Far from gifting rights to British workers, the EU has systematically undermined the rights workers won for themselves in domestic struggles.
Professor Mary Davis is a labour historian. Active in the labour movement her whole working life, she received the TUC’s Women’s Gold Badge for services to trade unionism in 2010
Cross-posted from The Full Brexit
We at Brave New Europe don’t take a position on Brexit. While we recognise that many dark and odious forces lay behind the Brexit vote, and that the process will inflict significant economic damage on many people, we also know that European institutions and policies typically reflect a strong neoliberal slant – and we launched this project to oppose and change this. We have sympathy with the anger against European institutions – but we also believe in the principle of European cross-border co-operation and co-ordination in many areas. Reflecting this complex reality, we will host both pro-Brexit and pro-Remain articles.
The defence of workers’ rights is the main pro-Remain argument used by the Trades Union Congress (TUC), all but three affiliated trade unions (TUs), and the newly formed Left Against Brexit (Another Europe is Possible). Their argument is flawed for the following reasons:
It is based on the false assumption that the EU protects workers’ rights whilst at the same time over estimating the limited protections enacted.
It elevates and relies on the legal system rather than collective bargaining by workers organised in trade unions
It displays an ignorance of trade union history and in so doing undermines the role of organised workers to win hard fought improvement in wages and living standards.
It ignores the anti-trade union rulings of the European Court of Justice (ECJ), based, as it is, on the palpable pro-employer nature of the EU itself.
The TU leadership’s enchantment with the EU stems from now shattered myth of “social Europe” propounded by Jacques Delors at the TUC Congress 1988 (see #Analysis #7 – Why Does the British Left Love the EU?). The Lisbon Programme of 2000 effectively undermined any promises of the Delors agenda by insisting on “flexicurity”: more precarious work, supported by a social security “safety net”. The Lisbon Treaty of 2008, following the financial crash, reversed “social Europe” completely by undermining legal basis of workers’ right to employment contracts and negotiated collective agreements. This, coupled with the privatisation of public services, has clearly privileged the power of capital as being the dominant EU “freedom”. The protection of business interests has been rigorously backed by a succession of ECJ rulings (see below).
Nevertheless, the “left Remainers” still cling on. Although they acknowledge that the EU Withdrawal Act 2018 will transpose directly-applicable already-existing EU law into UK law, including all workers’ rights found in EU law, this is not enough for them. They argue that this leaves out some protections “granted” by the EU. In practice such concessions are pitifully few and are shot through with loopholes.
The most important EU provision cited by the Remainers is the Working Time Directive 2003 which Theresa May has not ruled out transposing into UK law, although the Tories dislike it. The Directive gives workers rights to daily and weekly rest, a maximum weekly working time, and a minimum of four weeks paid annual leave. However, employees who want, or are pressured, to do so can simply sign a written opt-out. In 1998 the Labour Government passed The Working Time Regulations – a slightly improved version of the EU Directive. In fact most negotiated collective agreements in the UK give workers a much better deal: a maximum 40 hour week, a demand championed by the labour movement since the 1880s.
The Temporary Agency Workers Directive 2008 is another Remainer focus. It states that agency workers should receive the same treatment as workers employed directly by a company. Of course, this is an important right, but it has been recognised more in its breach than observance. This is because employers’ pursuit of profit has consistently driven down employment conditions, resulting in the prevalence of the gig economy, zero hours contracts and bogus “self-employment”. EU regulations are not some kind of magical safeguard; as with all aspects of employment law, their effectiveness is dependent on the strength of organised labour, which provides the confidence and resources for workers to fight back.
The other “safeguard” that Remainers cite as being voided by Brexit is equalities legislation. This is the weakest of their arguments. All of our equalities legislation, especially for women, has been enacted in the UK as a result of determined campaigning; it has not been gifted to us by or via the EU. The strikes of women workers for equal pay and equal treatment have a long history, the most famous in recent times being 1968 Ford Dagenham and 1976 Trico women’s strikes. Such actions and consistent pressure resulted in 1970 Equal Pay Act, 1975 Sex Discrimination Act, 1984 Equal Value amendment and 2010 Equality Act. None of these came from the EU.
Almost all progressive labour legislation has been fought for and won domestically, especially when the labour movement was strong, as in the 1970s. It is no accident that during this decade we saw not only 1970 Equal Pay Act but also the Trade Union and Relations Act (1974), the Health and Safety at Work Act (1974), the Employment Protection Act (1975), the Sex Discrimination Act (1975), and the Race Relations Act (1976).
