volume 08 number 1
2008 Summer Edition
federation news
FE DE R ATI O N NE WS GF TU/I E R
The Institute of Employment Rights The People’s Centre 50-54 Mount Pleasant Liverpool L3 5SD tel: 0151 702 6925 fax: 0151 702 6935 email office@ier.org.uk www.ier.org.uk
General Federation of Trade Unions Central House Upper Woburn Place London WC1H 0NY 020 7387 2578 (24hrs) fax 020 7383 0820 email gftuhq@gftu.org.uk www.gftu.org.uk
The Institute of Employment Rights was launched in 1989. As a labour law ‘think tank’, supported by the trade union movement, its purpose is to provide research, ideas and detailed argument. In 1994 the Institute was granted charitable status.
The General Federation of Trade Unions was founded in 1899. It provides services and benefits, mainly in the fields of education and research, to affiliated unions. The education work of the Federation is administered through an Educational Trust, which was established in 1971. Federation News is a series of short articles in the subject areas of labour law, labour economics and industrial relations, which are of interest to industrial relations practitioners and students.
The results of the work of the Institute are published in papers and booklets and developed at conferences and seminars. Our aim is to provide the tools of analysis and debate for the trade union movement in the area of labour law.
We welcome the submission of articles for consideration for publication in future editions. Please send articles to the Institute of Employment Rights at the above address or electronically to cad@ier.org.uk. The views expressed in Federation News do not represent the collective views of the Institute of Employment Rights or of the GFTU, but only the views of the authors. The responsibility of the Institute and the GFTU is limited to approving this publication as worthy of consideration within the labour movement.
Editor Michael Bradley Executive Editors for this edition Mark Bell and Carolyn Jones Advisory Editorial Board John Bell Richard Beresford Stephen Cavalier Bill Dewhurst Rosie Eagleson Keith Ewing John Fray Dan Gallin John Hendy Judith Jackson Carolyn Jones Aileen McColgan Doug Nicholls Roger Seifert Dave Spooner Roger Welch Frank Wilkinson David Tarren ISSN 0014 9411
VO LUM E 08 NU M BE R 1 SU M M ER 2008
Contents Editorial: Europe at a Crossroads
Carolyn Jones
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Introduction: European labour law at a crossroads
Mark Bell
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The Right to Strike and the European Social Charter
Colm O’Cinneide
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Understanding the Viking and Laval cases
Mark Bell
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Third Case Unlucky: Ramifications of Ruffert
Richard Arthur
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IER conferences & seminars for 2008-9
15
Trade Union Strategic Cases Unit
John Hendy QC
19
European labour law after the Treaty Of Lisbon
Diamond Ashiagbor
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Europe at the Crossroads
Brian Bercusson
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Editorial: Europe at a Crossroads European labour law is at a crossroads. Recent decisions of the European Court of Justice (ECJ) have shone a spotlight on what many see as a fundamental contradiction at the heart of the European project. That contradiction poses the freedom of trade unions to protect the rights of workers against the freedom of capital to roam the globe in search of free markets and flexible workers. Of course many would argue that this contradiction has been a feature of the European Community since its establishment by the Treaty of Rome in 1957. Others however would argue that those contradictions have been diminished as the European Economic Community grew into the European Union with a social agenda. So what makes the 2008 “crossroads” significant? This edition of Federation News aims to examine that question and assess why Europe is facing its current “constitutional crisis” and what, if anything, can be done about it.
Social Europe v social dumping For many, the ECJ cases have demolished the idea that Europe will deliver social rights. In the past, Europe has offered a vision of a social Europe that few could resist, particularly in the UK where workers have suffered the double whammy of weak employment rights and restrictive trade union laws. Europe on the other hand seemed to recognise the role unions play in delivering fairness at work - placing them at the centre of a framework of social dialogue and recognising at a constitutional level the fundamental right to strike and to bargain collectively. And yet, as Mark Bell and Richard Arthur highlight, the recent cases of Viking, Laval, Ruffert and Luxembourg unpick that social agenda by reasserting the primacy of economic over social rights and undermining the freedom of unions to protect the terms and conditions of workers. In these important cases the ECJ has fatally undermined two fundamental aspects of trade union activity – the right to strike and the right to bargain collectively. Can the vision of a social Europe survive this onslaught? That is perhaps the first “constitutional crisis” facing Europe.
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International standards v ECJ decisions Of course there are alternative visions to those posed by the European Court of Justice. As Colm O’Cinneide reminds us in his article, the European Social Charter of 1961 was introduced to ensure that member sates respect the basic economic and social rights of workers. Article 6 of that Charter protects the right to bargain collectively, a right interpreted as guaranteeing the positive right to strike. Similarly, as John Hendy’s article highlights, the European Court of Human Rights (overseeing the European Convention of Human Rights) and the ILO’s Committee of Experts (overseeing Conventions 87 and 98) have both adopted a more sympathetic attitude to freedom of association and trade union rights and have both recently criticised UK laws. But can they or will they challenge the decisions of the ECJ? Although not a part of the European Union, they nevertheless have a recognised role to play in setting the international standards governing the global economy. Their vision cannot simply be ignored. The difference in interpretation between those bodies and the ECJ represents a second constitutional crisis facing Europe.
