After the general unfavourable judgments in Laval/Vaxholm and Viking (see our last issue) the ETUC has analysed their likely effects. They have also come up with various suggestions to repair the damage and for positive action to create a more favourable climate in the future.

In its resolution the European Trade Union Confederation points to the International Labour Organisation (ILO) convention, the European Social Charter and the new Charter of Fundamental Rights as guaranteeing the right to collective action. However, it says, the court has placed the freedom to provide services above this so creating a ‘hierarchy of norms’.  It also considers the judgment anti-democratic because it goes against decisions made by the European Parliament and the Council of Ministers in agreeing both the Posted Workers directive and the new Lisbon treaty.
The paper goes on to suggest both short-term and long-term actions which trade unions should consider in response. Among the short-term ones are making national systems Vaxholm/Viking-proof, including laws on public procurement (see ‘Rüffert’ case), using union legal experts to provide ‘early warning’ of controversial cases and to intervene as an ‘interested party’ in national and European court proceedings, and making sure that Member States have fully used the provisions of the Posted Workers Directive which can protect migrant employees. More long-term are proposals to introduce a social progress clause into the EU treaty, to bring in a time limit after which a foreign worker is no longer considered ‘posted’, to limit the free movement of services provisions in the EU treaty in favour of free movement of workers and to establish a ‘social chamber’ at the ECJ to hear social policy cases. On inter-union co-operation the ETUC wants deals with employers to extend beyond national boundaries without preventing host- country unions signing up migrants (dual membership) and recommends more cross-border contacts and deals.
The resolution concludes with a call to EU authorities to reassure unions that their fundamental rights are not diminished by freedom to provide services, so that they can prevent unfair competition between host-country and migrant workers.

Resolution available at:

http://www.etuc.org/a/4704

 

ECJ gives support to UK mother of disabled son
An opinion of the Advocate General of the ECJ has held that some UK anti-discrimination laws are drawn too tightly to implement EU directives properly. A Ms. Sharon Coleman contended that after giving birth to a son with breathing problems her employer, Attridge Law, refused to allow her to return to her old job and offered her less flexibility than other parents; there were also derogatory remarks. In 2005 she claimed disability discrimination. However UK law only refers to discrimination against a ‘disabled person’ rather than ‘on grounds of disability’ as specified by the EU directive. The employer therefore said that discrimination against Ms. Coleman herself was not covered. If the final judgment of the ECJ follows this opinion, there will be wide implications for millions of carers who have to give up work.

Victory for Irish union on fixed-term workers
In 1999 an EU directive implemented an agreement between trade unions and employers which aimed to protect workers on fixed-term contracts. Public authorities in Ireland had employed a group of workers on long chains of fixed-term contracts, extending them for up to eight years just before the directive was put into Irish law. This meant they had worse pay and conditions than permanent civil servants. However the ECJ agreed with the union Impact that the fact that the Irish government was late in doing this did not affect the date that the directive should apply.

Public procurement cannot equalise wages
Various public authorities have tried to make sure that when they contract out work, only companies which abide by certain labour standards are eligible. Now an ECJ judgment (Rüffert case) has threatened this practice, at least as far as wages are concerned. The government of Lower Saxony in Germany employed a private firm to build a prison but withdrew the contract when they found that some Polish workers were paid less than half the minimum wage. The court ruled that the authorities had infringed the Posted Workers directive guaranteeing ‘the freedom to provide services’.