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At the Nice summit, in December last year, the EU Heads of Government agreed a 'Charter of Fundamental Human Rights'. which included, after much argument, social rights concerning working conditions, social security, health etc. We examine here how the new declaration could aid unions in court cases.
As we have reported in the European Review in previous issues, the EU answered calls for a charter of rights by setting up a working group (convention) in June 1999 with the brief of deciding what form it should take and what should go into it. The convention which consisted of members of the European Parliament, national parliaments and the EU Commission, was lobbied by various organisations including the European Women's Lobby and the European Trade Union Confederation (see Issue 13). Two fundamental principles were at stake: firstly, should the charter include only 'traditional civil rights' (to life, liberty, conscience etc.) or be extended to 'social rights' (working conditions, social security etc.) and secondly should it have the force of law or just be a declaration.
Fierce debates took place on these issues with initial drafts of the charter being criticised for sexist language and lack of gender equality. Eventually the EU Charter of Fundamental Rights and Freedoms was presented to the Nice Council of Ministers last December. The governments of some Member States such as Germany, Sweden, and France wanted it to be fully enforceable in national courts while the U.K. and some other countries opposed legal status. A compromise was agreed whereby the charter included the social rights but remained a political declaration only, its final status to be decided at the inter-governmental conference scheduled for 2004.
What does this mean for trade unions involved in court cases ? The final form of the charter included article 12 on freedom of assembly and association, article 27 on workers' right to information and consultation and article 28 on the right to collective bargaining and action. Whilst these rights are minimal compared to those in many EU countries, they go much further than anything currently on the statute book in the U.K. It might be objected that as they have no legal force at the moment they will not affect actual cases but this view was soon undermined when the advocate of the European Court of Justice gave his opinion in February on the case brought by the broadcasting union BECTU (see Issue 14). Advocate General Tizzano agreed with the union that the Working Time directive entitled all employees to paid annual leave and that British regulations preventing those on short term contracts from receiving it could not be justified. Most relevantly, he used the new charter to back up his opinion. He admitted that 'formally..[it]..is not in itself binding' but that 'the relevant statements of the charter cannot be ignored' concluding that 'I consider that the charter provides us with .... confirmation ...that the right to paid annual leave constitutes a fundamental right'.
If this opinion is agreed to in the final judgement (as happens in 85% of cases) it opens up a whole new field in the enforcement of trade union rights. Not only EU institutions but Member States and even corporations and individuals might have their actions judged with reference to the charter when trade union rights are at stake. For example, if an employer closed down a factory without sufficient consultation they could be challenged on the grounds that a provision of the charter has been violated. This could only happen where EU law covers the subject at issue e.g. the directive on information and consultation, but as it is continuously expanding the charter would be referred to more and more. As 2004 approaches cases such as BECTU's will play an important rôle in determining the final status and any changes to the content of the charter.
The European Court of Justice has thrust the previously clearing view of the Acquired Rights Directive back into the fog from which it emerged due to previous cases. The Acquired Rights Directive, implemented by the Transfer of Undertakings legislation (TUPE) in the U.K., (see many previous issues) has caused endless confusion as cases brought before the court have been unpredictable in their outcome. However the Employment Appeal Tribunal attempted to sort things out by considering in each case whether there was an undertaking, whether it was being transferred and what assets were transferred with it. It concluded that even if no staff or physical assets were being transferred TUPE still applied if the contract was passed on.
Now the ECJ has contradicted this in the case of Mr Liskojärvi and Mr Juntunen who were bus drivers employed by a contractor to the council in Helsinki. When the council held a tendering exercise a new contractor won and the drivers were taken on but with worse terms and conditions. They applied to the court to decide if the directive could force the employers to change their minds. The Court ruled that, even though both the old uniforms and some of the previous staff were taken on, because the buses used were different 'no transfer of significant tangible assets' had taken place.
As reported in the last issue of the European Review the U.K. media union BECTU received an opinion in their favour on the controversial 13-week rule for paid leave. Now the court has confirmed February's opinion in its recently delivered judgement. It ruled that the British government had infringed the working time directive by insisting that the right to paid holidays would only apply where an employee had worked for longer than 13 weeks for the same employer. The U.K. regulations will now have to be amended.
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