New Spanish President To Repeal Anti Union Picketing Laws

Spanish President & Socialist Party (PSOE) leader Pedro Sanchez

From John Hendy QC

Published below is Communiqué of the International Commission in Defense of the 300 prosecuted in Defense of the 300 workers prosecuted for going on strike in Spain, and for the repeal of Article 315.3 of the Spanish Penal Code, afterPedro Sånchez, President of the Spanish Government, announced to the Congress of Deputies the repeal of the art. 315.3.

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Tribunal finds that Ritzy union reps were unfairly dismissed

Living Wage campaigners at the Ritzy Cinema celebrate the tribunals’ finding that Picturehouse acted unlawfully when the company dismissed union reps in June 2017. Photo: Agata Wanda

The Employment Tribunals have ruled that union representatives at Picturehouse’s Ritzy cinema were unfairly dismissed in June 2017.

The unanimous finding of unfair dismissal, which applies to two of the three applicants, vindicates the decision to bring the complaints which are set within the context of the long-running industrial dispute over Picturehouse’s failure to pay the Living Wage.

The cases were heard at the Employment Tribunals in Croydon, South London, in March this year.

Two of the applicants had sufficient length of service to bring a claim of unfair dismissal; the third representative was employed for less than two years and was therefore unable to bring this claim.

 Victimisation for trade union activities

On a majority decision, the tribunal ruled against the three representatives’ claim that their dismissals were automatically unfair due to the employer’s victimisation of them for their trade union activities. One member of the tribunal panel disagreed with that finding.

A third complaint of detriment due to suspension was unanimously dismissed by the tribunal panel.

Commenting on the rulings, which were released to the parties in June, Gerry Morrissey, head of BECTU, said:

“We’re obviously satisfied that the tribunals have found that our members were right to bring the complaint of unfair dismissal. The judgment is clear that Picturehouse management showed a lack of neutrality and assumed the guilt of our representatives.

“We are very disappointed, however, by the tribunals finding that our representatives’ trade union activity was not central to Picturehouse’s decision to dismiss. We find this hard to accept given the leading role which Ritzy representatives have played in our long-running dispute with the company. We believe that the company took advantage of the circumstances to dismiss BECTU activists.”

The issues which gave rise to the dismissals last year concern an email sent in April 2017 to all BECTU members at the Ritzy summing up discussions at an earlier union meeting; the email included the statement “we are also going to start pushing cyber-pickets”.

Cyber-picketing is potentially unlawful activity and when union officials became aware of the email, all members were officially advised of the serious nature of such activity should it be undertaken.

The charge pursued by the employer through the disciplinary procedure was that representatives had failed to alert management to the contents of the email and to take any steps to prevent such activity and that in addition they had not been open or transparent up to the point of dishonesty during the investigation. Six Ritzy representatives were investigated in a process which led to three dismissals in June 2017. A fourth representative was dismissed later and a further tribunal hearing is pending.

 ‘Lack of neutrality’

Explaining the unanimous decision to find for two claimants in respect of unfair dismissal, the tribunal’s judgment reads:

“In substance, however, the notes of the meetings show a lack of neutrality at the investigation and disciplinary stages. There was an assumption of guilt on the part of the claimants and, expressly during the disciplinary meeting, Mr O’Connor [Picturehouse Regional Manager] stated that the onus was on them to prove in effect their innocence.”

 ‘Failure at all stages of the process .. to properly engage with the claimants defence’

Further on the judgement reads: “ There was a failure, however, at all stages of the process for the respondent to properly engage with the nature of the claimants defence.”

“Further, we conclude that the penalties applied to both claimants were outside the band of reasonable responses”.

The tribunal panel concludes “Accordingly, in a number of respects the dismissals were unfair.”

 ‘All members of the tribunal agree that the background union activities of the claimants played a part in the decision-making of the respondent.’

In a key part of the judgment referring to the complaint of victimisation for trade union activity the tribunal members write:

“All members of the tribunal agree that the background union activities of the claimants played a part in the decision-making of the respondent. The majority accepts however on the balance of probabilities that the principal reason the claimants were dismissed was what Mr O’Connor and Mr Jones [Vice-President of Operations, UK & Ireland, Cineworld Cinemas Ltd] regarded as their misconduct rather than their union activities, the reason advanced by the respondent.”

