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Guest Post: Workers’ Rights under Lisbon

rodericWe are very pleased to welcome this guest post from Roderic O’Gorman (left) on the implication of the Lisbon Treaty for workers’ rights. For information on Roderic, see his profile on the ‘Guest Contributors’ page. Although-as some readers may know-Roderic is an active member of the Green Party, this post is submitted strictly from a personal and academic perspective.

The protection of workers’ rights in the EU and the implications that the Lisbon Treaty will have for this is an issue that has received considerable attention over the course of the referendum campaign. Particular concern has been expressed around a number of judgments given by the European Court of Justice (ECJ) over the past two years dealing with workers rights. Three of these cases – Laval, Ruffert and Commission v. Luxembourg concern the Posting of Workers Directive (PW Directive). This directive sets out the rules and conditions whereby a company in Member State A can send some of its employees to work in Member State B.

Article 3 of the PW Directive makes it clear that if a minimum wage is set out in national legislation or in collective agreements which are binding across the State, then workers posted to that country from another Member State must be paid that minimum wage. The same applies to maximum working hours, minimum paid holiday leave, health and safety conditions and a number of other topics. However, in Laval and Ruffert, the national legislation (in Sweden and Germany respectively) did not clearly set out the minimum wage and the collective agreements in question were of a localised nature. As the Member States had not changed their national legislation to meet the requirements of the PW Directive, the unions in both cases were not able to rely on the national minimum wage against the foreign company bringing in its own workers. Action is already being taken in Sweden to amend the national legislation to clarify the national minimum wage and ensure this situation doesn’t arise again.

Another issue that has come up in case law concerns trade union collective action and the right to strike. At present, nowhere in the EC or EU Treaties is a right to strike protected. If Lisbon is passed, it will give legal effect to the Charter of Fundamental Rights. Article 28 of the Charter enshrines workers rights to take collective action including the right to strike.

The status of the right to strike came up in the Viking and Laval cases over the last two years. In both of these cases the ECJ balanced the rights of workers against the right of companies to establish or provide services in another Member State (these being part of the 4 fundamental economic freedoms guaranteed under the Treaties). While Art 28 of the Charter was mentioned briefly in both cases (along with other international agreements in which the right to strike is listed), the ECJ could not actually apply it to the cases as the Charter does not yet have legal effect.

As such, the ECJ was balancing the very strong protection of the rights of companies against the current much weaker position of workers within the Treaties. This disparity can be seen in paragraph 105 of the Laval judgment. Unsurprisingly, trade unions across the Member States were not happy with the approach adopted by the Court. However, I would strongly argue that if Lisbon is passed and the Charter is given legal effect, its strong protection of the rights of workers will enable the Court to be much more vigorous in protecting workers rights when these come into conflict with the economic rights of companies.

Looking past the Charter, Lisbon sets out a range of new objectives for the European Union in the new Art 3(3) TEU. It speaks of creating “a highly competitive social market economy, aiming at full employment and social protection” along with “combat[ing] social exclusion and discrimination” and “promot[ing] social justice and protection”. This is the strongest statement of social values that has ever been seen in the Treaties and will also have to be applied by the ECJ.

Finally, the Citizens Initiative, which allows 1 million citizens sign a petition calling on the Commission to propose a law in a particular area, will be of real benefit to trade unions. As these organisations often have links that stretch across a number of countries, they are well placed to organise a Citizens Initiative on important issues. For example, if trade unions are not happy with the current interpretation of the Posting of Workers Directive, the Citizens Initiative will give them an opportunity to put direct suggestions to the Commission on how to reform it.


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The protection of workers’ rights in the EU and the implications that the Lisbon Treaty will have for this is an issue that has received considerable attention over the course of the referendum campaign.

Particular concern has been expressed around a number of judgments given by the European Court of Justice (ECJ) over the past two years dealing with workers rights. Three of these cases – Laval, Ruffert and Commission v. Luxembourg concern the Posting of Workers Directive (PW Directive). This directive sets out the rules and conditions whereby a company in Member State A can send some of its employees to work in Member State B.

Article 3 of the PW Directive makes it clear that if a minimum wage is set out in national legislation or in collective agreements which are binding across the State, then workers posted to that country from another Member State must be paid that minimum wage. The same applies to maximum working hours, minimum paid holiday leave, health and safety conditions and a number of other topics. However, in Laval and Ruffert, the national legislation (in Sweden and Germany respectively) did not clearly set out the minimum wage and the collective agreements in question were of a localised nature. As the Member States had not changed their national legislation to meet the requirements of the PW Directive, the unions in both cases were not able to rely on the national minimum wage against the foreign company bringing in its own workers. Action is already being taken in Sweden to amend the national legislation to clarify the national minimum wage and ensure this situation doesn’t arise again.

Another issue that has come up in case law concerns trade union collective action and the right to strike. At present, nowhere in the EC or EU Treaties is a right to strike protected. If Lisbon is passed, it will give legal effect to the Charter of Fundamental Rights. Article 28 of the Charter enshrines workers rights to take collective action including the right to strike.

The status of the right to strike came up in the Viking and Laval cases over the last two years.

In both of these cases the ECJ balanced the rights of workers against the right of companies to establish or provide services in another Member State (these being part of the 4 fundamental economic freedoms guaranteed under the Treaties). While Art 28 of the Charter was mentioned briefly in both cases (along with other international agreements in which the right to strike is listed), the ECJ could not actually apply it to the cases as the Charter does not yet have legal effect.

As such, the ECJ was balancing the very strong protection of the rights of companies against the current much weaker position of workers within the Treaties. This disparity can be seen in paragraph 105 of the Laval judgment. Unsurprisingly, trade unions across the Member States were not happy with the approach adopted by the Court. However, I would strongly argue that if Lisbon is passed and the Charter is given legal effect, its strong protection of the rights of workers will enable the Court to be much more vigorous in protecting workers rights when these come into conflict with the economic rights of companies.

Looking past the Charter, Lisbon sets out a range of new objectives for the European Union in the new Art 3(3) TEU. It speaks of creating “a highly competitive social market economy, aiming at full employment and social protection” along with “combat[ing] social exclusion and discrimination” and “promot[ing] social justice and protection”. This is the strongest statement of social values that has ever been seen in the Treaties and will also have to be applied by the ECJ.

Finally, the Citizens Initiative, which allows 1 million citizens sign a petition calling on the Commission to propose a law in a particular area, will be of real benefit to trade unions. As these organisations often have links that stretch across a number of countries, they are well placed to organise a Citizens Initiative on important issues. For example, if trade unions are not happy with the current interpretation of the Posting of Workers Directive, the Citizens Initiative will give them an opportunity to put direct suggestions to the Commission on how to reform it.

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