Security v flexicurity The third crisis for Europe (and one not disconnected with the first two) is the rejection of the Treaty of Lisbon by the people of Ireland. What the Irish government or indeed the EU do in response has yet to be decided, leaving a democratic deficit at the heart of the process. More important is the fact that the no vote reflected an obvious unease amongst working people about the direction of European policy. Europe and its constitutional arrangements are clearly being measured against whether they will protect workers and public services against the demands of unregulated global capital. The policy signals are not good. As Diamond Ashiagbor outlines in her article, the European Council’s Lisbon Strategy of 2000 and the European Commission’s 2006 Green Paper on modernising labour law, both placed “flexicurity” above the protection of jobs. Deregulation has been a constant theme, with few advocates for social policy
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regulation and a shift away from traditional employment protection measures. Against such a policy backdrop, the ECJ decisions were seen as reaffirming the neoliberal agenda - an agenda rejected by the people of Ireland.
ECJ decisions: deviation or direction? So what’s to be done? In a concluding article by Brian Bercusson, it is suggested that the decisions of the ECJ represent a radical deviation from EU policy and constitutional protections. He believes that the politically responsible institutions of the EU should stand firm against this perversion of policy and reassert the democratically won protections built into the Services Directive, the Posted Workers’ Directive and the Directive on Public Procurement. Brian outlines what action he believes should be taken at both European and national level to reassert a 21st century vision of Europe over what he refers to as a 19th century doctrine of market freedoms. Whether the politically responsible institutions of the EU have the political will to reject the ECJ doctrines and reverse the harmful court decisions is yet to be seen. Whether the ECJ decisions represent a distortion of European policy or reflect the reality of the European Union remains at the heart of the argument for and against Europe. Perhaps the European Parliamentary elections in 2009 will focus political minds on the issues of concern to European electors? Perhaps the European Commissioners, due to be appointed that same year, will be less wedded to the policies of deregulation and “flexicurity” and reassert principles of social progress built on social justice?
Challenging inadequate laws For workers in the UK the starting point should be to challenge the inadequacies of our own framework of labour law. Even the ECJ declared that the right to strike is a fundamental right recognised in EU law. Yet in so many instances UK workers have been denied that right due to our restrictive anti trade union laws. To date, the political will to repeal those laws has been weak. Whether the principles contained in the Trade Union Rights and Freedoms Bill will be reflected in the next manifesto, is yet to be seen. As John Hendy outlines in his article, if we can not change our laws through political avenues we should look hard at the litigation options. One possibility is for unions to work together to identify strong strategic cases which can challenge those UK laws already identified as being in breach of international standards. Developing a body of international case law through the ILO and European Social Rights Committee mechanisms can help to reaffirm the right of unions to protect workers both nationally and internationally. Such challenges in the UK may also encourage other international trade union centres to challenge the failure of their own governments to protect their constitutional rights in the face of hostile decisions of the European Court of Justice. Carolyn Jones Director, IER
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federation news
Richard Arthur is a partner and head of collective and institutional employment rights at Thompsons Solicitors. He specialises in industrial action, recognition and all other aspects of trade union law and has a particular interest in human rights law. He regularly represents trade unions and their members in all courts and tribunals in the UK and Europe Diamond Ashiagbor is Reader in Law at University College London. She researches and publishes in European Union, employment and equality law.
Mark Bell is a Professor of Law at the Centre for European Law and Integration, University of Leicester. He is a member of the European Commission's Network of Legal Experts in the NonDiscrimination Field and a member of the Editorial Board of the European Anti-Discrimination Law Review. He is a founding member of the Academic Network on the European Social Charter. He is co-convenor of the Labour Law section of the Society of Legal Scholars and a member of the Equality Advisory Group of Justice. Brian Bercusson is Professor of law at Kings College, University of London where he has been Chair in European Social and Labour Law since 2000. John Hendy, QC is Head of Old Square Chambers, Chairman of IER, Joint National Secretary of the United Campaign for the Repeal of Anti Union Laws and a Vice-President of International Centre for Trade Union Rights. Carolyn Jones has been the Director of the Institute since its inauguration in 1989. Published by the GFTU Educational Trust Central House Upper Woburn Place London WC1H 0HY in association with The Institute of Employment Rights The People’s Centre 50-54 Mount Pleasant Liverpool L3 5SD
Produced by IER Printed by Upstream Picture credit Jess Hurd (reportdigital) European trade unionists march for a social Europe, workers’ rights and against neoliberal privatisation policies. EU Summit, Nice, France Price £8 to IER subscribers and members (£30 others)
Colm O’Cinneide is a Senior Lecturer in Law at University College London. He is a graduate of NUI (Cork) and is member of the Irish Bar. He has published extensively in the field of human rights and anti-discrimination law, and was a member of the UK Task Force on the establishment of the new Commission for Equality and Human Rights. He is currently a member of the Committee of Independent Experts that supervises state compliance with the European Social Charter.