Freedom, theirs and ours
A series of rulings in the European Court of Justice over the last few years has put workers’ right to strike in question. Legal uncertainty has affected the legality of withdrawal of labour where the dispute in question affects an employer established not in the country where the strike takes place, but in another member state of the European Union. The European Court of Justice (ECJ) has, in a number of rulings, shown that it places little value on the protection of the basic rights of working people within the EU internal market.
In the Viking case the company involved was seeking, through a re-registration in a ‘Flag of Convenience’ country, to replace a Finnish crew which had enjoyed decent negotiated pay and conditions, with Estonians on lower pay. Not surprisingly, the Finnish Seamen’s Union threatened to strike, but the company successfully argued at the ECJ that this would represent a disproportionate reaction. Although the Court stated that workers within the EU had a legal right to strike, it reserved to itself the right to decide when that right could be exercised.
The Laval case centred on a Latvian company employing Latvian building workers in Sweden and then expecting them to work on far lower rates than had been nationally agreed under Sweden’s long-established system of tripartite negotiations, where representatives of unions, employers and government fix rates for most trades. Again, the workers’ organisations struck. They also successfully restricted supplies of necessary materials to the site in question.
Having already decided that it could determine when a strike was acceptable, the ECJ now went further, ruling that this strike was not, because it interfered with what is known as ‘freedom of establishment’, basically the right of EU nationals to set up a business and then trade in any of the 27 member states. This right overrides any nationally negotiated agreements over wages and conditions.
The case known as ‘Rüffert’ concerned the construction of a prison in Germany. Again, a company from a member state with relatively low wages and relatively unfavourable conditions was hired to do the work, in this case subcontracted by a German firm. A cursory reading of EU law had, prior to this, led many to believe that a measure known as the Posting of Workers Directive allowed minimum rates to be fixed by collective bargaining. This was the case for the German court which ruled that the Polish employers were breaking the law in undercutting these going rates. But the directive and the broader legal framework of which it forms part turned out to be less than watertight, and the ECJ ruled in favour of the employers.
Finally, when the unelected European Commission objected to a measure by the elected government of Luxembourg which stated that its labour laws applied equally to foreigners employed in the country, the Court ruled in favour of the Commission and obliged Luxembourg to change its statutes to enable foreign workers to undercut those who are citizens of the country, who represent only six in every ten members of their tiny country’s labour force.
It seems odd that a body which has tried to foist an official European anthem and European sports teams on the at best indifferent and in fact increasingly hostile populations of its member states cannot understand that such divisive measures are hardly going to result in a warm, fluffy feeling of European identity.
The European Trade Union Confederation is a thoroughly incorporated body of the most collaborationist social democrats you could hope to meet. Nevertheless, it has complained about the increasingly hostile attitude the EU’s institutions have taken to working people’s rights as the fanatical drive for a single ‘internal market’ has gathered pace. The Commission promised to respond with a new measure.
What the Brussels executive has done, however, is to propose a ‘Council Regulation’, the term given to a piece of EU legislation which, once approved by the Council, the body which directly represents the governments of the member states, applies directly throughout the twenty-seven.
National parliaments are bypassed, and in this case even the European Parliament will have no right to propose amendments to the Council Regulation ’on the exercise of the right to take collective action within the context of the freedom of establishment and the freedom to provide services’. The text clearly prioritises the latter ‘freedoms’. A right recognised in numerous international treaties including the EU’s own Charter of Fundamental Rights is seen here as not a fundamental right at all, but rather an irritation, a potential limitation on the freedom of movement of capital and of services.
In a capitalist system the right to strike is all that stands between the ‘free worker’ and slavery. Its downgrading to a restriction on the right of establishment is part of a broader pattern in which, over the last four decades, the ‘rights’ of capital have been redefined as human rights, while those of labour have been seen increasingly as sectional interests. This is why the ‘market economy’ is now routinely coupled with ‘democracy’ and the ‘rule of law’ as an aspect of the drive by the ‘west’ – in other words the US and its friends on this side of the Atlantic – to spread ‘freedom’ throughout the globe.
Freedoms won under capitalism, often by men and women who put their lives on the line, are not to be undervalued. The open publication of Spectrezine and a host of websites and print sources is proof enough that they are far from meaningless.
That, however, applies only as far as the factory gates, the perimeter of the building site, or the entrance to increasingly factory-like office blocks. It applies up to the point where you reach the threshold of wherever you are employed, of every workplace in Europe and throughout the world.
Beyond that line, without the right to strike freedom becomes nothing but an empty word, and we are given over to tyranny.
Steve McGiffen is Spectrezine’s editor.