. Finally, it made clear that despite collective agreements not being legally enforceable by their nature they still can be subject to rectification.
In light of the present Government’s dismissal of calls to act on the proliferation of ‘fire and rehire’ tactics used by employers this judgement leaves Collective Agreements vulnerable at a time when they are more essential than ever.
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