Protectionism will jeopardise more jobs

The outcry over British jobs going to foreign workers is understandable if indeed the Italian company that won the tender for work at the Total oil refinery has a discriminatory policy (which would be illegal under European law) not to employ British workers.

This claim must be investigated urgently, as must allegations that the company concerned is circumventing British labour standards by undercutting pay, conditions and health and safety standards, which would also be illegal under European law (apart from one major loophole, of which more below).

But it cannot be claimed that only British companies should have been able to tender, or that the company should be obliged to take on only British citizens. As one national newspaper reminded us today, there are two million British citizens living and working in the rest of the EU, but only one million people from other EU countries living in the UK. A protectionist or discriminatory policy would rebound at put those British jobs at risk.

What can be and should be investigated is the wider claim that rulings from the European Court of Justice have created a loophole, underminding the intention of EU legislation that was intended to ensure that companies cannot circumvent national rules about pay and working conditions by bringing in employees from abroad employed under less stringent rules of another country. Foreign contractors who employ their own staff on a temporary project are bound by the EU's "posted workers" directive (not, as the Daily Telegraph said, the "postal workers directive!), which stipulates that the foreign employees must enjoy the same rights as local workers, not undercut them. I have blogged before about how certain court rulings have undermined one aspect of these protections, and I have also pointed out how small changes in the law can rectify the problem.

The expression "British jobs for British workers" means making sure that British workers are able to access good employment opportunities, equipped with the right qualifications, and without any discrimination against them. To take it further and argue that jobs should only be given to nationals of the country concerned would have dangerous consequences (e.g. you must be German to work in Germany, you must be Irish to work in Ireland, Spanish to work in Spain, etc) that would ultimately jeopardise British and other workers.

Working Time saga set to continue

So, the saga of working time will continue (see my blog of monday).

Parliament today amended, instead of approved, Council's position, which means no legislation has been adopted. Instead, negotiations continue to seek a solution acceptable to both Parliament and Council.

In Britain, the trade unions, doctors, the BMA and others are happy with the amendments adopted by Parliament, while the government, the CBI and many businesses are not. However, all must now focus on seeking the agreement necessary for legislation to be adopted, with the give and take that that implies.

Equal rights for Temporary Agency Workers!

Today the European Parliament adopted the Temporary Agency Workers directive that will, finally, give equal treatment at work to some of our most vulnerable workers.

This directive has been a long time coming. It has now been six years since the Commission first brought forward proposals for a Temporary Agency Workers directive. Under this directive, temporary workers will be given the same rights to pay, hours and holidays as their full-time colleagues. The number of temporary agency workers in the public and private sectors of the UK labour market has greatly increased in recent years. Temporary agency work contributes to a dynamic and flexible modern economy and can often be a bridge for long term unemployed to get back in the labour market. But agency workers should not be treated as second-class workers and agencies should not be able to distort the labour market by undercutting the wages and conditions of other workers.

Following the directive's first reading in the European Parliament, which approved it with the support of Labour MEPs, TAW was blocked in Council, where the main concerns have been over the length of the qualifying period before equal treatment rights apply. In May, the UK government reached an agreement with the unions and the CBI that would give equal treatment after 12 weeks, allowing a deal to be reached among European Employment ministers in the Council of Ministers in June.

The Parliament, in accepting this compromise, has now ensured that this directive will enter into law very swiftly. All of which is great news for the estimated 1.3 million British workers who will be protected by this legislation and a demonstration that our European common market is a social market that combines protection of workers' rights with flexible labour markets.

Debating Viking and Laval - why the ECJ rulings show we need to change the law to guarantee workers' rights

The Parliament today debated a report by Swedish Social Democrat Jan Andersson, looking at the effects of the recent rulings, in particular - Viking, Laval, Rüffert and Luxembourg - by the European Court of Justice. These cases have, rightly, caused a great deal of consternation amongst trade unions in that the court seems to have given a higher priority to the freedom to provide services to the right to join a trade union, negotiate and enforce collective agreements and take industrial action.

For instance, in the “Laval” judgment of 18 December 2007, the ECJ ruled that a service provider from another Member State is not obliged to respect local collective agreements that aren’t legally obligatory on third parties. The answer is surely to give collective agreements recognition in national legislation, as is done in many countries. Then, any service provider from another Member State would be obliged by law to respect national collective agreements when providing services in the country in question.

In the Ruffert case, the Court accepted a national court ruling to overturn a measure requiring companies supplying a public sector institution to pay a minimum wage, on the grounds that: a) the “Building and public works collective agreement" only applied to public contracts and so covered only part of the construction sector; and b) there was no evidence to show that construction workers on public works needed more protection than those on private works. The answer is surely to make such requirements binding also on the private sector. Indeed, it is surely an anomaly that it doesn’t!

In this same judgement, with reference to the Posted Workers Directive (PWD), the Court said that the collective agreement did not fix a minimum rate of pay in accordance with any of the procedures laid down in the Directive (e.g. by law, regulation or universally binding collective agreements). It had not been declared universally applicable, as required by the Directive, even though there is a system for doing so in Germany. Again, the answer is surely to declare the agreement to be universally applicable, as provided for in the directive.

