There has been considerable concern expressed regarding the employment rights that British workers would lose by virtue of Brexit. But this is not straightforwardly the case in respect of collective labour rights. Although European Union (EU) directives offer some protection of collective labour rights, national trade union freedoms regarding collective action have arguably been undermined (rather than bolstered) by EU hard and soft law. This means that the worker and trade union case for resisting Brexit remains complicated. While the over-arching aim is to stay in the EU for the sake of many individual and some collective worker entitlements, reform remains on the agenda.
Significant collective labour rights could be lost should Brexit occur and the UK remove itself from the established social pillar of legislation established under EU law. EU directives protect information and consultation rights concerning redundancies and transfers of undertakings, as well as provide for collective representation through European works councils and in European companies. Further, collective agreements may shape the domestic application of EU norms such as working time or provide the basis for entitlements at work such as those for posted workers or workers taking parental leave. However, this is not the only possible narrative regarding collective labour rights in the EU. (more…)
In the Laval case (C-341/05), the capacity for minimum wages (and other work-related benefits) to be set for posted workers by collective bargaining by trade unions in the host State was cast into doubt. Collective bargaining (and the collective action that generated such bargaining) was considered to be too unpredictable in terms of effect and outcome, creating an unjustifiable barrier for the free movement of service providers. It was only in the case of ‘social dumping’, a nebulous term of uncertain reach, that collective action aimed at conclusion of a collective agreement could be permitted in respect of a particular group of posted workers. Instead, the Court relied on Article 3(1) of the Posting of Workers Directive 96/71/EC (PWD), which envisages only the setting of minimum standards in relation to certain matters. This may be done by ‘law, regulation or administrative provision’ but also by ‘collective agreements or arbitration awards which have been declared universally applicable…’ in accordance with Article 3(8) insofar as they concern’ activities listed in the Annex largely pertaining to the construction industry. EU States may also take the option to give such legal effect to universally applicable collective agreements in other sectors in accordance with Article 3(10). Through this prescriptive treatment of the appropriate limits of collective bargaining, what had been seen by some as a ‘floor of rights’ in PWD came to be a ‘ceiling’. If the national measures taken in respect of protection of the rights of posted workers did not fit within the ambit of the precise terms set out in the PWD, then they were impermissible, despite the apparent scope in Article 3(7) for a more generous interpretation of the Directive ‘more favourable to workers’. (more…)