The ETUC demand for a Social Progress Protocol
Collective action can be broadly defined as situations of concerted work stoppage. The right to take collective action is a fundamental right. It is the corollary of the right to negotiate and conclude collective agreements. Whilst the conditions for the exercise of the right of collective action are defined at national level, the reasons which lead trade unions to envisage collective action often exceed national borders. The increasing mobility of companies in an enlarged internal market can, in the absence of meaningful social dialogue, and the appropriate regulation be a threat to workers’ protection throughout Europe.
In the Laval and Viking cases, the European Court of Justice (ECJ) has reinforced the superiority of economic freedoms over fundamental social rights and made the exercise of the right of collective bargaining and action subject to considerable restrictions. These judgments are not only denying trade unions equality of arms vis-à-vis European businesses; they also violate fundamental rights as protected by national constitutions and legislation, by Art. 28 of the Charter of Fundamental Rights and numerous international instruments.
The ETUC is urging the European authorities to confirm that the EU is not just an economic project but has as its main objective the improvement of living and working conditions of its populations, and that the concept of social progress is of fundamental importance for keeping the support of Europe’s citizens and workers for the European project. The ETUC is pressing the case for a Social Progress Protocol in the EU Treaties to underline this point.
THE CONSEQUENCES OF THE LAVAL AND VIKING JUDGMENTS
Collective actions are not unlawful as such. The European Court of Justice does recognize the right to take collective action as a fundamental right which forms an integral part of the general principles of Union’s law. However, the Court made the exercise of this right subject to major restrictions.
The impact of the judgments will vary depending on trade union policy and on the national legal boundaries to collective action. In general, trade unions might now tend to be more hesitant to actually take action, especially in Member States where an employer can preventively ask a judge to stop the collective action.
The rulings of the ECJ are only applicable, if the collective action can be characterized as having transnational effects. Industrial disputes arising in a purely domestic context should not in principle be affected by the judgments. But how to define when a case is still purely national? This issue will most certainly be the subject of legal challenges across the Union.
In the Laval case, the Court ruled that the Posting of Workers Directive does not authorise collective actions seeking to impose terms and conditions of employment which are not fixed in advance in accordance with one of the methods described by the Posting of Workers Directive (law, universally applicable collective agreement or generally applicable collective agreement). Moreover, collective actions must not seek to impose matters which are not explicitly listed in Article 3.1 of the Posting of Workers Directive.
If a collective action falls outside the scope of the Posting of Workers Directive, it has to be justified on a case by case basis. The national judge will therefore assess if the collective action pursues a legitimate objective compatible with the European treaties, is suitable for the attainment of that objective and does not go beyond what is necessary.
In the Viking judgment, the Court ruled that a national judge has to apply the following test:
First, it has to be established that the ‘jobs or conditions of employment at issue are jeopardised or under serious threat’
Secondly, even if the collective action falls within this narrow band of permissibility, the courts have to ascertain that the collective action is suitable and does not go beyond what is necessary to attain its objective
In determining what is necessary for these purposes, the judge will assess whether the trade union had exhausted any other methods of dispute resolution which cause less restrictions to freedom of establishment
In sum, a collective action can be recognised as a permitted restriction on the rights of businesses to move in the Union but only in narrowly defined circumstances. Considerable insecurity arises as a result of these judgments. Trade unions around Europe are left with not knowing what “proportionate” action is and what is not. Presumably a court will define “proportionality” in the context of each case, so creating intolerable uncertainty for unions involved in virtually any case of industrial action over migration and free movement, a naturally growing area for disputes as Europe integrates its labour and services markets.
In some Member States, the right to strike is a first rank constitutional right and this is now at risk. So, generally, is trade union autonomy.
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