[Marxism] British Wildcat Strike Wave?

[Joonas Laine]

nada wrote:
> Good discussion. Obviously we have to wait for more European comrades to 
> chime in here. It is complex and not altogether clear.

There's three recent EC court ruling that might be useful to bring up 
here: Viking Line (Finland/Estonia), Laval (Sweden/Latvia), and Rüffert 
(Germany/Poland).

The following text is from European Trade Union Institute's website, 
which also provides links to the actual court rulings.
http://www.etui-rehs.org/en/Headline-issues/Viking-Laval-Rueffert-Luxembourg

My comments are in brackets, and all emphasis is mine.

---

Viking Line versus the Finnish Seamen's Union

The shipping line Viking runs ferry services between Finland and Estonia 
under the Finnish flag. The company’s management decided to re-flag 
their ferries - using the Estonian flag. The decision was also taken to 
employ Estonian labour in order to take advantage of the fact that wages 
are lower in Estonia. In response, the Finnish Seamen’s Union (FSU) 
warned the company Viking that they might take collective action to stop 
the re-flagging process. To avoid the danger of being undercut, it also 
asked the International Transport Workers’ Federation (ITF) under its 
“Flag of conveniences campaign” to ask their members not to start 
negotiations with Viking unless they were based in Finland. According to 
this campaign, the ITF affiliates agreed that only trade unions 
established in the state of beneficial ownership should have the right 
to conclude collective agreements covering the vessel concerned.

The judgement

The ECJ recognised the right to take collective action, including the 
right to strike as a fundamental right which forms an integral part of 
the general principles of Community law. *Nevertheless, this right might 
be restricted*, as reaffirmed by Article 28 of the Charter of 
Fundamental Rights of the European Union which states that it is to be 
protected in accordance with Community law and national law and 
practices. *Furthermore the exercise of this right may be subject to 
certain restrictions.* [..]

The ECJ sees the right of trade unions to take collective action as a 
restriction on the freedom to provide services or the freedom of 
establishment. *Collective action must be justified. It must have a 
legitimate aim, respond to overriding reasons of public interest* and be 
suitable for securing the attainment of the objective pursued and *not 
go beyond what is necessary in order to attain it*. Those conditions are 
often called the proportionality test, which is now introduced by the 
court with respect to the trade union rights. [..]

Laval versus the Swedish Construction Workers Union

The Latvian company Laval won the tender for construction work at a 
school in the town of Vaxholm. They posted their workers from Latvia to 
Sweden to fulfil the contract. As is standard practice in the Swedish 
industrial relations system the Swedish unions started negotiations with 
Laval in order to sign a collective agreement with regard to wages and 
other working conditions, which are always laid down by negotiation on a 
case-by-case basis. As Laval did not want to pay the wages requested, 
they signed a collective agreement in Latvia. Following the failure of 
the Swedish negotiations, the Swedish trade unions took action by 
blockading the construction site. Solidarity actions then followed from 
the electricians trade unions."

The judgement

[In this case the ECJ also applied the "proportionality test", and found 
that in this case the measures were not "proportionate". Perhaps one 
reason was that the Laval's Swedish subsidiary Baltic Bygg which was 
blockaded, went bankrupt because of the blockade, but formally the court 
says the action could not be justified due to an incorrect 
implementation of the posting of workers Directive. JL]

Most of the judgement concerns the interpretation of this Directive. The 
ECJ is of the opinion that *negotiation at the place of work, on a 
case-by-case basis*, when minimum rates of pay are not determined in 
accordance with one of the means provided for by the posting of workers 
directive, *are not permissible* under the Directive. The Court put into 
question the flexibility of the Swedish collective bargaining system, 
emphasising *the alleged lack of certainty for business unable to 
ascertain in advance the conditions they would have to guarantee to 
their posted workers.*

The objective of the Posting of Workers Directive is to lay down a set 
of mandatory rules for minimum protection to be observed in the host 
country by employers who post workers to perform temporary work in the 
territory of a Member State where the services are provided. The ECJ now 
judges that the Directive limits the level of protection guaranteed to 
posted workers. *Neither the host Member State nor the social partners 
can ask for more favourable conditions, which go beyond the mandatory 
rules for minimum protection in the Directive.*

Rüffert versus Lower Saxony

A German company won the tender with the Land Niedersachsen which 
involved construction work in a prison. The public procurement law of 
that Land states that “the contracts for building services shall be 
awarded only to undertakings which, when lodging a tender, undertake in 
writing to pay their employees, when performing those services, at least 
the remuneration prescribed by the collective agreement in the place 
where those services are performed …”. The German company subcontracted 
the work to a Polish company and it turned out that the 53 Polish 
workers actually only earned 46,57 % of their German colleagues on the 
site. Therefore the Land Niedersachsen applied the contractual penalties 
and annulled the contract and imposed financial penalties on the company.

The judgement

Again the ECJ produced a judgement along the lines of the Posting of 
Workers Directive. *In its view the situation in Niedersachsen did not 
fulfil the criteria to fix pay as set out in the Directive as the law 
does not itself fix any minimum rate of pay and the collective agreement 
in question had not been declared universally applicable.* [..]

---

Here begin my further comments, especially on the Swedish case, because 
it is interesting from the Finnish point of view. The collective 
agreement systems in these two countries are quite similar, with high 
organisational densities in both countries (70-80%). However, one 
crucial difference seems to be that while Swedish law does not guarantee 
universal applicability of collective agreements (the ECJ refers to this 
fact in its verdict, paragraph 5), whereas Finland does.

In Sweden, if I've understood it correctly, the unions negotiate with 
capitalists (perhaps also with capitalists' organisations) to get a 
collective agreement. The resulting agreement is binding only to the 
members of the signatory organisations, i.e. the union members and the 
individual capitalist or the capitalists' organisation.

If you're not a member of the union, the capitalist doesn't have to 
apply the terms of the deal to you. Also capitalists not party to any 
such agreement can apply whichever terms (within legislation, of course) 
to workers they hire, whether they are union members or not. If I have 
understood correctly, the whole system in Sweden hinges crucially on the 
two parties, and the agreement they make that are binding re their 
members, but not others.

In Finland this is different. Let's take the Metal Workers Union (MWU) 
and the corresponding capitalist front organisation, Technology 
Industries (TI). They make a collective agreement, and if the TI member 
organisations are estimated to employ more than half of the work force 
in the trade, the collective agreement they make becomes universally 
applicable. The law provides for this, as is required by the EU 
Directive 96/71, article 3 on post workers in order for it to apply to 
posted workers as well.

The Finnish system means that also all the small capitalists who are not 
members of the TI (or some other deal-making capitalist front) are bound 
by the agreement they have not been negotiating, and they are of course 
furious about this. It also means that once the agreement is deemed 
universally applicable, it doesn't matter whether you are a member of a 
union or not; every capitalist has to apply the agreement's terms to 
you, just like to your workmate who is a union member and who's been 
paying union fees for years while you haven't.