CROSS-BORDER SOCIAL DIALOGUE AND AGREEMENTS: An ...

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Implementation and monitoring of cross-border agreements – Bercusson Charter in proclaiming the existence of a fundamental right to take collective action protected by the Community legal order. 24 The ECJ delivered its judgement in Viking on 11 December 2007 (ECJ, 2007a) and in Laval on 18 December 2007 (ECJ, 2007b). In both cases the ECJ cites Article 28 of the EU Charter and proclaims: 25 … the right to take collective action must therefore be recognised as a fundamental right which forms an integral part of the general principles of Community law the observance of which the Court ensures … (ECJ, 2007a, para. 44; see also ECJ, 2007b, para. 91). In both Laval and Viking the ECJ affirms that protection of this fundamental right: … is a legitimate interest which, in principle, justifies a restriction of the obligations imposed by Community law, even under a fundamental freedom guaranteed by the Treaty, such as the free movement of goods … or freedom to provide services … (ECJ, 2007b, para. 93; ECJ, 2007a, para. 45). The ECJ reinforces this by adding: … it must be observed that the right to take collective action for the protection of workers is a legitimate interest which, in principle, justifies a restriction of one of the fundamental freedoms guaranteed by the Treaty … and that the protection of workers is one of the overriding reasons of public interest recognised by the Court (ECJ, 2007a, para. 77). 26 However, in both cases the ECJ qualifies these affirmations of the fundamental right to take collective action for the public interest in the protection of workers with the statement that: “[Its] exercise must be reconciled with the requirements relating to rights protected under the Treaty and in accordance with the principle of proportionality …” (ECJ, 2007b, para. 94; ECJ, 2007a, para. 46). 24 Advocate General Mengozzi, paras. 78; 142; Advocate General Maduro, para. 60. For a critical analysis of the opinions of the Advocates General, and proposals for resolving the issues at stake in Viking and Laval, see Bercusson (2007c). 25 The quotation in Viking refers to: “the right to take collective action, including the right to strike, must therefore be recognised…”. 26 In Laval, para. 107: “…it must be observed that, in principle, blockading action by a trade union of the host Member State which is aimed at ensuring that workers posted in the framework of a transnational provision of services have their terms and conditions of employment fixed at a certain level, falls within the objective of protecting workers”. 151
Cross-border social dialogue and agreements <strong>An</strong> “anti-social dumping principle” The judgements in Laval and Viking offer a variety of propositions aimed at assisting national courts to assess the “proportionality” of collective action by workers and their organizations in relation to economic freedoms of employers. In the two cases before it, the ECJ offers guidance aimed at the specific threat of social dumping in the form of an “anti-social dumping principle” of proportionality. This emerges in most detail in the ECJ’s statements in Viking regarding the primary collective action of the FSU and the secondary collective action of the ITF. As regards the primary collective action of the FSU, the question concerns the public interest test of protection of workers which, says the ECJ: “would no longer be tenable if it were established that the jobs or conditions of employment at issue were not jeopardised or under serious threat” (ECJ, 2007a, para. 81). The ECJ then proceeds to provide indicators (but only by way of example: “in particular”) of what would establish “that the jobs or conditions of employment at issue were not jeopardised or under serious threat”. This would require an undertaking by the employer that was: … from a legal point of view, as binding as the terms of a collective agreement and if it was of such a nature as to provide a guarantee to the workers that the statutory provisions would be complied with and the terms of the collective agreement governing their working relationship maintained (ECJ, 2007a, para. 82; emphasis added). 27 The only way an employer can show there is no jeopardy or threat is to guarantee jobs and conditions of employment — otherwise, collective action is justifiable. In practice, this is a mandate for collective bargaining, as such a guarantee is the first trade union demand to be put forward. Failure to give the guarantee, to reach a collective agreement, so that jobs or conditions or employment are “not jeopardised or under serious threat”, thereby justifies collective action. Collective action will not be taken in practice if collective agreements are reached guaranteeing no jeopardy or threat to jobs and conditions of employment. 27 Note the parallel with the protection of workers under Council Directive 77/187 of 14 February, 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses, OJ L 61/26, as amended by Directive 98/50/EC of 29 June 1998, OJ L 201/88, consolidated in Directive 2001/23 of 12 March 2001, OJ L/82/16. The parallel is reinforced if “working relationship” includes the collective relationship with the trade union, as presumably it does as it is in a collective agreement. 152
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CROSS-BORDER SOCIAL DIALOGUE AND AG
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Published by the International Inst
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Cross-border social dialogue and ag
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Contributors Dominique Bé, an econ
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Contributors Nathan Lillie is Assis
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Acronyms BWI Building and Wood Work
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Introduction Konstantinos Papadakis
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Introduction - Papadakis each with
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Introduction - Papadakis above. Thi
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Introduction - Papadakis tices unde
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Introduction - Papadakis role of co
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Introduction - Papadakis veaux enje
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Chapter 1 International framework a
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International framework agreements:
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Chapter 3 International framework a
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International framework agreements
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The ILO Maritime Labour Convention,
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Chapter 9 A report on the European
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A report on the European Commission
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Appendix
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