The European Court of Human Rights Rules on the Limits of a Trade Union's Freedom of Expression
On 12 September 2011, the European Court of Human Rights (ECHR) in Strasbourg delivered its judgement in the case Palomo Sanchez and others v. Spain. In this judgement, the Court confirms the right to freedom of expression but takes the view that this right cannot be taken advantage of to harm others.
In this case, a number of deliverymen of a Spanish company sought to secure recognition of their social security protection. Therefore, they set up a trade union. They also brought several sets of proceedings against the company. In one of these proceedings, two independent deliverymen testified in favour of the company. The trade union reacted to this with a publication in its newsletter of a cartoon of a sexual nature featuring the two witnesses and the HR manager (the newsletter being distributed among the workers and posted in the company). Inside the newsletter, articles criticized the fact that those independent deliverymen had testified in favour of the company. Moreover, the language used was offensive. As a consequence, the company decided to dismiss for serious cause the trade union representatives who had distributed the newsletter.
Continue Reading...New European Works Council Rules in Force
Significant changes to the UK legislation on European Works Councils (EWC) enter into force on 5 June 2011. The reforms are contained in the Transnational Information and Consultation of Employees (Amendment) Regulations 2010, which implement the requirements of the recast European Works Council Directive 2009/38/EC (PDF).
The recast Directive made a number of changes to the original EWC Directive (94/45/EC) following a review of its operation by the European Commission. The objectives were as follows:
- to increase the number of EWCs established;
- to improve the effectiveness of information and consultation in EWCs;
- to provide legal certainty; and
- to enhance coherence between European and national-level consultation.
The recast Directive must be implemented by all EU member states by the 5 June 2011 deadline, before the original Directive is repealed with effect from 6 June 2011. However, the new rules do not apply to existing agreements for transnational consultation that were entered into before 22 September 1996 (often referred to as "Article 13 agreements"), apart from in exceptional circumstances. Also generally exempt from most of the changes are EWC agreements that were created or revised between 5 June 2009 and 4 June 2011. All other EWCs will be subject to the new regime.
Further information on the changes and, in particular, their likely practical impact in the UK can be found in Lewis Silkin LLP's guide (PDF) to the recast EWC Directive.
Image credit: rzdeb
Supreme Court Narrows Constitutionally Protected Collective Bargaining Rights
On April 29, 2011, the Supreme Court of Canada released its decision in Ontario (Attorney General) v. Fraser holding that the Agricultural Employees Protection Act, 2002 ("AEPA"), which created a new and distinct industrial relations regime for agricultural workers, was constitutional. Fraser makes it clear that the guarantee of freedom of association in section 2(d) of the Canadian Charter of Rights and Freedoms (the "Charter") does not require the enactment of a particular model of industrial relations or a particular model of collective bargaining.
The majority decision determined that the Court of Appeal had significantly overstated the scope of collective bargaining rights that are protected by section 2(d) of the Charter. Based on a much narrower approach to collective bargaining under the Charter, the majority concluded that the AEPA satisfies the applicable constitutional requirements because it provides agricultural workers in Ontario with a meaningful process by which they can pursue workplace goals. Justices Rothstein and Charron concurred in the result reached by the majority, but for quite different reasons. They would have reversed the Supreme Court's earlier decision in BC Health Services on the grounds that the decision, which established that section 2(d) of the Charter includes limited protection for collective bargaining, was wrongly decided and that the majority decision maintained an unworkable distinction between the process of collective bargaining and collective bargaining outcomes.
Fraser must be viewed as a significant retrenchment from the broad reasoning in BC Health Services. The Supreme Court emphasized that section 2(d) of the Charter requires that employees' associations be able to participate in a meaningful workplace process with an employer, which includes the right to make representations to the employer and to have those representations considered by the employer in good faith. In the Supreme Court's words, only legislation that "makes good faith resolution of workplace issues between employees and their employer effectively impossible" will violate section 2(d). Also notable is the Supreme Court's rejection of the Ontario Court of Appeal's determination that BC Health Services requires lawmakers to enact a particular labour relations model or specific statutory requirements in order to comply with section 2(d) of the Charter.
For more information on the decision, please see Heenan Blaikie's Labour and Employment in the News, "Ontario v. Fraser - The Supreme Court of Canada Significantly Narrows the Scope of the Constitutional Protection of Collective Bargaining" (PDF)
Protected Employees and the 2012 Social Elections: A Sole Candidate also Enjoys Protection against Dismissal
The Supreme Court has again handed down a judgment from which it is clear that the combination of on the one hand protected employees and on the other hand social elections is still giving rise to disputes.
The law requires for instance that, at all times, at least two employee representatives have to be seated in the Works Council and/or the Committee for Prevention and Protection at Work. This is also the reason why an employer can stop the election procedure in his undertaking (TOU) if only one candidate is proposed. In a recently published judgment of 4 April 2011, the Supreme Court gave its opinion about the scope of the dismissal protection of such an employee who was the sole candidate for the social elections.