Commenting on the decision, Vicky Phillips, head of employment rights at Thompsons’ Solicitors, said: “We are delighted to have assisted BECTU to secure victory for two of their members dismissed by Picturehouse. The case stands as a warning for employers who close their minds to what employees say in their own defence. We are pleased that a minority of the panel thought that trade union reasons were the reason for dismissal. This case once again shows how difficult it is for such claims to succeed.”

A leading representative from the Picturehouse workers said: “If anyone should be fired for dishonesty it is Picturehouse and Cineworld bosses. It’s now proven by the tribunal that they were biased from the beginning. Also since the sackings last year many striking sites have been chronically understaffed which puts huge strain on remaining staff members.”

A date for a further hearing to determine the compensation due to the two BECTU representatives has yet to be agreed.

The dispute with Picturehouse, which runs 23 venues across the UK and is owned by cinema giant Cineworld, continues. Support for workers at the Ritzy and at Picturehouses in Crouch End, Central London, East Dulwich and Hackney continues to grow.


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Mexico: The Labor Challenges

Arturro Alcalde Justiniani, La Jornada, July 7th 2018

The new composition of the Congress of the Union creates and  opportunity to have better laws in all areas and issues of the pending agenda. One of them, which is fundamental for the country, is the labor reform.

Recall that in February 2017 a profound constitutional reform was carried out in this area. Considering its explanatory statement, it was considered the most important in the last 100 years, because it implies a radical change in the justice system.

For example, it requires the abolition of the Conciliation and Arbitration Boards, assigning their functions to the federal and local judicial powers; creates new institutions to promote conciliation; establishes a set of democratic rules is established, especially aimed at rescuing collective bargaining from the current practices of simulation and corruption to turn it into a space for social and productive agreement, as in the most developed countries of the world. The authentic representation of the workers in these processes will be able to overcome the current policy of wage containment and this would generate a very positive effect in the change of economic model that the population demands.

In order to comply with the constitutional mandate and achieve a successful labor reform, two conditions must be met: first, to achieve legislative agreement on changes in the labor procedure and the role of new judges, creating rules that can be met promptly in both individual and collective cases for the benefit and legal certainty of employers and workers; second,  to efect an adequate transition from the Conciliation and Arbitration Boards to the new labor courts. Little has been said about this transition, but it has great practical and budgetary importance. The starting point is to recognize that this labor reform is a fundamental line of social policy that the new government must promote.

According to the constitutional reform, the implementing laws should have been passed within one year. It was also mandated that the cases, files and documents (about about 1 million nationwide) be transferred to the new labor courts. None of this has been done within the prescribed period.

This transition has faced the fact that the judicial powers lack the conditions to receive so many cases and, on the other hand, within the Conciliation and Arbitration Boards themselves a dangerous process has been generated that prevents overcoming this long-standing problem, which governments have seized on to reverse course and even go so far as to block the implementation  of  the reforms.

Entering into the details of the transition, one encounters a set of difficulties that must be overcome. With regard to the Federal Conciliation and Arbitration Board, the outlook is frankly bleak, a product partly of the budgetary neglect which increased in the last three governments. The policies of the governments and their finance ministries have focused on reducing jobs and practically stifling the delivery of labor justice. These restrictions increase bottlenecks to increase extend the time required to conclude cases.  The piles of files grow day by day, the procedures routinely last up to five years, with another five years to give legal effect to the decision, not counting the time to execute the judgement.

For 17 years, a criminal freeze has been maintained by the fiscal authorities. In some Boards  30,000 cases are assigned to a single actuary who earns around 8 thousand pesos per month. We are speaking of a key official in the procedure, who has been deprived of the basic support to carry out his or her work. The government’s abandonment of the labor tribunals is part of a policy of segregation, as opposed to the priority given to other branches of law.

This precarious situation is not limited to the Federal Conciliation and Arbitration Board:  the difficulties are aggravated by the policy of the public employment entities, among them, the Mexican Institute of Social Security, which generates most of the cases and hinders their resolution. In social security cases, which reach a quarter of a million, there is also a great lentitude, which causes incalculable damage to the beneficiaries and the labor authority itself. In the bureaucratic environment there is the same policy of closing one’s eyes to reality and letting the damage accumulate – suffice to say that some districts of  Mexico City have labor debts in the Federal Conciliation and Arbitration Tribunal greater than their entire annual budget. And meanwhile, back wages accumulate and justice does not arrive.

