EU ATTACKS WORKERS’ RIGHTS

RMT helpline 0800 376 3706 :: may/june 2012 :: RMTnews 22 EU ATTACKS WORKERS’ RIGHTS European Commission proposes to restrict trades union rights and gives courts the right to decide on the ‘proportionality’ of any collective action by workers Labour movement calls for a referendum on Britain’s membership of the European Union grew recently after the European Commission unveiled further attacks on trade-unions rights enshrined in new EU Regulations known as Monti 2(1). Monti 2 was drawn up to deal with the controversy that has raged around two famous anti-trade union judgments by the European Court of Justice – recently renamed the Court of Justice of the European Union – known as the Viking and Laval cases. Institute of Employment Rights director Carolyn Jones explains that in those cases, the court decided that the right of employers to roam the globe looking for cheap labour to provide ‘goods and services’ trumped the fundamental rights of workers to take action to protect their terms and conditions of employment. “So in Viking, a Finnish ferry company undermined the terms of Finnish seafarers by reflagging in Estonia and hiring cheaper Estonian workers. “In Laval, a Latvian company undermined the terms of a Swedish collective agreement by employing cheaper Latvian workers to work on a Swedish building site,” she said. In both cases the trade unions concerned took strike action in defence of their terms and conditions. In both cases, the ECJ decided that Article 43 (freedom of establishment) and Article 49 (freedom to provide services) of the EC Treaty were more fundamental than the right to strike. The application of Viking and Laval in the domestic courts of EU Member States has been the subject of complaints to the ILO supervisory bodies, which in turn have made it very clear that the law as developed by the ECJ is not consistent with obligations arising under ILO Conventions 87 and 98. One such complaint was taken by the pilots union BALPA which, during a dispute with BA was threatened with legal action and unlimited fines, not because the union had acted in breach of domestic law, but because its proposed action would constitute a breach of the employer’s right under the EC Treaty, Art 43 (now TFEU, Art 49) following the decision in Viking. In response, the ILO Committee of Experts has made clear that the effect of Viking as reflected in BALPA was to take the UK even deeper in breach of Convention 87. According to the Committee, ‘the omnipresent threat of an action for damages that could bankrupt the union, possible now in the light of the Viking and Laval judgments, creates a situation where the rights under the Convention cannot be exercised’. Today Monti 2, the new technocratic rules proposed by the European Commission in March, undermines the right of trade unions to engage in collective bargaining at a stroke. It restricts the right to take collective action in a number of ways: • It does not ensure that economic freedoms do not take priority over fundamental social rights or that, in case of conflict, fundamental social rights will take precedence • It reinforces the ‘proportionality’ test as developed by the European Court of Justice in the Viking case which leaves it up to the ECJ and national judges to decide if collective action is necessary • It reinforces the interpretation given by the ECJ in Viking and Laval cases and does not solve the problems resulting from the judgments According to professor Keith Ewing of the IER, the Monti 2 Regulation “fails to address the changing nature of human rights law on the right to strike”. Instead, the Regulation would codify the ECJ decisions into EU law, leaving ECJ and national judges to use a ‘proportionality’ test that is narrow and is weighted in favour of business interests. “There will be no solution to the Viking and Laval problem until there are clear rules indicating that collective action may be taken in accordance EU WAIVES THE RULES: In 207 the European Court of Justice ruled in favour of Viking Line’s right to impose social dumping by replacing Finnish seafarers with low wage Estonian labour. The EU court ruled that an international trade union campaign against ‘flag of convenience’ shipping was in breach of EU rules on ‘free movement’.