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Additional Fight: Confronting Employer Interference

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Agora #92

Confronting employer interference: trade unionists’ additional fight for democracy in the workplace

For 50 years, Union Syndicale has been fighting to give rights to the staff of the European and international institutions: either through the negotiation of memoranda of understanding, framework agreements or directly through the incorporation of provisions into the Staff Regulations of the European Public Service, such as the right to strike and the right of association.

As mentioned in Agora 91, which was devoted to the 50th anniversary of Union Syndicale Fédérale, it was in the early 1970s that Union Syndicale, alongside the FFPE, had the recognition of trade union activity incorporated into the Staff Regulations of civil servants and other employees. Nevertheless, Union Syndicale and its representatives have never ceased to have to deal with interference from administrations, to such an extent that, alongside defending staff, this has become the additional battle fought by trade unionists for democracy in the workplace.

USF engaged in fighting anti-union attacks

In May 2015, at its 14th Congress in Dubrovnik, Croatia, Union Syndicale Fédérale (USF) asked Congress members to adopt a resolution on access to justice for staff of European and international organisations. Congress noted that a common set of fundamental and social rights applicable within most international organisations is still lacking and that, as a result, staff members are deprived of systematic protection by fundamental rights as enshrined in the European Convention on Human Rights, the EU Charter of Fundamental Rights, ILO conventions, and labour and social law based on Articles 151 to 155 of the Treaty on the Functioning of the European Union (TFEU).

The resolution was adopted unanimously without any debate. It was adopted in a context in which USF’s Member Organisations (MOs) are confronted with administrations that mistreat trade unionists and staff representatives: by taking them to court directly, or even personally; by dismissing them; by attempting to modify framework agreements or codified protocols without prior consultation.

The preamble to the resolution does not go into detail about the elements that have been trampled underfoot or simply ignored by the administrations. However, there is a clear reference to the fundamental Charter of Human Rights and the ILO conventions that most countries worldwide have ratified. In particular, Convention 87 on Freedom of Association and Protection of the Right to Organise, which came into force in 1950 and has since been ratified by 158 countries, including all the countries belonging to the European Union.

The recurring anti-union attack that trade unionists in the European institutions have to face, and which directly affects the very organisation of the unions, is the ‘6-year rule’ (1), which seeks to limit the duration of the secondment (2) of a staff member of the EU trade union institutions to 6 consecutive years. In 2015, the General Secretariat of the Council (GSC) attempted to revise the framework agreement and include this limitation. The employer was unsuccessful, not least because the clause affected only one person: Union Syndicale’s delegate to the Council, and the provision could be seen as a discriminatory personal attack on a trade unionist. A few years later (May 2021), the European Commission decided, unilaterally and without consultation, to reinstate this rule, which had been suspended since 2011 (3). Despite the protests of the Chairman of the Central Staff Committee at the time (R&D) (4) , the Commission succeeded because the trade union landscape there was very different: there were a great number of unions (no fewer than 13 at the time) and so were the trade unionists who had been seconded for more than 6 years. Thus, in just a few months of implementation, Union Syndicale would lose the trade union time of experts elected by the staff (LSC and CSC), but also of experts leading the trade union organisation (President of the USF Federation, head of communications at the USB, etc.). These regulations, which clearly constitute anti-union interference, run counter to ILO Conventions 87 and 98 on the right of workers to organise, as well as to the Charter of Fundamental Rights and the case law that Union Syndicale has endeavoured to build up with the advice of highly reputed lawyers in the field, including Me Levi, Me Louis and Me de Montigny.

 

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(1) Or ‘10-year rule’ according to the institutions. It should be noted that the implementation of this rule has long been suspended by the European Commission

(2) For the sake of convenience, we use the term ‘secondment’ here, but this provision is also known as ‘dispensation from service activities’ or ‘exemption from service’. It involves a percentage of working time, granted by the employer, which the employee uses to carry out a mandate or trade union activity.

(3) Note of 19 May 2021 from the Directorate of DG Human Resources and Security addressed to the President of the Central Staff Committee and Presidents of the trade unions representing staff: With this note, I would like to inform you that the extension of the suspension to the duration of limit of six years of the statutory exemptions laid down in Article 4, paragraph 5 and subparagraph 5.1 of Commission Decision C(2011) 3588 of 27.05.2011 on the human and financial resources allocated to the Staff Committee of the European Commission, has not been further extended. Hence, the limit came into force on 16.05.2021.

(4) Note from the Chairman of the CSC to the Commissioner, (consulted in the archives of the US)

A world of work based on ILO conventions

The ILO’s Committee on Freedom of Association (CFA) has stressed that the right of organisations to elect their own representatives freely and without interference from the public authorities is an essential condition for them to be able to promote workers’ interests effectively.

