Jim McAuslan, General Secretary of the British Airline Pilots' Association (BALPA) told the Trades Union Congress at Brighton today that BALPA is to lay a case against the British Government at the International Labour Organisation (ILO) because the Government has done nothing to clarify the law on strike action following a controversial decision by the European Court.
BALPA will be taking the case to the ILO for a breach by the UK Government of ILO convention 87. a case to the European Committee on Human Rights for a breach of Article 6 of the European Social Charter and a case to the High Commissioner for Human Rights for a breach of Article 8 of the International Covenant on Economic, Social and Cultural Rights.
This action follows on from BALPA's dispute with British Airways over BA's decision to start a new subsidiary, OpenSkies.
Jim McAuslan, who was seconding a motion at the TUC calling for a massive campaign to change the law said: 'British Airways wanted to set up a subsidiary in France without BALPA agreement. This was not about pay, it was about trying to keep the two pilot groups united to avoid a situation where the employer creates competition between one set of its employees and another.
'We exhausted negotiations, we exhausted internal dispute procedures, we exhausted the conciliation body ACAS, but no agreement could be reached.
'BA pilots then voted overwhelmingly for strike action. BA said that if a strike was called it would, using Article 43 of the Treaty of Rome, take legal action against BALPA and seek unlimited damages. BALPA went to the High Court to seek a view on the European legislation.
Jim McAuslan continued: 'Our experience in the High Court was not a happy one for while European law protects the right to strike if the strike conflicts with the economic freedom of employers under the Treaty of Rome its exercise requires justification and it can only be justified where there is a serious threat to jobs and conditions. Even then it is subjected to a criterion of proportionality and proportionality in UK law has a prerequisite that the judges avoid deciding the industrial merits.
'But two decisions in the European Court, in the cases of Viking and Lavell, change all that. English judges now have carte blanche to rule on the weight to be given to the interests of the parties.
'We had done everything properly and by the rule, and now we had new interpretations of the rule. We don't mind playing by the rules, but make them fair and be clear from the outset.
'BALPA believes that action at national and European level is needed to prevent employers exploiting the uncertainty of European law to undermine industrial relations and leave unions to try to guess what the rules are.
'BALPA may appear to have suffered a setback with our case against BA but that is to underestimate the resilience and perseverance of our members. For instance, we are announcing today an agreement with our sister organisation SEPLA, the pilots union in Spain. This will prevent either BA Iberia setting member against member if the merger between the two airlines proceeds.
'BALPA is also seeking support from international pilot organisations for our challenge to the new restrictive interprations being made by the courts and which are not being clarified by governments.'