Why do we need (strategic) litigation?
The EU's trade union movement still has various key demands that focus on improving the occupational safety and health (OSH) acquis at European Union and national levels, although the body of regulation on OSH developed by both EU institutions and Member States since the EU Framework Directive on Health and Safety at Work of 1989 does provide us with a framework of basic principles to properly organise the prevention of safety and health hazards.
However, these fundamental OSH preventive principles are not applied sufficiently and/or correctly and while strong enforcement bodies could help in this respect, Labour Inspectorates are not only increasingly understaffed but are also being asked to perform other, non-OSH-related duties, and as a result are unable to adequately enforce OSH legislation.
In this light, judicial enforcement is an avenue worth exploring, given that taking a matter to court is a way for trade unions to seek to ensure that OSH legislation is indeed enforced, and could thus become a powerful form of trade union action. If used in a strategic manner, it, besides bringing about enforcement itself, holds out the prospect of offering a clearer and more concrete understanding of the basic preventive principles of the existing OSH acquis at both EU and national levels, thereby providing a basis for its further development (i.e. the drafting of legislation).
ETUI's multi-annual project on litigation
This forms the backdrop for the multi-annual project on OSH litigation in the EU and its Member States that is being run by the Health and Safety and Working Conditions Unit of the European Trade Union Institute (ETUI). The project kicked off with a seminar, bringing together experts in this domain, on 15 and 16 January 2020. This event took stock of OSH litigation before the Court of Justice of the European Union (CJEU) and also identified potential for further action and looked into possibilities for (strategic) litigation at national level. Last but not least, participants discussed possibilities for mutual learning and inspiration for trade unionists, lawyers, academics, victim groups and other stakeholders from various Member States.
The findings of the project so far have been reported in a special issue devoted to OSH litigation, of our twice-yearly magazine HesaMag. The next step after that will be our annual OSH conference addressing this theme.
Details of the OSH Conference topics
Following the 2020 seminar's stocktaking (EU level) and factfinding (national level) missions, the 2021 Conference will have a more practical orientation, being focused on the usefulness of litigation in achieving unions' goals, and will cover both legal and strategic issues.
More specifically, the conference will have the following components:
1. The legal potential of cases – in particular, ways to deal with the issues of the 'causality link' and of the burden of proof (legal reasoning): Legal experts from various Member States as well as from EU level will shed light on this matter and will try to reach a common understanding in a round-table discussion. An important aspect here will be the issue of extending the scope of OSH legislation to 'new' situations, e.g. the COVID-19 crisis, teleworking, the gig economy, and cyberbullying.
2. The creative use of the EU OSH legal framework: Exemplary cases from various Member States will be presented, such as: the right to leave the workplace in case of serious and imminent danger in Belgium, the judicial review of the Occupational Health and Safety Legislation in the UK, and the request by SATSE (Sindicato de Engermería), a Spanish nursing union, before the CJUE for the annulment of Directive 2020/739 of 3 June 2020 which classifies SARS-CoV-2.
3. Litigation as not only 'lawyers' work': Litigation involves not only lawyers but also a number of other stakeholders. What is the role of workers and their representatives; OSH experts inside and outside the relevant company; and occupational physicians? How do Labour Inspectorates relate to the 'alternative' form of enforcement that litigation provides? A range of stakeholders will be interviewed on how they view their role as part of a bigger picture, as well as their assessment of any room for improvement.
4. Wrap-up session providing an outlook for future actions: What additional knowledge do we need, and how can we continue learning from one another? What role can be found for the European Trade Union Confederation (ETUC), and what can national trade unions do to make full use of this tool for action?
For more information, please contact healthandsafety@etui.org