LIFE ON THE OCEAN WAVE

In a case that goes to the heart of the right of unions to organize collectively, the Advocate General of the European Court of Justice (ECJ) has said that, in his opinion, unions have a limited right to do so.

He said that as long as their aim is to protect the workers in the company, then they can take collective action to stop the company from relocating from one member state to another.

The case – International Transport Workers’ Federation and anor v Viking Line APB and anor – hinges on the actions of Viking Line, a Finnish passenger ferry operator, which decided to reflag one of its boats so that it could employ an eastern European crew on lower pay than the existing Finnish crew.

The ITF asked all its affiliates not to negotiate with Viking in support of its general policy to eliminate flags of convenience. The union then threatened industrial action, following which the company claimed it was restricting their right to relocate to another member state under article 43 of the EC treaty.

The unions, however, argued that they also had rights. In this case, to take action to preserve jobs recognized by Title X1 of the EC treaty and article 136.

The Advocate General has now recommended that the ECJ comes to the following decision when it considers the case shortly. He said that:

  • Just because a trade union wants to take collective action which happens to support EU social policy objectives, does not exempt it from complying with article 43
  • Equally, however, article 43 does not stop a trade union from taking collective action that restricts a company from trying to relocate to another member state, if its aim is to protect the workers of that company. It is up to the national court to decide whether their action is in accordance with their domestic law 
  • Article 43 only precludes a coordinated policy of collective action by a trade union if it has the effect of “partitioning the labour market” and stopping workers from being hired from certain member states so as to protect the jobs of workers in other member states.

 

We will look at the case in more detail in the next issue of LELR.