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ISSUE 59 page 6

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Unions lose again on Posted Worker directive in EFTA court opinion 

The European Free Trade Association (EFTA) includes four countries which subsribe to the same principles as the EU without some of its more political aspects. Currently Iceland, Liechtenstein and Norway have access to the EU internal market and have to abide by the directives governing it. Recently Norwegian shipyards appealed to the EFTA court in a dispute  which has echoes of  the famous Laval case.

In Norway, in common with many EU Member States, the system of industrial relations allows the provisions of collective agreements to be extended throughout the relevant sector. Thus when the Norwegian United Federation of Trade Unions (Fellesforbundet) made a deal with shipyard companies concerning working time, compensation for stays away from home and travel, meal and lodging expenses, the government made it legally binding throughout the industry. The employers, appealing to the EFTA court cited the EU Posted Workers directive as not obliging them to pay the expenses and compensation to foreign workers or to conform to agreements that went further than national legislation.
In an advisory opinion the court decided that the directive did not include payment of expenses in its list of conditions for posted workers and that compensation for time away from home could only be justified by pursuing ‘a public interest objective’. It also held that extending collective agreements did not breach the directive in principle but had to be applied to all companies in the sector and/or geographical area. It was left up to the national court to rule on this specific case.
The employers’ associations welcomed the opinion on travel, meals and lodging and believe that overnight compensation will be outlawed when the court makes its final decision. The Norwegian Confederation of Trade Unions (LO) accepted defeat on expenses but hopes that they may still win on   compensation. Fellesforbundet fears that companies that employ foreign labour will now undercut their competition by deducting expenses from wages and that restricting the extension of collective agreements will impair their ability to protect posted workers. Once again, as in the Laval (also known as Vaxholm) and Viking decisons (see issue 41) it seems that the court has inverted the Posted Workers directive so that it enforces a maximum rather than ensures a minimum level of working conditions for posted workers.


Ryanair in trouble again (this time over care and compensation)
Belgian strike law breaks social charter
Ireland-based cut-price ariline Ryanair is no stranger to the courts of Europe (see many past issues). Now it has received an unfavourable opinion from the ECJ concerning care for stranded passengers in 2010. A Ms. McDonagh had booked with the company to travel from Faro in Portugal to Dublin but, on the day of her flight, the aviation authorities closed much of European air space due to an ash cloud from an erupting volcano in Iceland. She should have been covered under EU regulations which give airlines a duty of care when ‘extraordinary events’ occur. But Ryanair refused to pay the €1,129 that she spent in the seven days before a replacement flght could be arranged, arguing that because the circumstances were ‘particularly extraordinary’ they were released from their obligations. Advocate General Bot did not agree that there was such a category and distinguished between compensation payable when a cancelled flight had caused inconvenience and costs of care while waiting for a replacement.
Three Belgian union federations and the European Trade Union Confederation (ETUC) have won an action before the Council of Europe’s Committee of Social Rights (ECSR) over interference with the right to strike by the courts in Belgium. The unions complained that Belgian law allows judges to prohibit strikes on the application of employers in advance without any chance for contrary argument. The Committee, which decides whether signatory countries are upholding the 1961 European Social Charter’s guarantee of social and economic human rights, said that national courts could only intervene to stop picket line violence or to uphold the right not to strike. Unions in Belgium now want to talk to the government to implement the decision and to set up mediation procedures.

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