TA is not casual labour!

Discussion in 'Army Reserve' started by Dr_Evil, Jan 23, 2007.

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  1. Right. This is really frikkin getting to me now.

    Can we please stop perpetuating the myth that being a member of the reserve forces is casual labour?

    The Court of Appeal decided in Manson v Ministry of Defence [2005] EWCA Civ 1678 that a member of the TA is engaged in part-time work when performing his or her mandatory training obligations only. Only if he goes beyond that is it deemed to be casual labour.

    You can read the full decision here.

    Now, let me make the same point a different way. Members of the TA are engaged in part-time employment while performing their mandatory training (27 days a year if in an independent/regional unit, 19 if in a specialist/national one). More than that and it's casual labour.

    Got it?

    A few consequences of what I have just said, as far as I see things:

    1. Under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, we are entitled to a pension in respect of the part-time work we do.

    2. Expenses incurred in order to perform mandatory training (eg, pass the phys MATT) are tax-deductible.

    Going slightly beyond what the Court of Appeal held: in the opinion of my learned self, the Court of Appeal had the wool pulled over their eyes slightly. As those who have been in the TA for a while know, the TA relies on quite a few people operating under a sort-of obligation to do a lot more than the minimum. The reason the Court thought that service beyond the mandatory was casual labour is because they were told that it is entirely voluntary.

    In my view, there is sufficient consistent pressure of duty/obligation placed on many of those serving more than the minimum that they are in fact performing part-time work and not casual labour. Yes, ultimately any of those people could refuse to do the extra work but they would face demotion/dismissal.

    Anyone want to go to the House of Lords with me on this?
     
  2. Sixty

    Sixty LE Moderator Book Reviewer
    1. ARRSE Cyclists and Triathletes

    I get the slight feeling that this is in response to a reply I posted on the 'Self Assessment Tax Form' thread.

    Apologies, it was my understanding that we were classed as such, however I'm an actuary, not an accountant or lawyer.
     
  3. No probs, mate. But the myth is recycled again and again every time a whinge thread crops up on this forum.
     
  4. While I respect your opinion that the TA is not casual labour I am certain that LAND still view it as being so and lawyers acting for the government will argue very strongly for that to be the case.

    I understand that it is all related to EU legislation over what constitutes full-time, part-time and casual labour. IIRC, LAND maintains that TA service falls into the category of casual labour as it is not timetabled. If it were to be timetabled or regular (small 'r'), then it would become pensionable in accordance with the EU legislation. I am certain that the MOD and Treasury would be embarrassed and out of pocket if TA service becomes pensionable. This is the same reasoning as to why TA service is capped at 219 MTDs and will remain so under current legislation.

    I tried to read that legal judgement but in my tired state couldn't quite understand it. However, I am sure that if the government supported what I think to be your argument, there would almost instantly be a flood of tens of thousands of TA personnel claiming their pension.

    Up to the early 1990s (or thereabouts) the Army used to throw out pregnant women. When those cases went to court the MOD lost millions. I am sure they will not let it happen again with TA pensions. After all, they can't afford it at the moment. I would wager that there are potentially more members of the TA who could claim than former servicewomen.

    I am not saying that I disagree with your argument, I just don't think the MOD can afford to agree with you. Remember, this is a government that argued the Iraq war was legal and that the Army isn't over-stretched.
     
  5. Well surely then, there is a case for members of the TA to only do the duties they are obligated to do - i.e. the annual training duties and not to do any of the "casual" duties?

    How would that leave the rest of the Army?

    MoD need to wake up and smell the coffee. This issue is not going to go away. Watch out for the Home Service Part Time Royal Irish cases scheduled to hit the Belfast Employment Tribunal at the end of Feb.

    The MoD are bringing in the same QC (N Paine QC) as the Manson case and PT FireFighters case..... can't wait for this one!!
     
  6. Ah HA!

    Now we're talking - a 'work to rule'!!

    Now exactly WHERE would that leave the Regular Army?

    Sir Richard....any comment?
     
  7. So if I do the minimum requirement I get a pension?
     
  8. With the greatest of respect to you - I don't mean to shoot the messenger - I don't give a frik what LAND's view is.

    Apologies if any of what follows is teaching any of you to suck eggs. I know I'm going to bore a few people to death here, but hey ho.

    1. Brussels

    An EC Directive(1) obliges the UK to end discrimination against part-time workers.

