- Update Wednesday
9 April 2003
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.
- Update Monday
24 February 2003
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.
- Update Wednesday
12 February 2003
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
- Update Thursday
9 January 2003
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
Ten
Years
of
Injustice
Must
be
Remedied
Extraordinary
Claims
Require
Extraordinary
Proofs
What
Happens
Next