From Socialist Voice, January 2008

A “fundamental right” that can’t be defended

At the end of 2007 the European Court of Justice issued a judgement in relation to a very important case involving a Latvian building company.
    The company, Laval, posted workers from Latvia to work on building sites in Sweden. The Swedish building and public works union placed a picket on the site of a school that Laval was building and where it was paying only the Latvian building workers’ rate—far below the rate for Swedish building workers. It was unable to reach agreement with the company in relation to wages being paid on the site.
    The building workers’ union was joined in a sympathy action by the Swedish electricians’ union, none of whose members were employed by Laval.
    Laval brought the case to the European Court of Justice, seeking to have the actions declared unlawful. The company argued that its freedom to provide services in another EU member-state was infringed in circumstances where the pay rates being demanded by the Swedish union were greater than those protected by the “Posted Workers Directive.”
    On 18 December the court ruled as follows:
    1. The right to take industrial action is a fundamental right.
    2. Businesses have freedom to provide services throughout the European Union.
    3. Industrial action is a restriction on that right.
    4. Industrial action to prevent social dumping may amount to an overriding reason of public interest, which falls within the scope of protecting workers.
    5. In the context of posted workers, industrial action cannot be justified where the pay levels sought exceed any prescribed by national or European law.
    6. Rules on industrial action in member-states to which workers are posted that fail to take account of collective agreements in the state in which the business was originally established discriminate against that business.
    As with the ruling in the Viking case the previous week, the European court emphasises the “fundamental” nature of the right to take industrial action; but industrial action in support of union demands in member-states to which workers are posted will not be justified where the protection demanded exceeds the protection provided to workers under the “Posted Workers Directive” and clearly defined national legal requirements, such as a minimum wage.
    It appears that if a union or group of unions has an agreement with employers in a particular industry, for example in the construction industry, the rate struck for a tradesperson in that industry is not enforceable. The only real and binding wage is the national minimum wage, not the industry rate.
    In other words, all that unions can take industrial action on is the enforcement of the minimum wage. We could thus end up with the minimum becoming the maximum wage.
    Richard Arthur, head of trade union law at Thompsons, one of the largest law firms in Britain, stated: “The ECJ’s ruling runs roughshod over trade union rights which have been almost universally recognised throughout the European Community, and in numerous international treaties and instruments, for many decades.
    “It is absurd for the ECJ to say that the right to take industrial action is a ‘fundamental’ right forming an integral part of the general principles of Community law, and then to rule that that right is superseded where an employer complains that the union is seeking terms and conditions in excess of the minimum provided by the Posted Workers Directive. The Posted Workers Directive is intended to set a minimum level of protection for workers posted to separate states.
    “The rulings are poorly reasoned and inconsistent, and completely fail to recognise the dual purpose of promotion of social policy as well as the optimisation of business conditions, which the ECJ says lies at the heart of the European Community.”

    In the Viking and Laval rulings, trade unions have seen their internationally recognised right to take industrial action relegated by the ECJ to below that of the business interests of employers. From this ruling it now appears that workers have the right to take industrial action but that this right is secondary and inferior to the right of employers to carry on their business.
    These rulings from this most centralising and highly political institution within the bureaucracy of the European Union will pose great dangers for Irish and European workers. This body continues to take upon itself more and more powers and the right to interpret laws very much in favour of big business.
    Under the proposed Lisbon Treaty the European Court of Justice would be assigned the role of superior and final court of appeal, over and above national court systems and traditions.

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