    The UK (like the other member states) is permitted to exclude casual workers from the scope of that protection.

    So, part-time workers can only be excluded from the scope of the protection if they work on a casual basis. That is the reason why the MoD has sought to argue that members of the reserve forces are casual workers: they argue that all TA training, whether mandatory or voluntary, is casual.

    The UK regulations were therefore drafted so as to exclude members of the reserve forces from the scope of protection if they are doing mandatory or voluntary TA training.

    2. Blighty

    The original Employment Tribunal which heard Maj Manson's claim decided simply that because Maj Manson was doing either mandatory or voluntary training, the exclusion applied. A sort of "do not pass Go, do not collect £200" decision. It refused to address the question of whether the exclusion of both mandatory and voluntary TA training from the scope of protection was compatible with the EC directive.

    The Employment Appeal Tribunal also had an attack of the wobbles. It too refused to look into the question of whether or not the UK legislation went too far by excluding both mandatory and voluntary TA work.

    When the case was appealed to the High Court, Mr Justice Moses took the view that both the ET and EAT were wrong in not looking into the question of the UK legislation's compatibility with the Directive. Slaps were administered.

    3. Bollix!

    Unfortunately for those of us in the reserve forces, he went on to perform that examination himself and to decide that we are doing casual work whether performing mandatory or voluntary training:

    The Court of Appeal was not asked to re-examine that issue. So Moses J's view stands.

    4. Brilliance

    If you're a 2:1 bod and prefer chasing totty than reading books, that is.

    Stay with me. You are entering Geekworld.

    The UK regulations express the exclusion of members of the reserve forces in a weird way. Rather than simply saying "These Regulations will not apply to members of the reserve forces unless mobilised or on FTRS", they list separately each kind of training which is excluded.

    It's especially significant that they list mandatory and voluntary training separately.

    This is important because of the way English judges deal with UK laws which breach European law. They take a big fat marker out and strike out the offending rule.

    If the rule were not broken up into (a) mandatory and (b) voluntary, then if a judge were to find that the rule is unlawful under EU law, the whole provision would fall and members of the reserve forces would be entitled to protection from discrimination in respect of all the work they do.

    I reckon that the person who drafted that legislation knew that reservists performing mandatory training are not performing casual work but are in fact part-time workers. The case law of the European Courts suggests this. Mr Draftsman was preparing the legislation in advance to take a hit.

    I believe that the Court of Appeal was hinting about this in its decision on Manson:

    But what TA training is neither mandatory nor voluntary?

    5. Boffinry

    My view is that the exclusion of mandatory reserve forces training from the part-time worker protection is not permitted by the EC directive and so is unlawful: and the Court of Appeal were aware of that and were flagging it up.

    Moses J disagrees with me but that is because:

    (a) he failed to take due regard of the fact that failure to perform the minimum requirement is sanctioned - by loss of bounty, etc. (the fact that a few defaulters are not punished should not be taken as meaning that as a rule there is no sanction);

    (b) he gave unduly high regard to the amount of flexibility we have as to when we perform our mandatory training: certain training really is mandatory and fixed;

    (c) his decision was rendered at a time when the TA was still going through the transition into an organisation which is trying to ensure that all of its members really do meet the minimum standards by attending at least the minimum training;

    (d) he placed undue prominence on the wide fluctations between TA members on the amount of training undertaken: that fact becomes irrelevant if you are looking at mandatory training as part-time and voluntary as casual; and

    (e) he was just plain wrong to describe the pattern of a TA member's work as "occasional and random": by and large, the mandatory element at least is performed according to the unit or subunit's calendar (I don't tip up of a Tuesday and say to an empty drill hall: "What-ho, chaps! I'm about to go off on a two-day exercise on my own.")

    6. Back to Mr Logic

    I agree with all of what you say. The MoD is desperate to avoid having to pay out for the pensions of those were serving since the EC directive came into force. In reality, it won't be all that much money in the grand scheme of things.

    7. Bollix Revisited

    In fact, I could see the following happening:

    1. Dr Evil QC wins stunning victory against MoD in the House of Lords: TA bods are entitled to pension for mandatory work.

    2. MoD sets up pension entitlement for all those who benefit from that judgment. Dr Evil spends costs awarded in his favour on scratch'n'sniff fembots.

