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Furthermore, in the Vaxholm case, the right to strike is superseded where an employer complains that the union is seeking terms and conditions in excess of the minimum provided by the Posted Workers Directive.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