Beyond the mandatory legal reforms, it is urgent that we turn our eyes to the drama that labor justice is experiencing in our country today.

Thanks to Ben Davis of the Unirted Steelworkers.

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Legal Attack On Belgium Union ABVV

Rally in support of Belgium Union Officials of ABVV

From IndustriALL Europe

A recent ruling by a court in Antwerp, Belgium against regional leaders of the Belgian Trade Union FGTB/ABVV is now part of a wider tendency to criminalise trade union action. This is a worrying trend that threatens the protection of workers’ rights and the important and necessary work done by trade unions.

The court decision in Belgium follows numerous other cases in other European countries, such as in Greece (Skaramanga Shipyard), Spain (Airbus Getafe) and in France where trade unions shop stewards and leaders were brought to court to face legal action.

Legal intervention against trade unions has become more frequent in recent years.

This is detrimental to the work of trade unions in advocating for, protecting and upholding fair working conditions and ensuring access to information and consultation as well as many other workers’ rights. It is unacceptable that employers and governments try to limit trade union actions by involving the courts and thus criminalising trade union action and demonstrations, which are directly linked to the fundamental right to strike.

The correctional court in Antwerp recently declared the chairman of ABVV-Antwerp, guilty of “malicious obstruction of traffic”, in response to a national trade union action that took place on 24th June 2016 near the port of Antwerp.

The court’s motivation was scant, with the denial of European and international treaties on labour law in this respect. For trade unions across Europe, this is an outright blow because it makes future actions as good as impossible, now that any action risks criminal conviction.

In their press release, FGTB/ABVV said; “We cannot accept that the only weapon we have at our disposal (the right to strike and raise strike pickets) is also being taken away from us and that courageous fighters like our deputies are being criminalised. 
 This is going too far!”

IndustriAll Europe stands with its affiliate in response to this verdict.

Luc Triangle, General Secretary of industriAll Europe said; “IndustriAll Europe condemns this continuous attack on trade union rights. The condemnation of a Belgian trade union leader is unacceptable and an attack on the right to strike. This is a case that concerns all European workers. We will jointly fight back to ensure workers rights are upheld across Europe.”

Thanks to Luc Triangle, General Secretary of IndustriALL Europe.


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Aussie Unions Campaign For A Living Wage

CTUF’s Australian Correspondent Barry Camfield sent us this from Australian Congress of Trade Union’s Secretary Sally McManus.

“I’m just back from the Fair Work Commission, where they decide whether 2.3 million Australians will get a pay rise, and if so, how much.

On 1st July 2018 the minimum wage will increase by 3.5 per cent (or $24.30 per week) to $719.20 for full-time work. The new hourly rate will be $18.93. All award wages will also increase by 3.5 per cent.

This is the biggest percentage increase the Fair Work Commission has awarded and it has only happened because union members fought hard for it.

It means 2.3 million workers will get a pay rise next month.

But working people need more – we need a living wage.

The minimum wage should be pegged at 60% of the median wage. This is the international poverty line benchmark. Even with today’s increase we are still below that mark.

Working full-time should be enough keep you out of poverty. We need a living wage in Australia to make sure that’s what happens.

It is union members who fight for and win wage rises. We are changing the rules in Australia so that all working people can have better pay.

Join the movement for change and help make our movement stronger.

Share this with your networks and help spread the word that it is union members who won today’s minimum wage rise and we’ll keep fighting to win more.”

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UK Government Forced To Revise Union Membership Figures After 20 Years Of Miscalculation

The UK Government Forced To Revise National Statistics On Trade Union Membership In Response to Wales Institute of Social & Economic Research, Data & Methods Research.

Rhys Davies reveals how official figures have under-estimated the presence of trade unions within UK workplaces over many years.

This morning, May 31st the Department for Business, Energy and Industrial Strategy (BEIS) published its latest estimates for trade union membership in the UK based upon data from the Labour Force Survey.

