The PM’s big speech left a big question mark over the UK’s future relationship with Europe. Lewis Silkin considers how it might affect employment law, specifically trade union laws and European works councils.
Cameron’s announcement last week on the UK’s future in Europe may have far-reaching consequences on many areas of employment law, but those employers with unions will feel less impact than they might otherwise have thought.
TULRCA
The key reason for this is that the majority of the legislation in this area was not borne out of EU regulation but domestic legislation. In fact, the key piece of legislation in this area (Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”)) came about mainly as a result of changes that occurred throughout the various Thatcher governments and endorsed by Tony Blair’s New Labour government.
It’s this piece of legislation that governs how unions should be set up, recognised and run as well as giving time off for trade union duties, providing protection to members and officers against detrimental treatment on union grounds and contains the detailed provisions on industrial action, so often criticised by the unions as too onerous. These are just a handful of the legal provisions contained in it!
It’s as a result of TULRCA being ‘home grown’ that the effect of any changes in the relationship between the UK and the rest of the EU will have limited impact on trade union laws.
Industrial action: what about the "right to strike"?
A key question for many, though, will be what about the so-called “right to strike”? Will Cameron’s approach impact on the unions’ case, presently before the European Court of Human Rights, that there is such a right and that the UK’s strike laws cut across this? Unfortunately for many employers, this challenge would not be directly affected by Cameron’s proposals as the European Convention on Human Rights is separate to the European Union.
Clearly, then, even a wholesale withdrawal from the EU will not greatly change the legal landscape in respect of trade unions. Employer organisations will still have the same rights and obligations as before; as will employees and their unions.
Works councils, TUPE and business sales
However, those employers with European or National Works Councils or regularly involved in business sales or outsourcing projects (where they amount to TUPE transfers) may find the opposite is true. In particular, the legislation in relation to such matters has derived from the EU and a break with the EU as a result of the proposed in/out referendum could potentially give free reign to the government to repeal the laws giving effect to those directives.
Exactly what the government could do would depend upon what life after a break with the EU would look like. In particular, if we opted to follow the Norwegian model (as some Eurosceptics praise), the UK could well still be bound by EU directives but have no say over what the directives say.
Conclusion
For the world of collective employment law, then, a change in the EU status quo could yield a mixed bag of results. Whilst pulling out of the EU could give more room for the government to repeal laws that are considered a hindrance to economic success, it’s unlikely that the government would want to be seen to trample over employee rights.
By Lisa Patmore, Lewis Silkin
What action do you think the Government should take when it comes to trade unions? Should union organisation be encouraged or restricted? Share your thoughts about trade unionism and collective employment law using the comments section below.
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