MEETING WITH EUROPEAN COMMISSION

LEAF’s meeting with the European Commission’s legal team took place in Brussels on the 1st of April 2003 as planned.

Following the United Kingdom’s letter, stating categorically that following a transfer the new employer could unilaterally and Lawfully end a collective agreement because collective agreements were not binding in English Law, officials within the Commission’s services advised us that the United Kingdom’s response provided grounds for the Commission to pursue our complaint further.

We were also orally advised that we may need to overcome the question of political will that would undoubtedly be encountered, because our complaint was against the United Kingdom and not one of the less significant Member States. In short the Commission was likely to be reticent about bringing proceedings against the UK.

The clear failure of the effective operation of the Acquired Rights Directive in the UK, resulting from the non-binding nature of collective agreements under Section 179 TULRA, was and remains the mainstay of the logic of our argument that the Commission was bound to bring Infringement Proceedings action against the UK. Therefore, regardless of the rider provided by an officer of the Commission’s services, concerning the possible lack of political will of the Commission to act on our complaint, we anticipated a rather different meeting to the one we actually encountered.

There is little doubt that our complaint to the Commission, especially in the context of the UK’s brazen response to the Commission’s letter effectively trashing the protection of the Directive, had created a sense of panic among the officials who serve the Directorate's hierarchy.

That this was so was made clear by the exasperated, often aggressive, and garbled approach exhibited by a key figure from the Commission’s Infringement Committee, who was a late replacement for the Head of Legal Services at the meeting.

The fact was that the UK had laid the cards on the table in such a barefaced fashion, that it begged the Commission to act on behalf of United Kingdom citizens to redress the protections of the Directive. However, it was clearly left to the officials to fumble rather clumsily and unconvincingly in their presentation of false arguments as to why the Commission should not pursue the matter. Indeed the character and atmosphere of this meeting was significantly at variance with our earlier meeting with the Commission’s services.

That earlier meeting had led to the Commission writing to the United Kingdom on the question of the lack of legal force of collective agreements following the transfer of an employer, and the victimisation of staff in regard of the failure to make pay increases and deny career progression. It was obvious to us that the official from the Infringement Committee had been drafted in to try to head us off once again.

He did not and will not succeed for the reasons we set out below.

1] The United Kingdom’s domestic Law position is unequivocally in conflict with the effective operation of Community Law.

2] The application of Community Law by the UK courts resulted in domestic Law being given super-ordinate status over Community Law – the tail wagging the dog.

3] In the case of [Commission v. United Kingdom]- Case 165/82 – the European Court of Justice’s judgement provided a clear line of reasoning that, in regard of Article 3[2] of the Acquired Rights Directive, a legal obligation was placed upon the transferee of an undertaking to observe the terms of a collective agreement, irrespective of the non-enforceability of collective agreements under UK domestic Law.

4] The above case is cited in the Commission’s own National Report.

5] That the TUPE regulations “preserve” the non-enforceability of collective agreements as against the transferee. A point also made in the Commission’s National Report.

Mr. Feenstra, speaking for the Commission said, the Commission is only able to act in circumstances of the incorrect Transposition of the Directive into UK Law or the incorrect Application of the Directive by the UK courts.

While the TUPE regulations speak of observing the terms of a collective agreement on the same terms as the transferor, because collective agreements are non-binding in the UK, this automatically means that Article 3[2] of the Directive is not worth the paper it is written on.

No protection of the terms and conditions of employment is therefore afforded to UK citizens, following a transfer of employer. The wording of TUPE is another legal sleight of hand – appearing to give protection to the employee, when in fact it does not.

The Transfer of Undertakings Regulations [1981] originally transposed Directive 77/187 EC into UK Law. It was clear at that time that the non-binding nature of collective agreements in UK Law would result in a clear conflict between domestic Law and Community Law; a conflict that should have been dealt with at the original date of transposition.

In order to meet the requirements of article 3[2] of the Directive – ”that transferred collective agreements had legal force and could not be ended on the whim of a new employer” – collective agreements in UK Law should have been made legally binding in 1981 to meet the requirements of the Directive.