The left Remainers’ position is not only ignorant of the history of labour rights in the UK, but shows that they have no faith in the capacity of the left to convince the British people of the need for them. If the British government were to repeal workers’ rights that currently enjoy legal protections, it would be accountable to the electorate for its actions. Such an attack could be challenged by a political opposition committed to abolishing all anti-trade union legislation and freeing the labour movement to fight to extend workers’ rights and reverse EU damage to them. However, left Remainers seem to believe that workers’ rights can be guaranteed not by building a strong democratic and trade union movement at home, but by relying on EU law. A closer look at EU law shows that the reverse is true.
What has weakened our ability to enhance workers’ rights through collective agreement is not simply the weakness of the trade union movement. It is also thanks to the EU’s determination to act in the interests of national and international capital to enforce a “race to the bottom”. As the leading labour law barrister John Hendy QC puts it:
Enforcement of a collective agreement by taking industrial action against a business exercising one of the four freedoms is subject to stringent conditions which essentially make the human right to collective bargaining defer to the business right to enjoy an undistorted labour market in which it can bring workers from a low wage EU State to a high wage State, ignore collectively agreed terms there and pay instead the wages payable back home.
The so-called “free movement of labour” enshrined in EU treaty since 1957 has been used ruthlessly by transnational corporations to super-exploit migrant workers and employees “posted” from one country to another, where they can be employed on inferior terms and conditions to local workers. This large-scale, systematic abuse has been protected by a series of ECJ rulings derived from the EU Posted Workers Directive, the Services (“Bolkstein”) Directive and the Business Transfers Directive.
Indeed, recent ECJ rulings over recent years underline the anti-trade union imperatives of the EU, even when it undermines protections enacted by the EU itself. This is illustrated by the Alemo-Herron case of 2013, which nullified the UK’s Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE). The Claimants’ contracts of employment with the London Borough of Lewisham contained clauses to the effect that they would be entitled to the terms and conditions negotiated from time to time by the National Joint Council for local government. Due to takeovers, their employment then transferred twice. Under TUPE, these workers had the right to pay awards agreed by the NJC. However, their ultimate employer, Parkwood Leisure, refused to honour this, resulting in a legal battle, with the ECJ eventually siding with the employer. Thus the precedent for overriding TUPE was set, with the USDAW union therefore losing a similar case against Woolworths in 2015. The justification for breaking the EU’s own rules was based on Article 16 of the Charter of Fundamental Rights of the EU, which guarantees the employer’s right to conduct a business and not to be bound by agreement to which he was not a party.
The outcome of the notorious Viking case (2007) also saw the ECJ undermine workers’ rights. At stake here was the status of “posted” workers, i.e. employees hired in one EU jurisdiction but sent to work in another. The International Transport Workers Federation challenged the Finnish shipping company Viking Line ABP for attempting to register its vessels in Estonia and claim employees were “posted” from there, thereby evading collective agreements negotiated by Finnish trade unions. Viking sued the union in the British courts and the case was ultimately referred to the ECJ. The Court sided with Viking, claiming that any action against its manoeuvres would violates the company’s right to establish operations in any EU member state—the so-called “freedom of establishment”. Thus, industrial action to protect terms and conditions for workers brought from a low-wage EU State to a high-wage State was rendered unlawful. The consequence is that the “freedom” of movement for labour means a race to the bottom.
The Laval judgement (2007) further restricted the grounds on which industrial action could be taken, forcing Sweden to change its domestic law and making Swedish trade unions pay punitive damages. In the Ruffert case (2008), the ECJ ruled that the provincial government of Lower Saxony had no right to impose public procurement laws on a subcontractor employing “posted” workers on wages below the local minimum. A ruling against the state of Luxembourg in the same year further restricted the areas in which terms and conditions can be imposed by national law on companies using “posted” workers.
Thus, the EU has systematically undermined the collective rights of workers and their trade unions, whilst at the same time offering minimal protections. It therefore remains surprising and perplexing that trade unionists should still place their hopes on a chimera. Instead, we should exposing the real nature of the obstacles to advancement and resolve to strengthen our own organisations. This is the only way to challenge the depredations of capital and the state in order to ensure that workers’ rights are protected and enriched.
 John Hendy, “The terrible tale of the EU and Trade Union Rights”, Trade Unionists Against the EU, 2016.