TUC calls for urgent revision of EU posted workers directive

The annual conference of the Trades Union Congress, held in September 2009, voted for a resolution that criticised the UK’s application of the EU posted workers directive. The resolution calls for the urgent revision of UK law and practice and the EU directive itself, so that existing collective agreements are not undermined. However, it seems unlikely that the government as well as employer organisations will support such measures.

In September 2009, participants at the annual conference of the Trades Union Congress (TUC) voted to support a resolution proposed by Unite, the largest trade union in the United Kingdom (UK). The resolution criticises the EU Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and its application in the UK on the grounds that the legal framework has the effect of undermining collective agreements. The move follows the widespread industrial action in the engineering construction industry earlier in 2009. The action was linked to a dispute at the Lindsey Oil Refinery (LOR) over the use of posted workers and their allegedly inferior terms and conditions of employment (UK0902019I).

Key points of resolution

The resolution argues that the government needs to amend its implementation of the posted workers directive. In particular, it needs to take advantage of the provisions in the directive that allow national governments to introduce measures to extend the coverage of sectoral or national collective agreements.

This is a reference to the fact that, under UK law, posted workers are not guaranteed terms and conditions set by collective agreements, as there is no mechanism in this country for declaring collective agreements as universally applicable. The result is that only statutory employment conditions – such as the national minimum wage and the working time regulations – apply to posted workers. Moreover, the UK government has not taken up the alternative options under Article 3.8 of the directive, which requires that posted workers receive terms and conditions set by ‘generally applicable’ collective agreements or those concluded by the ‘most representative’ employer and trade union organisations. The British unions want the UK government to take up this option – particularly those operating in the relatively few sectors, mainly construction-related, where sectoral collective agreements exist.

The resolution calls for the reform of UK employment law and practice so that the directive does not undermine existing collective agreements; such reform should be supported by the development of procurement practices that promote labour, equality and environmental standards. It calls for the TUC to lobby the UK government to amend the terms of UK legislation implementing the posted workers directive and to seek the ‘urgent revision’ of the directive itself, ‘in order to maximise protection of collective agreements generally applied in UK industries’.

More broadly, the resolution urges the TUC to press for action by the International Labour Organization (ILO) to address the ‘undermining effect’ of a series of recent judgments by the European Court of Justice (ECJ) – notably the Viking case and the Laval case – on international standards concerning collective agreements and trade union freedoms that are enshrined in ILO Convention 87 and Convention 98.

Commentary

The use of posted workers is a sensitive topic in the UK at present. It is particularly resonant in the current economic downturn, reflecting concerns in some quarters that the operation of EU principles governing freedom of movement and freedom to provide services may be detrimental to the employment opportunities and terms and conditions of host-country workers.

The UK government has to date taken a ‘minimalist’ approach to implementation of the posted workers directive. The directive contains provisions enabling national governments to require that posted workers – in the construction sector and more widely – receive collectively bargained terms and conditions. However, the UK government did not take up these provisions when it made adjustments to UK law in response to the directive. As a result, trade unions are now urging the UK government to revise its implementation of the posted workers directive in order to underpin collectively agreed pay rates.

However, it seems highly unlikely that government ministers will want to reintroduce measures – which had previously been abolished in the 1980s – for extending collectively bargained terms and conditions to other companies and workers in the construction or any other sector. In February 2009, at the time of the dispute over the use of posted workers at LOR, the country’s Secretary of State for Business, Innovation and Skills, Lord Mandelson, indicated that he did not think it was reasonable to seek to change the law and that he was opposed to extending collectively bargained entitlements to all contractors and their employees. Employer organisations can also be expected to oppose such ‘protectionist’ measures.

At EU level, the European Trade Union Confederation (ETUC) supports a ‘social progress clause’. The latter would require that free movement principles contained in the EU treaty are interpreted in a manner that respects fundamental rights and, in particular, the right of trade unions to bargain collectively and to take industrial action.

Mark Hall, IRRU, University of Warwick