Today’s figures reveal that 6.2 million employees were members of trade unions during 2017. Whilst overall levels of membership within the UK have increased slightly since 2016, they remain well below the peak of 13.2 million that was observed in 1979.

The headline figure for trade union membership is ‘union density’ which measures the proportion of employees in employment who are union members.

Today’s results reveal that just 23% of employees in the UK were members of trade unions during 2017. Twenty years ago, union density was over 30%.

The influence of trade unions at the workplace however extends beyond those who are members.

Official statistics produced by BEIS therefore also estimate the proportion of employees who are employed at workplaces where trade unions are present, referred to as union presence.

These figures are also derived from interview data collected by the Labour Force Survey.  Between 1996 and 2016, official estimates of trade union presence also declined from 50% to 41%.

Research undertaken by Rhys Davies at WISERD has revealed that official statistics of trade union presence have been incorrectly estimated over the last 20 years.

Government statisticians have mistakenly treated those who did not respond to the question on trade union presence as if they had said that nobody at their place of work were union members.

Normal practice would be to exclude such people from the calculations.

In light of these findings, statisticians at BEIS have revised their methodology for estimating trade union presence.

Today’s publication reveals that 49% of employees are employed at workplaces where trade unions are present.

The effect of the change has been to increase the rate of union presence by 8 percentage points, roughly equivalent to 2 million employees.

Rhys Davies comments: “Declining levels of trade union membership is often cited as evidence that trade unions have become less relevant within the modern UK economy.  Whilst the downward trend in union membership is not open to debate, today there are many more workers employed at workplaces where trade unions are present than was previously thought. By implication this suggests that the workplace influence of trade unions in the UK has been significantly underestimated for many years.” 

 For more information about this research, please see the WISERD Blog Measuring Trade Union Membership: Harder than it may seem? More detailed analysis is available from the Research Note Making Sense of Official Estimates of Trade Union Membership. 

Rhys Davies is a Research Fellow at WISERD and Associate Director of the Wales Administrative Data Research Centre, based at Cardiff University. Well done Rhys – a fine piece of research!


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Posting Of Workers: EU Takes Final Vote On Equal Pay and Working Conditions

By Tony Burke, Chair of the Campaign For Trade Union Freedom

The controversial ‘Posted Workers Directive’ which was used by employers and contractors to undermine national pay agreements and exploit workers has been amended by the European Parliament.

In a recent blog for CTUF, MEP Jude Kirton Darling outlined the changes that were being discussed. A vote on May 29th has now made the changes that were discussed and agreed in the European Parliament. The revised rules revised rules voted by Parliament on May 29th. They were approved by 456 votes to 147, with 49 abstentions.

Under the current arrangements employers are not obliged to pay posted workers more than the minimum wage set by the host country, they usually earn less than local workers for the same job.

According to the Commission, posted workers can earn up to 50% less in some cases.

Loopholes in the current legislation have led as well to an increase of fraudulent practices such as companies existng on paper only or fake sub-contracting, that involve the exploitation of posted workers. In the UK it lead to walkouts and disputes with employers using the directive to import workers and exploit them as cheap labour and paying less than nationally or locally agreed rates of pay provided for under collective agreement.

The definition (according to the EU) of a ‘posted worker’ is an employee who is sent by his or her employer to perform a service in another EU member state on a temporary basis. In 2016, there were 2.3 million posted workers in the EU. Posting increased by 69% between 2010 and 2016.

Most posted workers (82.3%) get sent to EU countries in Western Europe, with Germany, France and Belgium receiving about 50% of all posted workers.

The countries that send out the most posted workers are Poland, Germany and Slovenia. Workers are usually posted in neighbouring countries.

Workers ‘posted’ to work on other EU countries will now get equal pay for equal work and will be better protected against exploitation and fraud.

In a revision of the Directive a host country’s remuneration rules to apply to all posted workers; a posting can last up to 12 months, with a possible extension of 6 months and the EU says posted workers “will now be better protected against fraud and exploitation”.

Under the proposed new rules posted workers are subject to the rules on remuneration in the country they have been set to. This could either be set by law or by certain collective agreements. Employers would have to pay for travel, food and acommodation instead of deducting these costs from workers’ salaries.

