Legal assistance is a valuable membership benefit
25.04.2023
PAU members have access to comprehensive legal assistance. The most typical cases ending up in court involve the termination of employment, outstanding wages and disputes concerning the interpretation of collective labour agreements. Veera Kekäle, the Union’s lawyer, will answer questions about legal assistance.
What should members do if issues arise in the employment relationship?
We recommend raising the matter as soon as possible. In addition, it is important to keep all the material, including the employment contract and wage slips, relating to the issue.
As a rule, it’s advisable to begin by first discussing the matter with your own supervisor. Issues can often be settled at the workplace. If no progress is made or you need support, contact your local shop steward or chief shop steward. And if the issue involves work ability or occupational health and safety, it’s advisable to contact the occupational health and safety representative.
Disputes arising because of the application of the collective labour agreement are dealt with in accordance with the negotiation protocol, in other words efforts are first made to resolve them locally between the supervisor and local shop steward. If the matter cannot be resolved locally, it can be submitted to the regional chief shop steward for negotiation and from there even to the desk of the national chief shop steward. If no settlement of the matter is reached at the national level, it will ultimately be submitted to the unions (Finnish Post and Logistics Union PAU and the Service Sector Employers Palta) for resolution. On the other hand, a matter involves the termination of employment but not the collective labour agreement, there is no need to follow the negotiation protocol and the matter can be submitted straight to the Union office to be dealt with.
The Union office exists for members and the threshold to contact us is low. And we also have members who do not have a representative at the workplace – employment agency firms, for example, do not always have a ship steward and the Union office is then the right address.
Why is it advisable to try to settle out of court?
When cases reach my desk, they don’t always lead to court proceedings. Cases can also be settled with the employer. This is one important part of my job.
The basic starting point in disputes is to reach a negotiated settlement. Legal processes can take years without any certainty of the final outcome. In a court, one of the parties usually wins and the other loses, but negotiation can reach an outcome where everyone wins something. Agreement can also result in various resolutions, whereas in a court of law it’s only about money. For example, where an employer has unlawfully terminated an employment relationship, a court can never order the employer to take the employee back. But negotiation allows agreement on this, too. This is one of the potential benefits of agreement.
Where agreement is reached, I discuss the content of any potential settlement with the member and remind them of two things – firstly, the length of the legal process and secondly that winning is not guaranteed in legal proceedings and there is always a risk of losing the case in court. It’s important to discuss these things honestly so that the member can decide whether to accept the settlement offer or whether to seek legal assistance from the Union. I often also come across situations where settlement is not possible or the settlement offered by the employer is so meagre that I can’t recommend accepting it.
What do I do if I want legal assistance from the union?
Where a matter cannot be resolved through negotiation, consideration should be given to pursuing it in a court of law. Every member has the right to seek legal assistance from the Union. In practice, legal assistance for the court means that the Union brings the case against the employer in the court and pays the legal costs.
Under Union rules, to be eligible for legal assistance, you must basically have been a Union member for six months before the labour dispute occurs and have met all your member obligations. The Union board may for special reasons deviate from this main rule.
You can seek legal assistance through your own local union branch or alternatively the Union board can take up the matter for consideration also based on the opinion of the Union officer dealing with the matter.
You can seek legal assistance before court proceedings begin. If court proceedings have begun before a decision has been made to cover the matter under the Union’s legal assistance, assistance will be granted only in exceptional cases.
What factors affect whether or not legal assistance is granted?
The Union board decides each request for legal assistance on a case by case basis. Whether or not legal assistance is granted depends on the facts of the case, i.e. what has happened and what kind of evidence there is, and of course the jurisprudence of the case or how the facts in the case fit into legal provisions and the entries in the collective labour agreement.
We regularly come across incidents where a member feels he or she has been treated unfairly at the workplace, but not every case contains a legal aspect that would ensure the legal success of the case in a court of law. Regrettably, not all unfairness is unlawful.
What does legal assistance cover?
The Union’s legal advice and legal assistance for a court applies to incidences involving employment relationships. If a member is granted legal assistance, the Union will pay all legal costs. An exception to this is the member’s own personal costs such as those arising from travelling to the court hearing.
Some unions impose an own-contribution element or a compensation cap, which means that you need to meet any costs exceeding these out of your own pocket. In this sense, PAU’s legal assistance is considerably better as we have neither own contributions nor compensation caps. If the case is lost and the court orders the member to also pay the opposing party’s legal costs, the Union also pays these costs in full.
If legal assistance is granted, the case will be pursued either by PAU’s lawyer or by an outside lawyer specialising in labour law that PAU engages.
What are the most common cases taken to court?
The most typical recent examples are cases where the employer has terminated the employee’s employment unlawfully. Other common themes include wage claims and disputes involving interpretation of the collective labour agreement.
What factors affect whether the plaintiff is successful in court?
As I mentioned above, the main things are of course the jurisprudence aspect and the proof available of the matter, in other words written evidence or witness statements.
What have been the most significant legal wins in recent times?
Examples I could cite include cases concerning outstanding wages owed to deliverers of unaddressed advertising material and the decision of the Supreme Court in the Tampere break case, which involved established terms in the employment contract. The precedent of the Supreme Court in the break case clarifies the legal situation and may have legal implications for subsequent court decisions. The win in the dispute concerning the general binding nature of the collective labour agreement for the communications and logistics sector was also a significant matter for the sector.
What are the most significant court cases pending?
A case dating back to 2015 is under consideration in the European Court of Human Rights (ECHR). The case concerns an incident where the employer removed employees from the workplace and withheld their pay when they complied with an orientation ban decided by the trade union. The case was won in the district and appellate courts but the Supreme Court voted to overturn the decisions of the lower instances. We consider the judgment to conflict with the freedom to organise guaranteed by ILO conventions and thus also with the European Convention on Human Rights. This is an important case. It is rare for a Finnish labour right case to be brought before ECHR.
Another case that needs mentioning is the ongoing legal process against SOL Logistiikkapalvelut. SOL uses another weaker collective agreement, which has not been concluded for temporary agency work, in the employment relationships of agency employees it hires to Posti. We consider that this violates both the law and the Temporary Agency Work Directive and that PAU’s collective labour agreement must be complied with. The case in question is currently in the appellate court.
Why do legal processes take so long, sometimes years?
The courts are under-resourced and there are many cases. A case backlog also built up during the corona pandemic. Finland has received judgments from the ECHR for court proceedings that have dragged on too long.
What do legal costs consist of and how expensive is it to pursue cases alone?
There is no limit to the sums involved. Attorneys’ fees account for the biggest costs in court cases and vary depending on the amount of work involved and the nature of the case, although hourly invoicing is generally used, typically around EUR 200/hour. There may be huge differences in fees. EUR 10,000 can be considered a rule of thumb for each court instance and in the worst case scenario, the opposing party’s costs come on top of this. So if you lose the case, you’re looking at about EUR 20,000. The amounts are similar in the other instances, the appellate court and Supreme Court, if the case goes that far. On the other hand, there is huge variation and no limit to the sums involved.
Employees also have home insurance which may include legal expenses insurance. Does this cover employment disputes?
Legal expenses insurance usually fully excludes employment disputes. And on the other hand, legal expenses insurance usually has an excess or own contribution and a payment cap, whereas we have neither.
Written by/photo: Juha Pöyry