In this judgment the Court clarified that, in this case, the employee concerned is not considered to be effectively chosen and therefore only enjoys a protection as a candidate employee representative (during four years). This also means that, if a similar scenario would repeat itself during the next social elections, the employee concerned would not be elected twice and would therefore be protected at the second social elections for a duration of two years (instead of four years).
In this context, we also wish to remind you that the so-called "hidden protection period" for the candidates at the 2012 social elections already starts on X-30. In function of your election calendar, this period therefore starts between 8 and 21 January 2012.
Employment Newsnotes (Issue 50, Winter 2010/11)
Employment Newsnotes (PDF) is an occasional publication by Lewis Silkin covering recent UK employment law developments in an accessible, succinct and entertaining way. The 50th issue, just published, is a "Movie Special" that revisits memorable motion pictures of the past few years as the basis for topical articles on:
- Equal pay (Made in Dagenham)
- Industrial action (Billy Elliot)
- Sexual orientation discrimination (Philadelphia)
- Business immigration (Green Card)
- Facebook and the workplace (The Social Network)
- Whistleblowing (Silkwood)
- Harassment at work (Disclosure)
Settlement Reached in NLRB Facebook-Related Termination Case
The National Labor Relations Board announced that a settlement has been reached in a highly-publicized case involving the discharge of an employee who called her supervisor a mental patient in a "friends-only" Facebook post in violation of a company's social media policy. Although the settlement has no precedential value, the case appears to signal the current NLRB's intention to bring claims seeking to protect employees' social networking activity even if such activity pushes the boundaries of respect and non-disparagement in the workplace. To learn more about this development and its implications for employers, please continue reading at Littler's Workplace Privacy Counsel blog.
Photo credit: fullvalue
Interprofessional Agreement 2011-2012: A Decisive Step Towards Harmonizing the Status of Blue- and White-Collar Employees
On 18 January 2011, the social partners agreed a draft Interprofessional Agreement ("I.P.A.") for the years 2011-2012. This draft still needs to be submitted to several institutions of the group of social partners, after which the government will take the necessary legal action in order to put the measures in place.
Besides the usual subjects (linking social payments to welfare, salary norms, extending the measures relating to early retirement, etc.), the draft I.P.A. contains an important chapter relating to harmonizing the status of blue- and white-collar employees.
As of 2012, the notice period for white-collar employees whose annual gross salary exceeds 30,535 EUR (amount for 2011), would be one month per year of commenced seniority, with a minimum of three months (the trial period is not taken into consideration). This rule would thus replace the Claeys formula as a reference for these employees. Clauses providing for a different notice period could still be agreed on, at the earliest upon entry into service, for those white-collar employees earning more than 61,071 EUR gross per year (amount for 2011). Note, however, that this new regime would in any case only apply for new employment contracts, which means that for all existing employment contracts, the current principle on the basis of which the notice period is determined, would continue to apply. The Claeys formula will thus remain relevant for the years to come.
Continue Reading...CBA no. 62 quinquies and CBA no. 101: The New Regulatory Framework Concerning European Works Councils
During the session of 21 December 2010, the social partners signed two collective bargaining agreements (CBAs) that will form the legal framework concerning European Works Councils from 6 June 2011.
CBA no. 101 is the transposition into Belgian law of European Directive 2009/38/EC on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees. This Directive is at certain points fundamentally different from the previous Directive 94/45/EC (for example, concerning the concepts 'information' and 'consultation,' the constitution of the European Works Council, ...). To ensure a text that was easily comprehensible, the social partners have chosen to enter into a new CBA. From 6 June 2011, this CBA will be applicable to new agreements to be entered into and possibly even to already existing European Works Councils.
Continue Reading...Advice of the National Labour Council
As is the case before every social election procedure, the minister of Employment requested an advice from the National Labour Council (NLC) with regard to a number of issues raised during the former social elections (and with regard to its possible solutions).
The NLC rendered its advice on 7 December 2010 (advice nr. 1748 - French version (pdf) - Dutch version (pdf)).
Continue Reading...Work Stability Indemnity: Not Submitted to Social Security Contributions
Certain collective bargaining agreements compel the employer to follow a specific procedure when dismissing an employee. In general, an employer's failure to respect such procedure entitles the employee to a so-called work stability (or security) indemnity.
In accordance with social security regulations, such indemnity is excluded from the remuneration submitted to social security contributions since it is "an indemnity due in the event of non-respect by the employer of his legal, contractual or statutory obligations."
However the National Social Security Office (NOSS) presents a contrary opinion in its 'Instructions to employers.'
In its judgment of 10 May 2010, the Brussels Labour Court of Appeals invalidated the position of the NOSS concerning an indemnity provided for in the insurance industry (collective bargaining agreement of 8 November 1987). The court thus confirmed that social security contributions were not due on these indemnities.
This case-law can also be applied to other industry sectors or companies where collective bargaining agreements contain similar work stability clauses.