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

Cross-border social dialogue and agreements
An “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.
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