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Flexicurity is insecurity

“Absurd” and “ludicrous” is how leading trade union law firm Thompsons described recent European Court of Justice judgments in two test cases which claimed that strike action offended European Union rules.

According to Richard Arthur, head of trade union law at Thompsons, the cases – known as Viking and Vaxholm respectively – are far more restrictive than even the anti-union laws brought in by successive Tory governments in the 1980’s.

The first case involved Finnish ferry company Viking Line, which attempted to reflag one of its ships to Estonia and replace Finnish seafarers with cheaper Estonian labour.

Protesting against this clear social dumping, Finnish workers attempted to launch strike action. Viking then began legal proceedings and the European Court of Justice has sat on the case for over three years.

The Vaxholm case similarly began after Swedish trade unionists attempted to prevent Latvian firm Laval paying poverty wages to Latvian builders working in the Swedish town of Vaxholm.

The ECJ has now declared in both cases that EU rules on the free movement of goods, services, capital and labour gives private firms protection against collective action by trade unions. In other words an employers’ right to "freedom of establishment" trumps the right to strike.

Richard Arthur of Thompsons said that the ECJ rulings ran roughshod over trade union rights which have been almost universally recognised in numerous international treaties for many decades.

 “Tory anti-union legislation only restricted the right to strike by introducing stringent procedures in order to carry out industrial action.

“However, the European Court of Justice has now given itself the opportunity to scrutinize the legitimacy and the proportionality of any given dispute and the effect on the employer,” he said.

Furthermore, in the Vaxholm case, the right to strike is superseded where an employer complains that the union is seeking terms and conditions in excess of the minimum provided by the Posted Workers Directive.

This highlights the fact that the Posted Workers Directive is designed to remove obstacles to the freedom of firms to provide services abroad - not to provide social protection for workers. In fact, it is a mechanism for exporting low pay to other member states.

You may say, well at least the right to strike is enshrined in the EU Charter of Fundamental Rights, right? Wrong.

Article 28 of the Charter, appended to the renamed EU constitution, says workers may ‘take collective action to defend their interests, including strike action’.

But an Explanation in Declaration 12 also qualifies this by stating: ‘The limits for the exercise of collective action, including strike action, come under national laws and practices’.

Moreover, the entire Charter can be suspended at any time to protect the ‘general interests’ of the EU or, of course, if it interferes with ‘the smooth operation of the market’.

This means that draconian labour legislation already existing in a member state can be preserved while, on the other hand, Brussels can limit trade union rights in order to satisfy ‘objectives of general interest’ of the EU.

The renamed EU Constitution provides that the Charter of Fundamental Rights would be made binding in EU law and become superior to national law in the event of any conflict.

On December 13 2007 EU leaders rubberstamped the renamed EU constitution to great fanfare in Portugal while over a quarter of a million Portuguese workers protested outside to almost no media interest.

One of the reasons for the protest was the fact that officially and for the first time, the term ‘flexicurity’ and its basic principles were also adopted by EU leaders in Lisbon.

So what is ‘flexicurity’ and why has it upset so many trade unionists?

Well the first thing to say is that there is no such word. It has been made up by the European commission to suggest that if a worker accepts flexibility, job security at work will follow.

That is complete contradiction, of course. As Unite general secretary Derek Simpson told The Times last year, flexicurity “hides behind the language of equality to propose measures to force exploitation and insecurity on to every worker in Europe”.

In essence it is a policy designed to remove collective bargaining rights from workers in order to facilitate further EU integration and deepen the so-called internal market.

A passage from Lewis Carroll's book, "Through the Looking-Glass And What Alice Found There," comes to mind:

"'When I use a word it means just what I choose it to mean, neither more nor less,” says Humpty Dumpty.

“The question is,' replies Alice, “whether you can make words mean so many different things”.

“The question is,” replies Humpty Dumpty, “which is to be master – that's all”.

Clearly the EU – and their judges – operate with this mentality, considering themselves the "master" of words and a law unto themselves.

However, this has not gone unnoticed by labour movements across Europe

The Cypriot Federation of Labour the PEO, the oldest and biggest trade union in Cyprus , has said that ‘flexicurity’ represents “a very dangerous attempt to completely smash existing labour laws and gains” increasing the trend towards “casual uninsured jobs”.

“The changes being sought are aimed in reality at easing labour protection rules, the abolition of full and steady employment as well as the marginalisation of collective agreements,” it said.

Ultimately, flexicurity, EU court judgments and EU rules on ‘free movement’ – all enshrined in the renamed EU constitution – represent the most fundamental attack on trade union rights since the end of World War Two.

In order to achieve this, the principles of effective and democratic trade unionism are being actively undermined by EU institutions and those who promote its policies and agenda.

In order to resist it, we should be loudly demanding the referendum on the constitution promised by the government at the last election.

Brian Denny

TUAEUC has produced a new pamphlet outlining why trade unionists should demand a referendum on the renamed EU Constitution. It has also produced a document arguing the democratic case against the EU Constitutionand copies of both are available free on request