Even the TUC describes a series of judgements from the European Court of Justice as “the greatest attack on workers’ rights since the Thatcher anti-union laws”. So workers had better get to grips with them…
Rulings from Luxembourg that threaten our trade union organisation
WORKERS, MARCH 2009 ISSUE
As industrial workers in the oil and other industries show signs of life and reveal that the emperor has got no clothes, even using the unmentionable M-word, migration, the malign effect of European Union membership and legislation is oh-so-slowly becoming apparent to even some of its closest adherents.
Lawyers have been among those most in favour of continuing EU membership and extending of EU practice in British law, such as the application of the social chapter (remember that?). The involvement of the European Court of Justice (ECJ) in the regulation of labour relations, not to mention the plethora of equalities legislation emanating from Brussels, Strasbourg and The Hague, have all been warmly welcomed.
Now even some of these lawyers are beginning to see the light which has been shining on class-conscious members of the trade union movement for many years. Four judgements of the European Court of Justice over the last twelve months have been described by many, now even (even!!) by the TUC, “as the greatest attack on workers rights since the Thatcher anti union laws of the 1980s”.
So workers had better get to grips with the judgements, and their consequences. The four judgements concerned are known as Viking, Laval, Ruffert and Luxembourg. They are of course complex to understand and Workers will not attempt to translate legalese into language that can be readily understood.
However, the main breadth of the attack represented by these judgements must be grasped and action taken.
The first thing to say is, of course, that these are not laws. They are judgements of the ECJ, and so will be seen as case law, in other words, the same as passing legislation in the European parliament, unless altered.
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The European Court of Justice building in Luxembourg Photo: Anders Gardebring |
This carries with it all the negative aspects of law making in Britain, where the work of legislators, allegedly elected in order to make law, can readily and easily be overturned by entirely unelected members of the judiciary who can completely re-draw the legal landscape in a way that nobody ever voted for.
This has been happening in Britain for several centuries – judge-made law preceded parliamentary law by hundreds of years – and it was always claimed that one of the benefits of European Union legislative mechanisms was that the law-making process arrived from elected parliamentarians in the European Parliament (hardly a democratic body) rather then unelected judges in the Hague.
Now this can be seen to be untrue, and case law of a deeply reactionary nature (when is it ever progressive?) is now going to pose serious threats to workers throughout Europe.
At the heart of these judgements lies that central attack on workers and workers’ rights represented by economic migration. To quote Hannah Reed, senior employment rights officer of the TUC, for the first time these ECJ rulings create a “hierarchy of rights” in which individual rights and rights of the employer are clearly separated and placed above collective rights of workers joined in trade unions.
Restricting the right to strike
She has pointed out that the combined effect of these judgements restricts the so-called right to strike in cases where transnational working is involved, and also severely limits the ability of member states to impose any kind of labour regulation which would benefit migrant workers. The judgements also indicate that industrial action “needs to be proportionate” and as a “last resort”.
Any trade unionist will tell you that industrial action is always both of these things; it is the employer’s action which prompted the industrial action, which can be disproportionate and often used in first resort.
Essentially, the judgements prevent member states paying rates of pay higher then the minimum wage levels in the country from which a worker has been posted. For example, if a posted worker comes from Poland to Britain where the minimum wage is higher than that in Poland, then in effect Britain could not impose minimum wage rates on Polish workers at the British level. In other words Polish workers would have to work at the Polish minimum wage in Britain.
Whether this will have the effect of turning around hundreds of thousands of Poles to go back and work in their economy is a moot point, but if that doesn’t happen millions of British workers will find themselves in competition with Polish and other migrant workers not just employed at the British national minimum wage, but employed at the minimum wage (if there is one) in the countries from which they originate.
If this isn’t bad enough, the judgements also specify, almost fascistically, that unions cannot take industrial action in order to improve conditions of migrant workers in order to bring up wage rates to those in the host country. This is such serious legislation that it has shocked to a state of wakefulness even the TUC and employment rights lawyers whose ears generally do prick up at the mention of migrant workers.
Hannah Reed describes this “as the biggest threat to trade unions in a generation”. But what is the TUC’s response? Again, to quote Reed, “of course it’s a big ask to get twenty-seven member states to sign up to a social progress clause, but that’s what we must do. We want a balance between business and the collective rights of workers.”
Dream on. Such wishful thinking has got us into this dangerous state in the first place. The only remedy that the EU deigns to allow to these draconian measures is that we place pressure on our member states – all twenty-seven – to sign up to this nebulous “social progress clause” to undo, eventually, the effects of the judgements of these unelected judges.
Taking a slightly broader view, Professor Keith Ewing, well known in the trade union world as an employment rights specialist, describes these judgements as “as big as Taff Vale”, but “not treated with the same degree of urgency by British unions”.
The Taff Vale judgement in 1905 meant that trade unions could be sued by employers for loss of profit following from strike action (which was and is of course the whole point of a strike). Overturning Taff Vale exercised the labour movement for decades and led to the formation of the parliamentary Labour Party.
These four judgements mark a neat circle from Taff Vale and place us back where we were. After a century of uncharacteristic progress within a nation state over which British workers exercised an increasing degree of control, we are now back where we were 100 years ago, facing not just one government but twenty-seven.
We will abide by these judgements at our peril.