If action by the UK had been taken on the matter at the time of originally transposing the Directive, the Directive would have been fully operational today, and no arguments as to so-called “new rights” could have obtained.

The failure of the Directive to operate fully in terms of its protections is therefore, in our view, a TRANSPOSITION PROBLEM that dates back to the original transposition of the Directive in 1981.

When we raised the question of the MISAPPLICATION of Community Law by the courts, we were rudely told by Feenstra that the Commission could not act on the basis of “one” case, – even though the case we brought was a test case that potentially affected thousands of Lecturers – and that to satisfy the Commission, we would have to demonstrate a number of other “High Court” findings that misapplied the Directive in the same way – i.e. cases that found that, as collective agreements were not binding in the UK, Article 3[2] of the Directive gave employees no protection in the event of a transfer of employer.

NOTE: The non-binding nature of collective agreements is enshrined in Section 179 Trade Union & Labour Relations [Consolidation] Act 1992. In other words, it is statute Law. If a transferee employer wished to end collectively agreed terms following a transfer, no court in the UK whether “high” or “low” would be in a position to say that the new employer could not end the collective agreement. The courts would have to adhere to Section 179 of the Trade Union and Labour Relations [Consoloidation] Act [1992].

Further, the position of the courts in the UK would also be dictated by the case Law of the House of Lords in British Fuels v Baxendale and Wilson v St Helen’s Borough Council [1998]. In that case Lord Slynn stated that the purpose of the Directive was “not” to alter the rights and obligations after a transfer. In common language, as collective agreements were not binding before the transfer, they could not be regarded as binding after the transfer.

In other words, to make collective agreements binding post-transfer would be a new right according to Slynn’s analysis, and according to Slynn not allowed.

We say that giving legal force to collective agreements is not a new right, but the upholding of an existing right in Community Law. See LEAF’s transposition argument above.

In the current circumstances therefore, in addition to having to observe and correctly interpret TULRA, the courts would have to follow the case Law of the highest court in the land – the House of Lords. The findings of the UK courts in such circumstances would therefore be a foregone conclusion and Feenstra’s demand for further examples of the misapplication of UK Law by the courts – a time wasting RED HERRING.

RESULT: Currently, article 3[2] of the Directive has no force in the UK, apparently regardless of the obligation placed on Member States by Article 10 EC to ensure the full and proper operation of Community Law.

LEAF will not allow the Commission to abrogate its responsibility to ensure that Directives promulgated by the European Community are fully upheld by Member States.

PLEASE REMEMBER THAT THE COLLECTIVE AGREEMENT KNOWN AS THE SILVER BOOK REPRESENTED THE ENTIRE CONTRACTUAL RELATIONSHIP BETWEEN LECTURERS’ AND LOCAL AUTHORITY EMPLOYERS BEFORE APRIL 1993.

1] A full response to the Commission will be forthcoming.

2] A letter will be sent to the European Ombudsman setting out the Commission’s maladministration of our complaint.

3] We will Petition the European Parliament on the matter of the Commission’s mishandling of our complaint.

 

 

LEAF TO MEET WITH THE COMMISSION ON THE TENTH ANNIVERSARY OF INCORPORATION

A meeting with the Commission’s services in Brussels has been arranged for the 1st of April 2003. The date of the meeting is an auspicious one, coinciding as it does with the 10th Anniversary of the Incorporation of Colleges in the United Kingdom. The Union’s General Secretary and National Officer will attend the meeting, together with two Members of the European Parliament who have provided considerable support for LEAF’s action. Snrs. Dorrego and Pereira will represent the Commission’s services.

The object of the meeting is to present further forceful arguments that reinforce our view that the United Kingdom has failed to meet its obligation to ensure that Community Law is fully functional. LEAF will provide unequivocal evidence regarding the failure of Community Law to protect the interests of UK citizens in the event of a transfer of their employer, and for that reason will insist that the Commission commence Infringement Proceedings against the United Kingdom.

