The British government has declared that strike action is not a ‘fundamental social right’. The government, represented by QC David Anderson (on January 11th) was giving evidence in the European Court of Justice in relation to strike action by Swedish trades unionists when the company Laval brought in Latvian workers to build a school in the Swedish town of Vaxholm. Laval is claiming that the union broke European law. The action was against paying Latvian wages rather than Swedish union negotiated rates for the work.Also currently before the court is a case brought by Finnish company Viking Line against the International Transport Workers Federation. The case related to the threat by Finnish workers to strike when the company tried to register a liner in Estonia to take advantage of 60% lower wage costs. They were defending the wage rate for the job (negotiated by the Finnish Seamen’s Union) irrespective of the national origins of the crew. As it happened strike action did not take place. In August 2004 Viking applied to the UK Commercial Court in London for an order to stop the ITF and the FSU from taking any action to prevent the re-flagging of the Rosella on the grounds that it would hinder their ‘fundamental right of establishment and freedom to provide services’. Whereas the Commercial Court considered that the proposed action of the ITF and the FSU were contrary to European law, the UK Court of Appeal, in a judgement given on 3 November 2005, decided that the case raised important and difficult questions of European law and subsequently referred it to the European Court of Justice (see below). The judgement of the ECJ will become part of European law and apply to all EU members.
Hence these cases will potentially determine whether businesses can relocate to take advantage of cheap Eastern European labour without the threat of strike action, and whether EU law overrides national laws protecting workers from exploitation. Countries such as Finland, Denmark and Sweden have constitutional protection for trade union rights. A ruling in favour of Viking or Laval would mean EU law overriding domestic laws.
This would have disastrous implications for trades unions, effectively opening the way to using migrant labour at the rate for the home rather than the host country. This issue was a major source of dispute in the EU Services Directive which originally included the right to employ foreign labour at ‘country of origin’ wage rates rather than at the union negotiated rates in the country where the work was taking place.
Of the 15 countries making submissions to the European Court, the UK was the only one to state that strike action is not a fundamental social right. In effect the government is supporting the ‘right’ of employment of cheaper foreign labour to undermine trades unions. It is also supporting the ‘principle’ that free movement of labour is a more important right than the right of workers to withdraw their labour in order to defend their wages and conditions of work. This is nothing other than ‘free market fundamentalism’ of the worst kind. Perhaps Blair had this in mind when speaking of the ‘shared values’ which Britain is supposed to have in common with the United States.
Every Labour MP, especially those sponsored by the unions, should be put on the spot over this issue, with the demand that they express oppose the government’s psoition. Any sponsored MP who refuses to support the unions in relation to such a fundamental issue should have their support stopped by Labour affiliated unions.
The ECJ will address the following questions:
· Should Member State ‘social models’ and labour law as determined in accordance with the principle of subsidiarity be made subject to the economic freedoms of the EC Treaty (Articles 43 & 49) i.e. in this case the Finnish constitutional right of workers and their organisations to negotiate collective agreements at an appropriate level of pay and to take industrial action in cases of conflict?
· What should determine the balance between guaranteeing economic freedoms (Title III) on the one hand and fundamental rights (Title XI & Charter of Fundamental Rights) on the other?
· Should the ECJ be the arbiter on matters of industrial action, expanding the EU’s sphere of competence in this area and potentially impinging on national sovereignty?
· Should all industrial action that has the effect of restricting the freedom of movement be justified by trade unions before the courts, and ultimately before the ECJ?