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ISSUE 71 page 6

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Recent rulings from the European Courts

First crack in ‘Laval’ wall gives unions hope

In a landmark judgement on posted workers the European Court of Justice (ECJ) has made the first retreat from anti-union decisions seen in the ‘Laval’, ‘Viking’ ‘Rüppert’ and ‘Luxembourg’ cases (see many past issues). We examine the latest instalment, which concerned Polish workers on a Finnish nuclear reactor, and its possible EU-wide ramifications.

While the Swedish government has promised to change a  national law which enforced the ‘Laval’ decision (see issue 65)  allowing employers to pay foreign workers less than home-country citizens, the negative Europe-wide consequences of that case have been largely unchecked. A revision of the Posted Workers directive met with an underwhelmed reaction from trade unions and such helpful court decisions as there have been (see issue 61) have only nibbled at the edges of the problem. But now a case from Finland seems to have led to the first step away from the ECJ’s restrictive approach to union action.
The Finnish Electrical Workers’ Union were seeking a total of more than €6.5 million in outstanding pay claims against a Polish company who hired 186 electricians to work on a nuclear power plant in Finland. The court ruled that the Poles must be payed the rate for the job, including holiday bonuses and  other benefits, stipulated by the relevant collective agreement in the host country. The decision made reference to the Charter of Fundamental Rights of the European Union even though Poland, like the U.K., has opted out of the Charter. Similarly it held that a Polish law forbidding the collection of the money by a trade union was irrelevant.
‘The decision has great importance for both Finland [and] the European Union as a whole’ said Martti Alakoski, chair of the Finnish union. Jari Hellsten, a lawyer for SAK, the Finnish union federation added ‘The judgment settles the issue of the terms and conditions on which European Union businesses may operate in other Member States’. Although the preliminary ruling by the Advocate General of the court only considered that lowest rates of pay applied to foreign workers the ETUC believes that in the latest judgement ‘the equal pay principle has trumped social dumping and competition at all costs’. ‘We welcome this judgment which was indispensable for the dignity of posted workers’ confirmed Veronica Nilsson.

 

Finnish unions win victory on temporary agency workers
Fixed-term probation does not imply fixed term job
Airline fuel suppliers Shell Aviation have lost their legal dispute with Finnish transport union AKT over the employment of temps. The union brought an action on the ground that the company had ignored a deal which forbade the use of temps except for special reasons such as work peaks or professional knowledge. In its defence Shell cited the Temporary Agency Workers directive of 2008 which instructed national authorities to make sure that no contrary laws or terms of collective agreements were in force. They said that the court should throw out the union’s claim as it was based on restrictions on the use of temporary workers that the directive did not allow. However the European Court of Justice ruled that the directive only required national governments to review existing laws and agreements. The Finnish authorities had done this and so it was not possible for the courts to strike down any that they thought did not comply.
A law passed in 2012 in Spain with the intention of creating more jobs following the financial crash has rebounded on a Bolivian cook. Ms Nisttahuz Poclava worked for a hotel company under a contract of indefinite duration to help entrepreneurs. The relevant Spanish legislation allowed a probation period of one year. During this time the employee has no protection against dismissal. After 41/2 months Ms. Poclava was sacked.  Her legal action was based on the EU Charter of Fundamental Rights and the 1999 directive on fixed-term employment. However the European Court of Justice ruled that the 2012 measure was not implementing EU law and thus was not covered by the charter. Also, despite the fixed period of probation the work contract was open-ended and so did not count as ‘fixed-term’.




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