Strikes and the question of fairness - Guardian letters

Two letters from yesterday's Guardian which set out the arguments against the ECJ Judgements and the way the employers are exploiting the Posted Workers Directive.

Strikes and the question of fairness
The Guardian, Tuesday 3 February 2009

Commentators dismissing wildcat strikes as protectionist and xenophobic might be interested to note that union leaders throughout the EU have been discussing what action should be taken against the posted workers directive [a posted worker carries out work for a limited period in another EU country - the worker pays tax and social security in their country of origin] and European court judgments in the Laval, Viking and Rüffert cases for the last two years (Ministers to look at 'distorted' EU employment law, 2 February).

Today, for example, unions and the SPD are meeting in Berlin to discuss possible action, including a request to the German constitutional court to cease to apply European law.

Article 39 of the EU treaty guarantees movement of workers throughout Europe and no union leader has a problem with it. Article 49 and the directive, by contrast, allows firms to move their workers as a part of a service agreement and herein lies the rub: the European court of justice has confirmed that, whereas workers under Article 39 will be subject to all of the labour conditions of the host country, service providers under Article 49 may bring their own labour regimes with them.

The only minimum requirement that may be applied by a host state is minimum wage and health and safety regulation; collective bargaining agreements are deemed to be a potential barrier to trade. Likewise, strikes seeking to enforce collective bargaining agreements must be "proportional". In effect, this entails the dismantling of national labour regimes established in the post-war period. When we see barges full of accountants, journalists and politicians established on the Thames in order to provide more cheaply for our white-collar labour needs, will our chattering classes wake up and realise that this is not protectionism, but rather a fight for the soul of the European social state?
Michelle Everson
Professor of European law, Birkbeck College, University of London

There is growing confusion as to exactly why European law is at the heart of the current wave of unofficial disputes. The fact is, that even if Total had given guarantees that it will not exclude UK workers, or undercut UK conditions, the recent European court judgments in the Laval, Viking and Rüffert cases have thrown doubt on how such companies will behave in the future.

UK and EU trade unions and Socialist Group MEPs are concerned that the ECJ has interpreted European employment law, including the posted workers directive, as giving a higher priority to the freedom of capital movements over the rights of both UK and EU workers in the UK to work under settled UK collective agreements, wages and conditions.

These judgments are, in our view, getting the balance badly wrong. Free movement of workers is intrinsic to the idea of the EU, and protectionism is wrong. But if current European law and its impact on current disputes and major construction projects is to be fair to UK, and non-UK workers alike, these interpretations of European employment law must be reviewed urgently.

There are some who want to see the problem as one of the free movement of workers, created by the EU, turning sour in the midst of recession - or worse, as we have seen with the BNP response. In fact, it is a growing imbalance, exacerbated by recession, in the way workers are posted, that lies at the heart of the current problems.
Claude Moraes MEP
Labour, London