Members will be aware that the United Kingdom continues to insist that it is removed from the field of application of article 3[2] of the Acquired Rights Directive, by virtue of the fact, that in domestic Law, collective agreements are presumed not to be legally binding. In essence, the Government, and the UK courts, continue to attribute super-ordinate status to domestic Law over Community Law. The consequence is that Community Law is relegated to a subordinate position when the reverse should apply.

The position adopted by the United Kingdom in regard of article 3[2] is a clear case of the tail wagging the dog.

We say that in order to give full and proper effect to the Acquired Rights Directive and the TUPE Regulations, collective agreements must be construed to be legally binding in the event of a transfer of employer. Given that scenario, a retrospective application of the position, as modified to meet the requirements of Community Law, would have major implications for the situation faced by Further Education Lecturers since 1993.

If, as we believe it must, it is determined collective agreements must be regarded as legally binding to enable the spirit and purpose of Community Law to be met, it would mean that post-transfer, even new employees in Further Education colleges should have been appointed on Silver Book terms until such time that those terms were re-negotiated.

Further, LEAF will be looking to the European Commission to take action in regard of the continuing discrimination that has been uniquely leveled against those Lecturers who remained on Silver Book terms. When we spoke to the Commission services on the matter of the pay and career freeze back in September 2002, a policy which is now in its 10th year, great concern was expressed by the Commission’s services in regard of the punitive action taken by the colleges and the acquiescence of the Government.

Members’ are assured that LEAF will be vigorously pressing for decisive action on the matters we have raised with the Commission regarding the massive injustices that have been suffered by Lecturers in Further & Higher education since 1993.

It is interesting to note that the Government has recently backed a deal to protect the pay and conditions of council workers whose jobs are privatised.

Lest we forget, before the 1st of April 1993, Lecturers were “council workers”.

Sadly, no government, Tory or New Labour has shown any interest whatsoever in rectifying the miserable treatment of Further Education Lecturers, nor will the so-called deal be retrospective.

However, members can take heart that their Union has the competence and the tenacity to ensure that we shall succeed in achieving the redress that is due to those who work so hard within our profession.

LEAF– Working Unstintingly for Justice for its Members

JOIN US TODAY AND BREAK OUT OF THE CYCLE OF LEARNED HELPLESSNESS.

 

 

LEAF CALLS FOR EU ACTION ON LECTURERS’ CONTRACTS SCANDAL

LEAF officers to meet commission’s legal services

Readers of this web-site will recall that LEAF has lodged a number of specific complaints relating to the UK Government’s actions before, during and after the incorporation of Colleges in 1993. We specifically focused on the rights of Lecturers following the transfer, and have contended throughout the past ten years that the Lawful rights of Lecturers have been unLawfully trashed. We present below an update for the benefit of all Lecturers in the sector, in order that our present position is clear.

 

The UK Government’s response to the EU Commission

LEAF officers met with the Commission’s Services in September 2002, to further elaborate and provide supporting evidence and legal argument in support of our complaints on the matter of Lecturers’ contracts. Following our detailed submission, the Commission agreed with LEAF’S contention that a number of fundamental questions needed to be answered by the UK Authorities. The Commission duly wrote to the UK Authorities in October 2002, receiving a response on 9 December 2002. That response has now been made available to LEAF.

Although the replies to the specific questions put (see previous material for details) were, in our view, predictable, the letter highlighted the fundamental differences between our views on the ARD (Acquired Rights Directive) rights of Lecturers (and by extension, every worker in the UK who works on a contract that has collectively agreed terms– millions in number), and that of the UK Authorities.

Put simply, the issue at dispute is this: we say that the UK position on the non-legally binding nature of the collective agreements in the UK, has enabled the Government, now backed by the UK courts, to claim that it is removed from the field of application of the Acquired Rights Directive, in respect of all references in Article 3(2) of that Directive, relating to collective agreements, which by virtue of this interpretation, are rendered ineffective.

