Representation of workers

Constitutional Court Retains the Current Level of Protection Offered to Employee Representatives

The Belgian Constitutional Court considers that the protection against dismissal afforded to (candidate) employee representatives in the Works Council and/or the Committee for Prevention and Protection at Work does not violate the principle of equality.

The Labour Tribunal of Huy had asked the Constitution Court whether the restriction of grounds for dismissal (principally serious cause and economic or technical reasons) and the draconian compensation for dismissal (up to eight years of salary) did not violate the principle of equality compared to those of other protected workers such as union representatives or prevention advisors.

In its judgement of 10 October 2012, the Constitutional Court ruled that the specific protection regime laid down in the Act of 19 March 1991 is justifiable.

The Constitutional Court ruled that this regime rests upon a legitimate distinction with respect to a union representative, since the regime for union representatives is not set down by law but by a collective bargaining agreement closed at national level no. 5 and since union representatives are appointed in a fundamentally different way than are (candidate) employee representatives.

With regard to a prevention advisor, the Constitutional Court ruled that, unlike an employee representative, such individual is not elected by all the employees and does not represent the entire staff taking into account his/her independence.

Action point

Ensure that no decision to dismiss a protected employee can be considered without full regard being systematically paid to the requisite legal/sectorial protection enjoyed by such individual.

High Court Clarifies 'Adverse Action' Law

By Chris Gardner, Partner, and Sonia Millen, Senior Associate.

The High Court has confirmed that employees who act inappropriately but do so under the guise of union activity are not immune from disciplinary investigation and action.

The High Court unanimously overturned the Full Federal Court decision - a decision of great concern amongst employers.

The High Court decision has brought greater clarity to the breadth of the general protections provisions in the Fair Work Act 2009 (Cth) and has implications well beyond the issue of inappropriate workplace behaviour by employees who are union representatives.

The Board of Bendigo Regional Institute of Technical and Further Education v Barclay - [2012] HCA 32

Read the full post here.

NLRB Ruling Complicates Employers' Internal Investigations

In a ruling that affects both union and non-union employers, the National Labor Relations Board held that an employer must establish a specific legitimate business justification for requiring employees to maintain confidentiality during internal investigations of employee complaints. In Banner Health System d/b/a Banner Estrella Medical Center, 358 N.L.R.B. No. 93 (2012), the Board, by a 2 to 1 majority, held that an employer may not maintain a blanket rule prohibiting employees from discussing ongoing investigations of employee misconduct. According to the Board, such a rule violates Section 7 of the National Labor Relations Act, which protects employees' rights to engage in "concerted activities" for their mutual aid and protection, regardless of whether the employees belong to a union. The Board's decision continues its recent trend of invalidating common employer practices and policies on the stated grounds of protecting Section 7 rights. To learn more about the decision and its potential implications for employers, please continue reading Littler's ASAP, Mum's Not Necessarily the Word: NLRB Complicates Employers' Internal Investigations, by John Skonberg, Earl "Chip" Jones III, and Gregory Brown.

Québec Labour Board Draws Line Between Protected Union Activity and Political Protest

By Kevin MacNeill

Desjardins v. Tessier Ltée involved a reprisal complaint under the Act Respecting Labour Relations, Vocational Training And Workforce Management In The Construction Industry (the "Labour Relations Act").

The employer had contracted with mining company Canadian Royalties Inc. to provide cranes and operators on a construction site located in northern Québec.

The complainant, Desjardins, was a crane operator assigned to this site. He also happened to be a union steward.

In October 2011, Desjardins participated in a province-wide protest against Bill 33, An Act To Eliminate Union Placement And Improve The Operation Of The Construction Industry, which has since become law. (Among other things, this law provides for the end of union placement such that union associations and employers' associations that wish to refer employees must do so through the Commission de la construction du Québec, after obtaining a licence to do so. It is prohibited to attempt to force an employer to hire specific employees or a specific number of employees).