    3. MoD then says: right, no more bounty.

    4. Someone with a calculator sits down and works out that we are worse off being paid a pension based on such short mandatory periods of work than if we took our tax-free bounty and stuck it into a stakeholder pension each year.


    (1) Council Directive 97/81 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and ETUC of 15th December 1997. Council Directive 98/23/EC of 7th April 1998 made the earlier directive apply to the UK.
     
  9. Think it would be 4. Sixty said he was an actuary so has volunteered himself to do the calc but £1600 tax free is equivalent to an employer's contribution of somewhere between 20 and 200% of salary.
     
  10. Can I bring it down to simplistic terms?

    I like my bounty - it's going towards a deposit on a decent car this year.

    I don't want a pension; chances are I wont be around to spend it.

    I think we should all shut the f*ck up before someone in MOD see's that we are worse off getting a pension so makes it happen.
     
  11. I agree. As Dr Evil pointed out in his excellent disposition and Clownbasher worked out, on a contribution basis the bounty is more valuable than a pension (especially if based upon a contribution on the 27 MTD sketch).

    If a pension is forced through as of right the bounty may go (which I believe there would be no legal redress from). I prefer the bounty.
    M9

    PS What is it for? Is it a retainer since one is prepared to be mobilised?
     
  12. This "casual" vs "part-time" debate has implications far beyond the bounty or pension question, it has the potential to fundamentally change the way the TA operates.

    At the moment the "casual" soldier does not have to attend any weekends - they will to train, get paid, get bounty etc but there is no compulsion involved. The "part-time" soldier has to turn up when he is told to iaw his contract (and writing that will be interesting). Equally, the unit will have to pay "part-time" soldiers when weekends are cancelled at the last minute as these agreements cut both ways - something it does not have to do for "casual" soldiers.

    And then we have the legislation for pro-rata benefits with full time employees for part-timers - paid holiday accrued at the same rate, equality of pay and so on. Lots of potential for problems here I think. I mean, do 30 days, get the 2.5 days paid hols - but when do you take it ? Why can't I get a MQ ? And so on.

    But the biggy for me is the impact on civvy employers. The potential for conflict is huge - if both your employers tell you to turn in one Saturday who wins ? Without serious legislative protection most employers may see TA membership as completely incompatible. At the very least you'll need your employers written permission to join, given the standard clauses about not taking on second jobs in most people's contracts.
     
  13. Dr_Evil

    While you argue very skillfully and persuasively, the points raised above by One_of_the_strange are quite important. Are you sure that this is an arguement that you want to win? I am sure that it is not simply a choice of Bounty or pension and there are other factors involved.

    Will everybody gain by making TA service pensionable? Is the price individuals and the system have to pay for that change really worth it? I suspect that many people may be perfectly happy with an annual tax-free bounty now as opposed to a paltry pension that is years away.

    Could you persuade the forum of the benefits that your changes would provide? Sorry if I am being simple and am missing the point. I am not against your proposal but I feel it may fundamentally alter the TA in a way that not everybody would wish for.

    Mr_Logic
     
  14. Where does all this hogwash about a link between getting a bounty or a pension come from?

    Bounty cannot simply be withdrawn without some real and meaningful justification. It cannot be justified and the effect on retention would be so dire it just isn't going to happen.

    There is enough money for both pension and bounty.

    All other nations with similar volunteer reserve forces pay both bounty and pension.

    Whilst an employer is able to give extra pay and allowances, they are not allowed to withdraw pay or bonus, except under the exceptional circumstances of being close to going out of business and such a cut is essential for survival, even then it requires negotiation.

    The MOD isn't bankrupt or even close to it.

    Dont look at the bright lights they are intended to confuse you!

    Cardinal
     
  15. OldSnowy

    OldSnowy LE Moderator Book Reviewer

    Cardinal -

    There is a finite amount of money. If a pension is payable, then the Bounty will stop. This is not hogwash, it is fact. Given that the Treasury don't like the Bounty as it is, any excuse to end it will be seized on very rapidly indeed.

    The MoD is not bankrupt, and no-one is suggesting it is but, like the NHS, it has costs rising faster than income. Priorities must be made, and pensions for the Reserves just aren't a priority.

    It is a simple choice, Bounty or Pension. The TA are not going to get both, and the one that will get young soldiers in (rather than keep old soldiers turning up) is Bounty.

    £1,500 now, tax-free, or the possibility of £200 a year when you are 60? Not much of a choice, really.