|DENNY: EU tightening the noose on trade unions|
In the Star, No2EU convenor Brian Denny analyses new regulations which represent an escalation of the anti union strategy of the prmoters of a single unregulated market across the EU.
Drawn up by unelected "technocratic" Italian Prime Minister Mario Monti, a new regulation deals with the controversy that has raged around two famous anti-trade union judgments - known as the Viking and Laval cases - by the European Court of Justice (ECJ), recently renamed the Court of Justice of the European Union (it is not to be confused with the European Court of Human Rights, which is not an EU body).
As a leading member of the secretive Bilderberg Group, that invitation-only club of the West's top financiers, industrialists and politicians, and an international adviser to Goldman Sachs, Monti has predictably backed the ECJ judgements and has now enshrined them into EU law.
As Institute of Employment Rights (IER) director Carolyn Jones explains, in the ECJ cases the court decided that the right of employers to roam the globe looking for cheap labour to provide "goods and services" trumped the fundamental right of workers to take action to protect their terms and conditions of employment.
"So in Viking, a Finnish ferry company undermined the terms of Finnish seafarers by 'reflagging' in Estonia and hiring cheaper Estonian workers.
"In Laval, a Latvian company undermined the terms of a Swedish collective agreement by employing cheaper Latvian workers to work on a Swedish building site," she says.
In both cases the trade unions concerned took strike action in defence of their terms and conditions. And in both cases the ECJ decided that Article 43 (freedom of establishment) and Article 49 (freedom to provide services) of the EC Treaty were more fundamental than the right to strike.
The application of Viking and Laval in the domestic courts of EU member states has been the subject of complaints to International Labour Organisation (ILO) supervisory bodies, which in turn have made it very clear that the law as developed by the ECJ is not consistent with obligations arising under ILO Conventions 87 and 98.
One such complaint was taken by pilots union Balpa, which during a dispute with British Airways was threatened with legal action and unlimited fines - not because the union had acted in breach of domestic law but because its proposed action would constitute a breach of the employer's right under the EC Treaty Article 43 (now Treaty on the Functioning of the European Union Article 49) following the decision in Viking.
In response, the ILO committee of experts has made clear that the effect of Viking as reflected in the decision against Balpa was to take Britain even further in breach of Convention 87.
According to the committee "the omnipresent threat of an action for damages that could bankrupt the union, possible now in the light of the Viking and Laval judgements, creates a situation where the rights under the Convention cannot be exercised."
Now Monti II, signed off on March 21, undermines the right of trade unions to engage in collective bargaining at a stroke.
It restricts the right to take collective action in a number of ways.
It ensures that economic "freedoms" take priority over fundamental social rights.
It reinforces the "proportionality" test as developed in the Viking case allowing ECJ and national judges to decide if collective workers' action is "necessary."
It reinforces the interpretation given by the ECJ in the Viking and Laval cases and does not solve the problems resulting from the judgements.
The IER's professor Keith Ewing says that the Monti II regulation "fails to address the changing nature of human rights law on the right to strike."
Instead, the regulation would codify the ECJ decisions into EU law, leaving ECJ and national judges to use a proportionality test that is narrow and weighted in favour of business interests.
"There will be no solution to the Viking and Laval problem until there are clear rules indicating that collective action may be taken in accordance with human rights principles, and until the threat of unlimited damages is lifted from trade unions for exercising a fundamental social right," Ewing says.
Carolyn Jones points out that the failure of the regulation to correct the growing imbalance between the economic rights of employers and the human rights of workers highlights the limitations of "social Europe" as presented by Delors and embraced by the labour movement in 1988.
"The Treaty for Stability, Co-ordination and Governance signed by the eurozone governments in March 2012 promises to take Europe still further down the path of austerity by imposing draconian cuts on nation-states in the name of deficit reduction.
"If unions continue to be restricted in how they can legally respond to those cuts, then perhaps alternative action is now required.
"One such action that would help focus the minds of the EU would be to support calls across Europe for referendums on EU membership," she says.
RMT is one union that has long argued that the "social Europe" agenda was a smokescreen used to absorb the organised working class into EU structures while delivering very little for workers.
Speaking recently at a People's Pledge meeting in Thurrock calling for a referendum on EU membership, RMT general secretary Bob Crow warned that unelected EU institutions, directly representing Europe's biggest banks and their interests, were removing elected governments and imposing mass unemployment, social dumping and unending austerity everywhere.
"It is time that the trade union movement demanded a referendum in order to build resistance to capitalist greed, whether it's the EU or its junior partner, this rotten Con-Dem government," he said.
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