Institute of Employment Rights - Spectre of the ECJ Conference

A couple of weeks ago I attended another excellent event organised by the IER, and sponsored by the SERTUC (and therefore free and with lunch! - thank you comrades).

The conference focused on the repercussions for British TU's of a batch of judgements from the European Court of Justice, specifically, the Viking, Laval, Ruffert and Luxembourg cases. I knew nothing of these cases prior to the case, although they were familiar to the (law student) comrade who went with me.

Suffice to say, the cases put, potentially, severe restrictions on the abilities of unions to take industrial action if the organisation they are fighting operates in different areas of the EU - the ECJ has effectively said that the right of a company to do business in different EU states trumps the rights of unions to take action. And, overruling the principle of English law that limits the amount of damages a union can be liable for in the event of industrial action (which was enshrined in law following the Taff Vale case, a case I know well having cut my A-Level History teeth on it) the court ruled that the Union could be held liable for the total losses of the company, which would, frankly, bankrupt most unions taking on any large organisation, witness BA's threat against BALPA in its most recent case.

So the conference was about two things: what these cases meant and how to fight it. I'm sad to say that there was a lot of long faces and Ominous Words of Warning, and not too much in the way of tactics. What there was did come from two, I believe, respected sources in the union world, John Hendy QC and Professor Keith Ewing. The proffered solutions were mostly legal, and I think my budding solicitor understood them better than I did, but there was some hope in legal challenges through the European Court of Human Rights, as well as trans-national collective bargaining.  Let us hope our leaderships rise to the challenge, if not, a motion or two to NDC might force them to (assuming they aren't too busy trying to figure out if they have to be re-elected or not).

The other issue highlighted by the last two cases is the matter of collective agreements. The ECJ essentially ruled that the Posted Workers Directive allows an employer to import labour, and pay them less and make them work under worse terms and conditions, and Unions can do nothing about it, unless there is a collective agreement that is universally applicable.

They took this definition to mean registered with a central body and applied to all employees working in a particular sector. Which, in the UK, means none, as even things like the NJC agreements don't apply to everyone (as Comrade Leary can tell us), and aren't "registered" as we have no body able to do this. So, should we try and fight such things, we are essentially screwed from the get go. It was pointed out that no action was taken against the Lyndsey dispute unions, although no one was clear as to why.

John Hendy did round off the conference with a lecture on why no UK union is going to challenge the rulings anytime soon, which is firstly because injunctions are so bloody easy to obtain in this country - the claimant just has to establish that there is a case to try (which, as he said "any employer cannot fail to do"), not that they are likely to win. The challenging of this can take 18 months, by which time the dispute is as dead as a proverbial dodo, so the employer wins by default.

Secondly, the duty to disclose has become more onerous in these cases. Normally, a union will be expected to disclose information pertinent to the dispute, but now the employers are going after reams and reams of information to establish "proportionately". The example given on how this would work would be a meeting of, say, UNISON's industrial action committee to authorise a strike. If a member of this committee so much as suggested that a lesser action, such as work to rule, was a possibility, then an employer could use this to show that a lesser form of action was possible and therefore the strike was disproportionate. Employers have even been demanding hand written notes that members of a committee made during such discussions.

The final point was the unlimited damages problem. Even a union as large as UNISON or Unite, with substantial budgets and reserves, could face bankruptcy in such a dispute.

Christ, now I've written it down it sounds even more depressing.

I'll have to write about something cheerful soon!