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Collective Redundancy Consultation Obligations to be Relaxed

By Madeleine Jephcott

JobLossII.jpgThe Government is proposing to reduce the UK's 90-day minimum consultation period for large-scale redundancies.

While the rules governing collective redundancy consultation have remained relatively unchanged since they were introduced in the mid-1970s, the same cannot be said for the UK labour market. In an increasingly global and competitive market, the Government sees the existing redundancy consultation scheme as a barrier to competitiveness, flexibility and growth.

As a result, the Department for Business, Innovation and Skills (BIS) has published a consultation document suggesting some changes to the legislation. (This follows an earlier call for evidence on the operation of the rules, which closed in January this year.) The main proposals are:

  • reducing the 90-day minimum consultation period for large-scale redundancies; and
  • introducing a new Code of Practice to address a number of key issues affecting redundancy consultations.

Reducing the Consultation Period

Currently, employers must consult with trade unions or employee representatives for a minimum of 30 days before the first redundancy dismissal takes effect when proposing to dismiss between 20-99 employees, and for a minimum of 90 days when proposing to dismiss 100 or more. The EU Collective Redundancies Directive does not prescribe minimum consultation periods and the Government regards the time periods in the UK legislation as unacceptable "gold plating".

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The New Hungarian Labour Code Enters into Force

By Boglárka Kricskovics-Béli of CLV Partners (the Hungary member of Ius Laboris)

ChangesII.jpgThe new Hungarian Labour Code promises a fundamental overhaul of that country's labour law. Intended to improve competitiveness and increase employment in the face of the current economic crisis, the revised Labour Code introduces new forms of employment, and significantly changes employment rules from hiring to termination.

The new Code recognizes atypical or flexible forms of employment, and expressly allows employees to work for different employers in the same position simultaneously.

Different salaries may be paid to employees of the same employer who work in different regions.

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Tribunal Finds Union President's Sexist Blog Posting about a Manager Was Protected Union Speech

The Human Rights Tribunal of Ontario this week released its decision in Taylor-Baptiste v. Ontario Public Service Employees Union, which rejected a female manager's claim that sexist comments made about her on a union blog violated her equality rights under the Human Rights Code. Union rights to expression and association under the Canadian Charter of Rights and Freedoms were key to this outcome. Read the full entry at Heenan Blaikie's Workplace Wire blog.

Collective Redundancies in France Not Void for Lack of Economic Grounds

By Kaela Ji Eun KIM

A significant ruling of the French Supreme Court (Cass. soc , May 3, 2012, No. 11-20741) has reaffirmed that Works Councils cannot challenge collective redundancies for lack of economic grounds.

French law provides that, where a collective redundancy exercise involves ten or more employees, the employer must develop and implement a social plan. This must offer affected employees assistance in finding a new position and include a sufficient variety of services, such as training and outplacement. In cases where an employer's plan does not meet the legal requirements, the Works Council can bring proceedings to nullify it and effectively stop the redundancy procedure.

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Employer May Not Demand List of Union Members

Pursuant to the resolution of the Supreme Court of 24 January 2012 (III PZP 7/11) a trade union may refuse to provide the employer with a list of union members, and such refusal does not release the employer from the obligation to consult the union in individual employee matters. In effect, every time the employer intends to give a notice of termination to an employee employed for an indefinite period of time, they should ask the union whether this employee is a member. If they are, the consultation is the second step of the procedure. The Supreme Court justifies its position on the grounds of the protection of employees' personal data, which include information on whether an employee is a union member.

Top Tips for Effective Bargaining

By Anthony Wood and Natalie Spark.

As we approach the third anniversary of the commencement of the Fair Work Act 2009, Fair Work Australia is continuing to make decisions which either clarify or confuse bargaining processes. 

Will your organisation be bargaining this year? Is the business aligned on what it wants to achieve from negotiations? How can you use the legislation to your advantage in negotiations? In this article, we share our top tips for effective bargaining and provide insight on how you can use the legislation to your advantage.

Read the full post here.