CWS 3.0: February 1, 2012

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Europe: Union Rights Challenged

Two recent news stories in Europe have highlighted inconsistencies in what many would assume to be a fundamental right in most countries: the right of workers to join a labor union.

In fact, the United Nation’s Universal Declaration of Human Rights specifically enshrines these rights in Article 23, subsection 4. Nevertheless, in Georgia last week, protests took place against the current labor code, passed in 2006, that allows employers to fire staff for joining a labor union. The labor regulations have been heavily criticized by international groups in the past and European Union officials have recently expressed concern at the restrictions on collective bargaining. It is now alleged that relations with Georgia could be at risk if it fails to introduce more protections for workers and that the labor market will have to be reformed if Georgia is to sign a free trade deal with the EU.

“The labor code has been the object of fierce criticism from international organizations for several years, yet the authorities are taking no steps to improve it,” said Irakli Petriashvili, chairman of the Georgian Trade Union Confederation. “Workers are effectively in a state of bondage and powerlessness. Employers have the right to sack employees at any time without prior warning or explanation, including for discriminatory reasons such as union membership.”

Labor Union Perceptions

According to the International Labour Organization (ILO), freedom of association is the “key element in ensuring respect for other fundamental rights at work” With its anti-union stance, Georgia sits alongside authoritarian dictatorships such as China. Meanwhile, a number of other countries have found creative ways to discourage and curtail labor union participation (despite having laws that supposedly uphold the right to association) such as Bangladesh, Brazil, Egypt, Indonesia, Mexico, the Philippines, Vietnam and a number of Gulf States.

Perceptions of the union movement vary widely per country and, indeed, per person. U.S. public opinion has traditionally been more ambivalent (and at times quite hostile) toward labor unions than Europe. In much of continental Europe, labor unions are accepted as key social partners in helping to shape employment legislation, however, even here, most employers and business owners could still be classified in the “skeptical” category!

The U.S. National Labor Relations Act, enacted in 1935 as part of the New Deal, guaranteed workers the right to form unions and to engage in collective bargaining — rights that were subsequently extended in the Taft-Hartley Act of 1947 and the Landrum-Griffin Act of 1959. In 2010, labor union density (the percentage of public and private sector workers belonging to a labor union) was 11 percent. For comparison, it was 19 percent in Germany, 26 percent in the U.K., 28 percent in Canada, and 70 percent in Finland. However, union density is not necessarily a proxy for union influence. Union density in France is only 8 percent but they still have significant influence over all aspects of employment because all workers benefit from union agreements.

Temps not Protected?

Like the U.S., employment law in the U.K. (Trade Union and Labour Relations Act 1992) is quite straightforward; if you are dismissed for a reason relating to labor union membership, recognition or subscription funds, the action will automatically be deemed to be unfair.

It caught most people by surprise therefore when a temporary agency worker in the U.K. lost a legal case last week against a firm that blacklisted him for raising concerns over health and safety issues and for his active participation in a labor union. The Central London Employment Tribunal ruled that the construction engineer, Dave Smith, was not entitled to legal protection against blacklisting because he was employed through a temporary agency. The court ruling comes even though Carillion, the firm that hired Smith as a temporary worker, admitted that their managers had used a blacklist with private information about him.

An organization called the Consulting Association maintained the blacklist on behalf of a number of construction companies. The blacklist contained Smith’s private information, including a photograph, address, national insurance number, work history, car registration, information about his family, and pages of documentation outlining his union activity. It has even been alleged that the company had spied on Smith by attending his union meetings and gathering information on his activities outside work.

The Tribunal found that Smith could not win the case against the company as he was not a direct employee. Smith is now expected to go to the European Court of Human Rights to appeal the court ruling. The ruling has wider implications as a decision in favor of the claimant would have made it easier for agency workers to bring claims calling for employment laws to be read compatibly with the European Convention.

Speaking after the court decision, Smith said, “The blacklisting conspiracy is a deliberate breach of human rights by big business. Human rights are supposed to apply to everyone but Carillion and their subsidiaries have got away with systematic abuse of power simply because I was an agency worker. If the British justice system does not protect workers’ rights then we will be taking our case to Strasbourg.”

Given the issues at stake, U.K. labor unions are unlikely to let this issue drop, so we can expect to hear more in the coming months.

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