It seemed that the pensions dispute had been resolved – and then union members voted to reject it. So who decides when an agreement has been reached, asks Professor GR Evans

The press was quick off the mark to announce a resolution to the pensions dispute when talks with ACAS involving Universities UK and the University and College Union (UCU) seemed to have reached a satisfactory conclusion on 12 March. UUK reported on the “agreement” and announced that:

“UUK is now consulting with Universities Superannuation Scheme (USS) employers about a revised mandate for a forthcoming Joint Negotiating Committee on Wednesday 14 March.”

However, soon social media was carrying warnings that UCU branches around the country were going to reject it. On March 13 UCU, having put it to their members, announced that they had rejected the agreement.

The question that ought to have been asked sooner – who or what body or bodies actually have powers to reach an agreement – now needs to be addressed as a matter of some urgency.

Without reference to the question who has powers to bind the employers or the members, the USS Joint Negotiating Committee has been made up of equal numbers of “representatives” of the “employers” (through UUK) and scheme members (but through UCU), with a chair whose casting vote is likely to be determinative. The chair has regularly voted with the employers, thus outvoting UCU. It was on the basis of such decision-making that the Joint Negotiating Committee made its proposals in late January 2018.

Who may bind the employers?

It is far from clear that all vice-chancellors have powers to commit their universities to an agreement to which UUK is a party. It is not even clear all vice-chancellors are individually authorised by their universities to agree a solution.

In a university the employer is the governing body, usually the university council; in Oxford it is the medieval academic democracy of congregation and in Cambridge the counterpart Regent House. It is on the governing body that the decision has to be taken in each case. The governing body is responsible for determining the level of risk the university is willing to accept when a higher level of employer contribution is proposed.

Since 2008 the chair of the USS Joint Negotiating Committee has been Sir Andrew Cubie. He was certainly aware that it is the governing body not the vice-chancellor which has supreme decision-making powers on behalf of a university. From 2006 he was chair of the Committee of University Chairs (CUC), the companion association to UUK.

He took the lead in the framing of Key Performance Indicators, a CUC project of 2006, whose steering group included Sir Andrew Burns (another sometime CUC chair), Sir Ivor Crewe (on behalf of UUK) and Ewart Wooldridge (CEO of the Leadership Foundation for Higher Education 2003-2012, which provided governance training for members of university councils).

The KPIs were designed to make it possible for members of university councils to make decisions on matters including pensions, without too much expenditure of reading time on too many committee papers:

(1.20) “Governors comment that there is so much paper and reporting and measurement in higher education that they find it hard to distinguish the areas where they need to engage with these processes. They are naturally cautious about challenging the advice from the senior managers, and they find that even business-related issues like pay, pensions, financial accounts and strategic plans seem to come with a special higher education context, and to generate voluminous documents. Risk assessment is a good example of this. External governors are used to making risk-based judgements, and would take naturally to this approach in the governance of their institutions, but governing bodies often seem to be presented with a voluminous and detailed operational risk register, rather than a presentation on the ‘five things that could put us out of business’. “

“Key Performance Indicators”, with their pragmatic acceptance that councils and their equivalent in practice leave “operational compliance” to “the senior management” (1.24). So it proposes that the members of governing bodies should be supplied with a brief pack of information (25-30 pages) and notes that even “this is probably too much material”. “The one-page summary would show at a glance where any potential problems lie and individual governors could choose to refer to the particular back-up pages for the areas of interest” (1.48).

It would be helpful to see not only council minutes of universities relating to the USS dispute (which may often be read online but may be restricted to the intranet) but also the papers considered by Council members in approving their university’s position (if indeed they did so). Each vice-chancellor ought to be able to show a double delegation, of powers to commit the university and of powers to declare that the university has accepted whatever UUK agrees.

Individual members must be consulted

The method of consulting with scheme members also needs to be clarified. The proposal which caused all the trouble, the headlines and the strikes had come from the Joint Negotiating Committee at the end of January, with a note that acceptance of the proposal was “subject to a statutory consultation by employers with all affected employees (active members and employees eligible to join)”.

This must mean consultation with individual members. Consultation with a trade union is not enough. Not all USS members belong to UCU. In some universities only a tiny proportion are UCU members and in Cambridge UCU is not even a recognised trade union so small is its membership.

Individual consultation with affected members has been scheduled and must in some form go ahead, but this is between the member and the pension scheme not between employer and employee. Representative negotiating and agreement through a trade union cannot be a substitute.

So who can decide?

On 13 March that JNC meeting scheduled for 14 March began to seem rather a waste of time. What could it actually decide? If, as seems not improbable, the UUK members vote one way and the UCU the other and the chair once again votes with UUK, there is a decision, but apparently not one binding on either the members or the employers, surely? Too much is at stake for it to be acceptable for the USS trustee to allow the unsatisfactory JNC arrangement to continue.