TUPE protection massively weakened

http://www.bailii.org/eu/cases/EUECJ/2013/C42611.html

This blog post comes with a warning (I believe these may now be called "trigger alerts" in informed circles). It concerns employment law and may provoke tedium. If you're a trade union activist you need to know this though.

The Transfer of Undertakings (Protection of Employment) Regulations, in their various guises, have implemented the different versions of the European Union's "Acquired Rights Directive". The extension of the Regulations (TUPE) to cover transfers from the public sector (in the 1990s) formed a vital part of the Blairite plan to outsource and privatise services, buying off trade union opposition with the promise that pay and conditions would be protected. Case law was vitally important to that extension of the understanding of TUPE.

In what might almost be a textbook example of the determination of the superstructure by the base, whereas when it might have been feared that our unions would block privatisation, case law ensured a generous interpretation of the regulations (from the point of view of workers' rights), now that there is less fear, the case of Packwood -v- Alemo Herron (the link above) has now bequeathed us a much more restrictive interpretation.

In a nutshell, this unanticipated decision, detrimental to workers' rights, lays to rest the previous "dynamic" interpretation of the meaning of TUPE for the impact on employment contracts of collective agreements in favour of a "static" interpretation. This means that if - for example - local government workers whose pay is determined by negotiations in the National Joint Council (NJC) are privatised, they can no longer expect (simply by operation of the law) that they will receive future NJC pay increases.

For those already transferred out of local government, and whose terms and conditions have been shaped by the previous (now incorrect) "dynamic" interpretation of TUPE, this legal decision creates a complexity which is probably best resolved (where possible) by collective bargaining and a retrospective agreement with the new employer that they will observe (at least) NJC pay increases. I won't go further into this question in this post because, like many other UNISON Branch Secretaries, I am awaiting guidance (which may well be to let sleeping dogs lie).

For future transfers however, Parkwood -v- Alemo-Herron raises (at least) two vital questions. First, if the law won't give us a "dynamic" interpretation of the impact of collective agreements upon contracts of employment, we need to decide whether or not to bargain for one through a "TUPE plus" Agreement. 

Secondly, this decision makes it much easier to formulate a trade dispute around a transfer, since it is now at least arguable that a transfer involves a materially detrimental change so that, under Regulation 4(9) of the 2006 Regulations, employees facing transfer could treat themselves as having been dismissed.

Trade unions have been perfectly entitled to wage campaigns against privatisation, including campaigns in which industrial action in pursuit of a legitimate trade dispute plays a part, ever since we won that point (yes, won) in the case of UCLH -v- UNISON many years ago.

This legal decision (Parkwood -v- Alemo-Herron) is a defeat and a setback. It undermines workers' rights and worsens the prospective experience of those who are privatised and outsourced.

It does, however, serve as a timely reminder that such legal decisions reflect, albeit in a complicated and mediated way, the state of play in the class struggle. 

Our acquiescence in privatisation and outsourcing has laid the foundations for the law to move (as it now has) against our members' interests. 

I've been wondering when would be a good time to step up our opposition to privatisation and outsourcing. 

It occurs to me that it's quite clear when that time would be.

Now. 2014.