Our clear conviction is that such an interpretation collides with the protection afforded by the ARD, and that the ARD must take superordinate status in this conflict.

 

Why we believe we are right and that we will win

The above situation, which appears to be the settled position of the UK Authorities, is the allegedly 'legal' basis for the farcical situation that was encountered by Lecturers following incorporation in April 1993, when despite the apparent protection of European Law, they: were subjected to a pay and promotion freeze, suffered harassment and intimidation to sign a new personal contract, received deliberately wrong and misleading information from their new employers, and were threatened with disciplinary action, dismissal or redundancy if they objected.

Many Lecturers said to LEAF, which came into being at the time of these events: ‘But we know that what’s happening is unLawful’. We agreed, but had to begin the long process of challenging the employers, by seeking legal redress. That process has now led us to the EU Commission’s Legal Services.

 

Six reasons why you should be confident of our stance

We have always believed that our position on this matter is correct for several reasons.

Firstly, there is a trail of factual evidence, going back to a time before the transfer, which demonstrates unequivocally the then Government’s intentions to destroy collective agreements. The transfer was used (unLawfully) to effect this.

Secondly, the Government assumed that the transfers were not within the field of application of the Directive. NATFHE’s successful application in October 1992 that the impending transfer fell within the scope of the ARD put paid to earlier assumptions that new contracts could be effortlessly introduced following the transfer. It did not stop them, though.

Thirdly, our interpretation of the status of collective agreements in the context of a transfer has support in the case Law of the European Court of Justice. That is why we asked both UK courts, which heard our case, for a reference on key questions of European Law. Incredibly (but, we think, deliberately) both courts refused, claiming that the issues were ‘clear’.

Fourthly, as stated above, we are firmly of the conviction that the UK Courts’ view that the conflict between National Law and European Law on collective agreement rights should be resolved in favour of domestic Law, is fundamentally wrong.

Fifthly, that the present state of affairs is effectively allowing the UK an ‘opt-out’ clause from the Directive, uniquely in Europe, and obviously wrongly.

Finally, we have waited for nine years for a ‘killer punch’ from the employers’ side on our case. That is, we have looked for arguments from their side which were irrefutable. They haven’t come. Because they don’t have any! Instead we have had evasion, false reasoning and sophistry.

None of that has persuaded us.

Perhaps the employers and the UK Authorities thought that the matter ended there. Unfortunately, for them it didn’t!

 

What are we asking for?

We are now asking the Commission to bring to an end ten years of shameful discrimination against Lecturers in the UK. To be clear about this, and for the avoidance of doubt, we are saying that the contracts of all Lecturers in the sector are protected by the provisions of the ARD, when properly interpreted. This applies to Silver Book, New Contracts, and includes Lecturers who have joined since incorporation, not merely those whose contracts transferred.

In case we are wrong about this, we are happy to submit our arguments to the European Court of Justice.

The pay and career progression freeze was unLawful, as was the individual transfer of Lecturers from the collective agreement, which, of no small importance, was written into individual contracts.

Our clear view is that the UK is also in breach of Article 10 EC which carries a responsibility to give effect to the objectives of the Community.

 

New meeting arranged between LEAF officers and Commission

Following the response of the UK Authorities, which contained no meaningful or substantive answers to the Commission’s enquiries, a further meeting has been arranged, to take place in March 2003. LEAF has submitted a position paper to the Commission summarising the situation at this juncture, and our settled position on this critical matter. (link to document)

Final preparations are now being made to present detailed arguments which we believe will remove any doubts about the correctness of our position, and, ipso facto, of the incorrectness of that of the UK Authorities.

These argument will be forcefully presented to the Commission in March.

 

We pay tribute to your support and encouragement

LEAF has had to carry this battle to the employers alone. Well, not quite alone. We acknowledge the steadfast support of LEAF members and other Lecturers throughout the past ten years.

We pay particular tribute to those Lecturers who have tried to hold out against the unLawful actions of the College employers.

