Air crew strikes are often about more than just a paycheck. This was also the case with the AeroSvit crew in 2011. Their list of demands included timely payment of salaries, improving safety procedures and swift repairs of equipment onboard. The demands were legitimate but failed to trigger the airline and its management to improve the conditions for crew. After failed mediation and reconciliation, crew were ready to use their final and ultimate tool to attract management’s attention: a strike.
But that didn’t move the former AeroSvit management either. Instead, it lodged a claim with District Court of Kyiv against the flight attendants’ trade union, seeking to have the strike declared unlawful.
Unfortunately, there is nothing extraordinary in the sequence of events. We have seen – time and time again – that employers try to halt industrial actions in Courts. This was recently the case of British Airways, trying to ban a strike. In a similar fashion, Ryanair sought a strike injunction in the UK and Ireland. Such Court interventions – sometimes clinging to the small, technical details of the balloting process or questioning the union representativeness – have become the typical response by certain airlines. For multi-billion business with troops of lawyers at their side, there’s nothing to lose in such a Court battle. Even if the bid is unsuccessful, they’d be keeping the union busy and, in some cases, almost resourceless. Rarely these injunction requests are successful. But AeroSvit won.
For multi-billion business with troops of lawyers at their side, there’s nothing to lose in such a Court battle
The Court in Kyiv found that an AeroSvit flight attendants’ strike would be unlawful and banned it. The Court relied on section 18 of the Ukraine Transport Act, which prohibited strikes at transport enterprises if they affected passenger carriage. As a result, both cabin crew and pilots in Ukraine effectively found themselves barred from striking, ever. The prospect that this is actually possible is daunting. That’s why cabin crew and their union continued the legal battle.
It took years until union members brought victory home. But they did: in the case of Veniamin Tymoshenko and others v. Ukraine, the European Court of Human Rights (ECHR) acknowledged that Ukrainian law deprives pilots and cabin crew of the right to strike. The ECHR did recognise there is a violation of Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Unfortunately, by the time the Court reached this verdict, the airline was already bankrupt. And a law modification – draft law No. 4639 – that would ensure Ukraine complies with the ECHR decision is still missing, stuck in the Ukrainian Parliament since July 2017.
Cabin crew and pilots in Ukraine effectively found themselves barred from striking, ever.
The Ukrainian government will eventually have to comply with the decision. The EU and Ukraine are close to signing what is called a ‘Common Aviation Area Agreement’ whose objective is to gradually extend the internal aviation market to Ukraine. But beyond market opening, the agreement will also provide a modern framework and high standards for a wide range of aviation issues, such as passenger rights, air traffic management, economic regulation, competition issues or social aspects. And what could be a better ‘social aspect’ than introducing and safeguarding the basic right to strike? In any case, Ukraine’s battle for strikes is a good reminder for European decision-makers and negotiators to ensure that social standards are respected under any future aviation agreement.