Some have suggested that the problem could be solved by having a new Social Protocol, annexed to the treaties. This would be very welcome but, in practice, would require the unanimous support of all Member States and would hence be extremely difficult to obtain.

We should be clear that not much is to be gained from blaming the Court or suppose that the Court has an anti-social bias – after all, the court merely clarifies what the state of the law is – rather, we should focus our attention on rectifying the underlying legal situation. In other words, the Laval, Ruffert, Luxembourg and other judgments tell us that it is the law, not the Court, that is the ass, in allowing the court to make an extremely minimalist interpretation of the PWD. Given that the ECJ rulings reveal that existing laws are inadequate, it is up to us to change the law - broadening the legal basis of the PWD to include a reference to the free movement of workers and to ensure that the PWD does not allow companies to undercut wages and working conditions in host countries.

The Andersson report is a useful contribution to this controversial and highly legally complex debate. Amongst its conclusions are a recommendation that EU countries should properly enforce the PWD, and a demand that the Commission draft legislative proposals to deal with the legal loopholes thrown up by the judgments and to prevent any conflicting interpretation of the law. Indeed, this is a point that should be part of our campaign in next year's European elections; that we will use our power to vote against the new Commission if they do not include the necessary legislative proposals in their first work programme.

The Commission has made encouraging noises in this regard. In April, a Commission statement emphasised that the freedom to provide services did not contradict and was not superior to the right to strike, organise and join a trade union or negotiate collective bargaining agreements. We need to ensure that they follow up their words with action.

It was disappointing to see the TUC conference back calls for a referendum, albeit for opposite reasons to the bulk of the treaty’s opponents, namely that they oppose what they consider to be a British “opt-out” from the Charter of Rights.

The Charter of Fundamental Rights, which was agreed by member states in 2000 and sets out the civil, economic and social rights that define European citizenship. It is a complex issue but essentially Britain’s "opt-out" is a special protocol providing that the charter cannot be used in British courts unless British law itself guarantees the same rights - which is almost always the case anyway.

Contrary to scaremongering by the CBI, article 137 of the treaty of Rome, expressly excludes EU-level legislation with respect to pay, the right of association, the right to strike and the right to impose lockouts, which will remain subject to national law, whether the charter is there or not.

Given all of this, it is important for trade unionists to recognise that, even with the UK protocol on the charter, the social dimension of the EU is better off with the Reform treaty than without it. The draft treaty not only makes explicit mention of the social model, it also commits governments to strengthening it and enshrines the principles of full employment and social progress. Similarly, the treaty emphasises that the EU must work to "combat social exclusion and discrimination", and will be legally required to promote social justice, gender equality and solidarity between generations. The treaty also requires the EU, in all policy areas, to take account of "the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health". Similarly, the treaty emphasises that the EU must work to "combat social exclusion and discrimination", and will be legally required to promote social justice, gender equality and solidarity between generations. It contains a new provision protecting public services from inconsiderate application of competition law.

Dissatisfaction about the protocol on the Charter, even if it were justified, is no reason to oppose the Treaty. Indeed, a resolution to campaign against it was defeated.

The TUC hosted an information evening for migrant workers in Hull’s Trade Union Studies Centre last night, with the emphasis on helping the eastern-European community understand their rights better.

Humberside, and Hull in particular, has been a popular destination for migrant workers because it is one of the main centres of food production in the country.

Along with some traditional Polish food there was advice on housing, joining a union and improving English skills.

And is quite clear is just how crucial language skills are, with almost all of the problems migrants have faced exacerbated by a lack of English.

Without good English there are obvious implications for health and safety while at work, but better language skills help integration, and mean people understand their rights and are able to better communicate problems they have to the authorities – meaning far less exploitation.

Bearing this in mind, East Riding College deserves congratualtions for its Get On At Work programme, which offers literacy, numeracy and langauge programmes. Ever since Hull became a popular destination for migrants they have been providing a variety of English lessons, many at the request of the employers themselves.

An additional bonus from these lessons is that some employers are seeing the benefits a commitment to adult education can have and are now offering all their workers the chance to learn and gain qualifications at work.

One of the main concerns about the migration of EU Citizens from the eight new eastern European countries is the potential for exploitation by unscrupulous employers, which is why it so good to see the UK ’s unions adapting quickly to deal with this new challenge.

This week’s Tribune reveals that my union, the GMB, has opened a branch in Southampton dedicated to migrant workers, with the city’s Polish community making up the large majority of its members. The initiative intends to help migrants improve their English, understand their rights, and build their confidence and skills. By helping migrant workers understand their rights British workers are also protected from unfair competition

The T&G also led the campaign for gangmaster legislation, which will protect casual workers, when it is introduced later this month.

The TUC have also released a guide to employment rights in Europe which you can read by clicking here (pdf). More information is available, in a variety of languages, on the special migration page of the TUC’s website, which you can access here.