The CFA identified the main forms of interference in the affairs of trade unions, namely interference in the elections of representatives of trade unions and professional organisations, interference in their registration and dissolution procedures, and interference in their financing and operating activities…

Article 3 of ILO Convention 87 establishes the right of trade unions to draw up their constitutions and administrative rules, to elect their representatives freely, to organise their management and activities and to formulate their action plans. Paragraph 2 prohibits the public authorities from intervening in any way that might limit this right or hinder its lawful exercise. (cf. paragraph 855, 859 and 466)

In its judgment no. 106 of 4 May 2012, the Administrative Tribunal of the International Labour Organization, (ILOAT) recalled that the principle of freedom of association (…) excludes any interference by an international organization in the affairs of its trade union or the organs of the latter. (NDR: on the principle of freedom of association, see also judgment 2100, in point 15). The Court recalled that trade unions must be free to conduct their own affairs and govern their own activities and the conduct of their members in relation to those affairs and activities, and that there can be no genuine trade union freedoms if statements made in the decision-making process of a trade union organisation can lead to disciplinary threats.

In its judgement no. 911 of 30 June 1998. the ILOAT recalled that the granting of facilities to a trade union organisation is not a privilege that can be withdrawn at the whim of the institution. When the latter provides facilities: ‘not out of pure courtesy, but because it is in its interest, well understood, that the functions which (the trade union) performs be fully and competently fulfilled. The court found that it is the interests of the institution that must govern the granting of facilities, which may only be withdrawn if the interests of the institution require their withdrawal.

The EU Charter of Fundamental Rights

Articles 20 and 21 of the Charter of Fundamental Rights of the European Union require that comparable situations must not be treated differently or that different situations must not be treated in the same way, unless such treatment is objectively justified. On the other hand, Article 52 of the Charter specifies that any limitation on the exercise of recognised rights and freedoms must be provided for by law and must respect the essential content of those rights and freedoms.

Limitations may only be imposed if they comply with the principle of proportionality and if they are necessary and genuinely meet objectives of general interest recognised by the EU or the need to protect the rights and freedoms of others.

Articles 27 and 28 of the Charter establish workers’ rights to information and consultation within the undertaking and the right to collective bargaining and action. In its judgment of 17 December 2015 in Seigneur v ECB (FP-95/14), the Civil Service Tribunal (CST) recalled (paragraph 59) that ‘the choice to be able to claim exemption from working time for the purposes of exercising a staff representation mandate is a fundamental right deriving from Articles 27 and 28 of the Charter’. In paragraph 61, it pointed out that ‘the exercise of this fundamental right cannot therefore be restricted by rules which place staff representatives in an unfavourable and discriminatory situation compared with other members of staff, where such restrictions are neither necessary nor meet an objective of general interest or the need to protect the rights and freedoms of others’.

The European Civil Service Staff Regulations: a way out of the grey areas?

Article 24 ter of the Staff Regulations recognises that officials have the right of association, in particular the right to be a member of a trade union or professional organisation of European officials and other servants. The last paragraph of Article 1 of Annex 2 to the Staff Regulations states that the duties carried out by members of the Staff Committee and by officials who sit on a statutory body, or a body set up by the institution as delegated by the Committee are considered to be part of the service which they are required to perform in their institution. This provision applies by analogy to duties carried out by a trade union mandate, more specifically by those seconded or made available to a trade union.

According to Article 3 of ILO Convention 87, the case law of the ILO Committee on Freedom of Association and the Charter of Fundamental Rights, a European Union institution may not interfere in the operation of a trade union organisation that it has recognised and, in particular, in the way in which it operates and appoints its representatives and, therefore, its seconded or seconded staff.

An institution may legally require trade union organisations to ensure that staff are as broadly representative as possible. On the other hand, it would be violating the fundamental right of trade union organisations to organise freely by imposing rules limiting the duration of secondment that would not be necessary and would not effectively meet general interest objectives recognised by the European Union.

Limiting the duration of secondments does not appear to be necessary or to meet an objective of general interest recognised by the EU. On the contrary, it infringes on the fundamental right to exercise a mandate to represent employees under Articles 27 and 28 of the Charter. In addition, this restriction is manifestly unlawful in that it excludes the most experienced and competent members of the trade union organisations from consultation and negotiation, thereby infringing the principle of equal treatment and non-discrimination.

It is the responsibility of the institutions to refrain from doing anything that might hinder the exercise of trade union freedom.

Finally, in its judgment of 18/01/1990, (Maurissen & Union Syndicale v. Court of Auditors, C-193/87 ), the Court of Justice expressly referred to the general principles of labour law in stating that trade union organisations must be able to play their proper role in representing staff in all matters affecting them. It concluded (point 12) that ‘it is for the institutions (…) to do nothing which might impede the exercise of the freedom of association recognised by the abovementioned provisions of Article 24 bis’.

Emmanuel Wietzel

About The Author

Teacher, trade union trainer at the French Confédération Générale du Travail and Euro. Trainer of the ToT network of the European Trade Union Institute (ETUI), former head of the Asia-Pacific sector of the UGICT-CGT international team, great supporter of public service and social dialogue, passionate about European construction and the history of the international trade union movement. Managing Director of Union Syndicale since 2017