The maximum posting period would be capped at 12 months, with a possible extension of six months. After that working conditions will be subject to the labour rules of the country they are working in. Co-operation between EU countries to tackle fraud would also be boosted.

In addition temporary work agencies would have to guarantee posted workers the same conditions that apply to other temporary workers hired in the country they have been sent to.

Ensuring fair pay: Under the agreed text, all of the host country’s remuneration rules must apply to posted workers. In addition to legal provisions, member states may apply large, representative regional or sectoral collective agreements. So far, this has been done only in the construction sector.

Improving workers’ conditions: Travel, board and accommodation costs will have to be paid by the employer and not deducted from workers’ salaries. Employers will also have to ensure that the accommodation conditions for posted workers are decent, and in line with national rules.

Protection against fraud: In the event of a fraudulent posting, e.g. by a letterbox company, member states should cooperate to ensure that posted workers are protected, at least, by the conditions of the Posting of Workers Directive.

 International road transport: The new elements of the revised directive will apply to the transport sector once the sector-specific legislation, included in the Mobility Package, enters into force.

Until then, the 1996 version of the directive remains applicable.

New rules to apply within two years: Member states will have two years to transpose the rules into their national laws, and must put them into effect by the end of this period.

Also read: The EU has just passed a law that could end the problems with free movement which led to Brexit in the first place


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CTUF – IER at the Tolpuddle Festival

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CTUF – IER at the Durham Miners Gala

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Home Office rules mean immigrants can’t go on strike without risking deportation. Post-Brexit – this will include EU workers

Sally Hun

By Sally Hunt and John McDonnell

Migrant workers contribute to our economy and should be able to join their colleagues in defending their employment rights.

The recent wave of pension strikes at UK universities was the biggest action the sector has ever seen. The unwavering commitment of staff over the fourteen strike days – along with the overwhelming support from students – was instrumental in wresting a much-improved offer from the university employers.

The strikes’ success depended on the backing of thousands of international staff who play a vital role in our increasingly global higher education sector. Yet for those on Tier 2 “skilled worker” visas, taking part meant more than simply giving up pay or braving freezing temperatures on picket lines – it meant risking their immigration status.

John McDonnell

That’s because staff on those visas are subject to strict limits on unpaid leave. If a migrant worker exceeds 20 days’ unpaid absence in a calendar year, their employer is obliged to report them to the Home Office and withdraw visa sponsorship. The Home Office Immigration Rules also say that exceeding this limit could be grounds for revoking a migrant’s leave to remain in the UK. There are some exceptions for those on parental leave or long-term sick leave – but industrial action isn’t covered in the list of exemptions.

The government has so far failed to provide clarity on the issue. When asked if strike absences would count towards the limit, the immigration minister simply said that decisions about whether to revoke a migrant’s leave would be made with “full regard to the circumstances”.

This ambiguous position is problematic on a number of levels. First, because being able to strike is a fundamental right. It’s enshrined in article 28 of the Charter of Fundamental Rights of the European Union. It shouldn’t be left to the discretion of Home Office officials whether engaging in strikes will lead to deportation.

Second, at a time of daily headlines about the government’s abysmal treatment of Windrush migrants and the impact of the Tories’ toxic hostile environment immigration policy, the minister’s vague response is hardly reassuring. The stories of those failed by the immigration system only reinforce the need for absolute clarity on migrant rights.

Third, the issue may also be about to get much bigger. Brexit is looming and the 2.4 million EU citizens who work in the UK could shortly become subject to the UK’s visa system. If the immigration rules are allowed to restrict their engagement in lawful strike action, our industrial relations will suffer as a result.

All staff should be able to play a full part in legitimate strike action without fear of reprisal, regardless of where they are from. Migrant workers contribute to our economy and should be able to join their colleagues in defending their employment rights. Strike action is never taken lightly. But this restrictive rule means that migrants who need to take unpaid leave for other reasons – perhaps to look after a sick relative – find themselves unable to participate for fear of breaching the limit.

International staff need an unequivocal, written guarantee from the government that days spent taking legitimate strike action will not put their immigration status at risk. A small clarification from government would make a big difference to the lives of those affected.

Sally Hunt is the general secretary of the University of College Union (UCU) and President of the TUC. John McDonnell is the shadow chancellor of the exchequer.

First published in The Independent, May 11th.

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