Members of the court in discussion behind a dossier regardind the hearing on the "Laval" case atthe Court of Justice in Luxembourg, ine court ruled, in a landmark case, on December 18, 2007 thai an employers' so-called 'freedom of establishment' overrode any trade union rights.The future freedom of trade unions to organise industrial action has been thrown into jeopardy by two recent decision of the European Court of Justice ("ECJ"). The ECJ has been prepared to balance the freedom to organise industrial action against employers' EU law business rights.
The result is a green light for courts to scrutinise the reasons for industrial action and the proportionality of the form of industrial action to the issues in dispute.
VIKING
In the Viking case, the International Transport Workers' Federation and the Finnish Seaman's union called for industrial action following Viking's decision to "re-flag" its ship to operate under a "flag of convenience" in Estonia or Norway.
The "re-flagging" would have enabled Viking to avoid collective agreements with Finnish trade unions and to cut jobs and terms and conditions. Viking argued that its right to freedom of establishment under EU law was infringed by the industrial action.
The ECJ did say that the right to take collective industrial action is "fundamental" and of "overriding public importance".
But it then went on to say that industrial action represented a restriction on the right of freedom of establishment of an employer in another member state. A trade union would have to be able to justify that restriction by showing that the industrial action pursued a legitimate aim and was justified by overriding reasons of public interest.
The aim of protecting jobs and terms and conditions may be legitimate when those jobs and terms and conditions are "under threat", as judged by the court. The industrial action must also be "suitable" for achieving the objective, having regard, for example, to other means of achieving that objective at the union's disposal.
LAVAL
In the Laval case, Swedish construction unions organised industrial action where a Latvian company posted Latvian construction workers to build a school in Sweden, but refused to sign up to collective agreement on pay, holiday and other terms and insurance arrangements applicable in the industry in Sweden.
Have supposedly recognised the "fundamental" right of a union to take industrial, the ECJ found that the industrial action represented a restriction on the employer's freedom of provision of services in another state.
Again, that restriction on the employer's freedom had to be justified as acceptable by the union showing that it pursued a legitimate aim and was justified for overriding reasons of public interest.
MINIMUM STANDARDS
But, going further than the Viking judgment, the ECJ found the industrial action to be unjustifiable, largely because the demands made by the union exceeded the level of minimum protection guaranteed by the Posted Workers Directive.
Both cases have an international dimension which may not be of immediate and direct relevance to industrial action in the UK.
The EC law rights relied upon by the two employers may not be in scope in the industrial disputes in the UK.
But the ECJ's declared recognition of the right to take industrial action as "fundamental" is misleading.
In my view, the judgments are absurd. It is ludicrous to subvert the so-called "fundamental" right to strike to the employer's business interests.
By giving more or less equal status to the right to take industrial action and employers' EU law business interests, the ECJ is encouraging scrutiny of the reasons for industrial action, and the form which it takes.
The ECJ is apparently prepared to impose its own judgment as to whether the reasons for industrial action, and its form, are justified. This is, in fact, an even more restrictive approach to industrial action than the current UK law.
In the UK currently, the union simply has to show that the reason for the industrial action is a trade dispute, which may be over relatively wide-ranging subjects such as terms and conditions of employment, redundancies and machinery for negotiation and consultation. Provided that the definition of a trade dispute is satisfied, there is no opportunity for the employer, under UK law, to question the scale and form of industrial action subsequently called.
I am not at all confident that we can find refuge in the European Charter of Fundamental Rights signed in Lisbon in December, even ignoring any special arrangements applicable to the UK.
The right to take industrial action set out in Article 28 is significantly diluted by the subsequent explanation in Declaration 12 that the limitations to be imposed on industrial action can be decided by member states.
My concern is that anti-trade union legislators will seize upon the Viking and Laval judgments and introduce yet more restrictions on the right to take industrial action onto the UK statute books, in line with the ECJ judgments, but diametrically opposed to the UK's international obligations under ILO Conventions.
We must all do all that we can to prevent these further restrictions being imported into the UK, as well as opposing the straitjacket which trade unions already find themselves in when they attempt to organise industrial action.
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