To those Lecturers who remain on the Silver Book, we say to you that we are moving as fast as we can to bring relief. We believe that the debt of gratitude that is owed by all Lecturers to these die-hard professionals will only be fully realised later.

We ask all Lecturers to support LEAF’s stance and to bring the details we have given here to their colleagues’ attention. Print off and study this article and discuss it with your colleagues.

Contact us on our phone number or by email at leafunion@hotmail.com to discuss any queries arising from our work. It is very important to realise that our strategy is one to raise the pay and conditions of all Lecturers.

We are very clear about one thing: no settlement will take place that does not include LEAF, and that does not deal with all outstanding grievances. That is why the morass that is the present fragmented pay negotiation system will also be a casualty of LEAF’s victory.

A further information item on other aspects of our complaint will be issued very soon

 

 

LEAF COMPLAINT TO EUROPEAN COMMISSION– – FURTHER DEVELOPMENTS

Following LEAF’s complaint to the EU Commission and a subsequent meeting between Commission Officials and LEAF Officers in which detailed argument was presented in support of the Lecturers’ case, the Commission wrote to the United Kingdom Authorities in October 2002 to ask for comments on two specific issues. These were the pay and promotion freeze imposed on Further Education staff who retained their pre-transfer conditions following incorporation, and the further restrictions placed on retirement benefit eligibility by the United Kingdom Government in 1997. These matters are central to the contractual dispute that LEAF has with the Further Education employers in the UK and we understand that the United Kingdom Government has now responded to the Commission.

 

We Remain Completely Confident of the Correctness of our Stance

Although the details of the Government’s response have yet to be made available to us, we are absolutely certain that the UK Authorities will be unable to explain satisfactorily (in the sense of being able to justify in European Law) the oppressive policy pursued for ten years against Further Education Lecturers.

It is absolutely central to LEAF’s view on the matter of your pay and conditions of service, that the strategy employed by the UK Government, the CEF (now AOC) and the individual college employers was, in design and execution, intended to circumvent your rights in European Law. We are extremely confident that the Commission will have to agree with this fundamental truth at some point soon. It will then be our intention to move forward with detailed arguments, which will lead to a revisiting of all the contracts introduced in Further Education Colleges since April 1993.

 

Ten Years of Injustice Must be Remedied

LEAF will continue to press the Commission to take appropriate action to make good the injustices that have been, and are being, endured by staff in the sector. For the sake of clarity, we emphasise that we are concerned about the pay and conditions of service of all Lecturers in the sector– – new contract, local new contract, Silver Book and agency staff. If you work as a Lecturer in Further Education, your situation is our concern.

The Commission has written to the United Kingdom because LEAF has deployed unassailable arguments that clearly show that a legal injustice has occurred. We anticipate major fireworks in the months and years ahead. If you want improvements in your pay, conditions of service, prospects and pension, then you need to know what we are doing, and you need also to join us.

 

Extraordinary Claims Require Extraordinary Proofs

And we have provided it! Our assertions are not based upon some loose view of Community Law and its relation to UK Law; they are well founded and fundamental in approach. In almost eight years of pressing our case, we have not yet met a Lecturer who does not agree with our views. As far as our opponents are concerned, they have failed completely to refute our arguments. We have rejected the Employment Tribunal decisions as wholly wrong and contrary to established principles of European Law, in particular in relation to the matter of the transfer of collective agreement rights. We believe that the next period will demonstrate that we were completely correct.

 

We’ll be Looking for Major Compensation for You.

When this long dispute is settled (which will only happen with our involvement), it will be necessary to re-establish collective agreements across the sector. We will be looking for major structural changes to the organisational arrangements for Further Education provision. And, we will be looking for compensation arrangements for Lecturers affected– which in reality will mean most Lecturers. It is very clear that, for example on the question of pay, no satisfactory long-term solution will be possible on the basis of the present system of 400 ‘independent’ colleges. LEAF’s approach is the only realistic one, from the standpoint of Lecturers’ rights. NATFHE has also now come down strongly against incorporation. We very much welcome this development.

 

What Happens Next

As soon as we are able to do so, we w