Completely out of touch

OPINION □ THE BRITISHGOVERNMENT ANDTHE ILO Completely out of touch The ILOviews thisas 'a situation wherethe rights underthe Convention cannot be exercised' DANIEL BLACKBURN is Director of ICTUR in London. He isabarrister by training and advises unions on international human rights At raging, concessions British with Airways, the from employer a an high already profile demanding conciliatory dispute huge is raging, with theemployer demanding huge concessionsfroman alreadyconciliatory union.Cabincrewworkers areseekingto avoid widespread job losses and corresponding increasesin pressureat work.The union has offered concessions, buttheemployer is playing hardball. Bothsidesaredigging in,theemployer attacking theunion,and theunionnow making preparations fora seriesof shortstrikes to be turnedintoa sustaineddispute.A mediacircus hasspawned,andtheGovernment isunderpressurefrom journalists hungry for'decisive'action. So far,Ministers have refrained from pilingtoo deeplyintothefray, preferring toissuenon-committal platitudes urging thetwosidestoreturn to thenegotiating table.Buttheirsilencemasksa deeper problemthan any intervention would reveal,andthisis theextent towhichtheBritish Government(a Labour Government...!)has maintained a viciousanti-union legalframework thattiesworkers in knots, and whichmakesthe organisation oflegalindustrial actionintoa technical and proceduralminefield. Even lawyers advising theunionsinthesecases findthecomplexitiestaxing .After more than a decade in powertheGovernment has shownno interest in reforming theworstaspectsofthelaw. The JointCommittee Itwas refreshing, then, attheend oflastyear, to hearatleasta smallvoiceintheBritish Parliament adoptinga less hostilepositionwhen theJoint Committee on HumanRights presented itsreport intothehumanrights obligations ofBritish businesses .Sucha report was nevergoingto change much,but as thesethings go, the Committee's report hadbeenfairly robust. Included amongthe Committee's recommendations andconcerns, and prompted by thesubmissions of theInstitute of Employment Rights(1ER),were severalpoints concerning trade union rights. But sadly,the Government's response was a shocking mixture of pompand sleight ofhand,at first blustering that 'theUK'sstanding attheILO is high', andthenin respect ofcollective labourrights, weaklyadding that 'theUKhasnotbeenformally censured bythe ILOGoverning Bodyfor failure tocomply with the ILO Conventions', as ifthiswerein somewaya replyto the detailedproblemsthathad been raised. WhiletheGovernment's reply might havebeen technically correct, itwas extremely misleading, to saytheleast.Itis truethattheUK has notbeen dragged before theILO Governing Bodynorhas it been subjectedto a Commission of Inquiry alongside theworld's worst humanrights abusers. Butthis hardly seemsas ifitshouldbe a boast,as though itwerea grand accomplishment. Nordoes itfairly oraccurately reflect thereality ofthesituation .Infact, theUKhasbeensubject tofrequent criticism bytheILO,notably bytheCommittee of Experts, thebodycharged withoverseeing compliancewithConventions byratifying States. This is notan obscuresub-Committee, butrather the mainmonitoring bodythatoverseascompliance withILO Conventions. Itis thecentrepiece ofthe ILO's monitoring and reporting system. Anditso happensthattheUK has been criticised by this body,yearon year, fordecades,andfora variety offailures tocomply with Convention 87,which is one of the most fundamentalof all ILO Conventions. Indeed,thisyear,justbeforethe Government issued the lazy and misleading remarks above,theCommittee ofExperts ramped up itscriticism, arguing thatitsaw in contemporary UK law something particularly serious.The Committee berated'a situation wheretherights undertheConvention cannot be exercised'. Woes fromEurope:the BALPA case Inreaching itsdramatic conclusions, theILOhada specific case inmind, a case involving some3000 pilots from theBALPA unionwhofellintodispute withtheir employer overthecreation of a subsidiary airline. Asinthepresent case,theemployeratthecentre ofthedispute was British Airways. The new airline wouldbe based in France, and there seemstohavebeencommon understanding that 'labour costs', atleastinitially, wouldbe lower thanthose in BA's British base. In seekingto ensurethat thenewcompany didnottoogreatly undercut their own position, thepilotssought an array ofassurances from thecompany, including the updatingof theirlong-standing collective agreement. BA did not agree,and rejected the requests. Whenbargaining options wereexhausted andwiththesubstance oftheir concern notmet, BALPA members votedoverwhelmingly tosupport strike action.BA immediately informed theunion that, ifaction weretaken, theemployer wouldseek an injunction toprevent ittaking place. BA'sargument was based noton conventional principles oftort and contract whichhaveunderlainBritish employment law forgenerations, but aroundwhatcan onlybe described as a 'novel' interpretation of EU law, based on two monumentalrulings issuedin 2007 by the European CourtofJustice (ECJ)in thecases ofViking and Laval(see IUR15.1,p22 andIUR13.4generally). Thesecasesrocked established traditions oflabour lawthroughout theEU.Strikes that wouldbe lawful in an entirely nationalcontextsuddenly becameopen to legal attack whencross-border European investments oraspectsofbusiness relocationwere introduced. Although manylabour lawyers with a human rightsbackground remained unconvinced of the compatibility betweentheseessentially commercial law decisionsand thewiderframeworks of international human rights, law - and it was questionable whether theywould even applyin thepresent case - the situation had createdenoughlegal uncertainty tomakeBA'sposition atleastcredible. Thenthecompany uppedthestakes witha claim that damages wouldbe up toonehundred million poundsperday.Thismadetheclaimtruly devastating . Such inflated damagesclaimshave ordinarily longbeenblockedinEnglish lawbytwodistinct INTERNATIONAL union rights Page 22Volume 17Issue 1201 0 legal regimes;firstly, the statutory 'immunities', whichshelter British unionsfrom tort...

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