ILO:lle vuonna 2009 annettavat raportit ratifioitujen yleissopimusten soveltamisesta

Työ- ja elinkeinoministeriö
PL 32
00023 Valtioneuvosto

Lausuntopyyntönne 14.4.2009
Dnro 992/083/2009

Suomen Ammattiliittojen Keskusjärjestö SAK ry, Toimihenkilökeskusjärjestö STTK ry ja Akava ry esittävät lausuntonaan seuraavaa yleissopimuksista 87 ja 98:

Yleissopimus 87

ILO Convention 87

1 The report of the Government should deal with the consequences of two decisions of the European Court of Justice (ECJ) in 2007 which have major implications for the right to freedom of association as contained in Convention 87. The decisions in question are binding in national law (1540/94) of Finland as an EU Member State and override domestic labour law to the contrary.

2 In different ways these decisions conflict with the obligations of Finland under article 3 of Convention 87, which provides that

1. Workers’ and employers’ organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes.

2. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.

3 Article 3 has been read by the ILO supervisory bodies to include the right to take collective action. Thus, it is stated in the General Survey of the Reports of the Freedom of Association and Right to Organise Convention and the Right to Organise and Collective Bargaining Convention (ILO, 1994).

Under Article 3(1) of Convention No. 87, the right to organize activities and to formulate programmes is recognized for workers’ and employers’ organizations. In the view of the Committee [of Experts], strike action is part of these activities under the provisions of Article 3; it is a collective right exercised, in the case of workers, by a group of persons who decide not to work in order to have their demands met. The right to strike is therefore considered as an activity of workers’ organizations within the meaning of Article 3 (para 49).

Similarly, in the Digest of Decisions of the Committee on Freedom of Association (ILO, 5th rev ed, 2006), it is stated that &#;8216the Committee has always recognized the right to strike by workers and their organizations as a legitimate means of defending their economic and social interests’ (para 522), and as ‘an intrinsic corollary of the right to organise’ (para 523). Although the right to take such action is not ‘an absolute right’ (Digest, para 151), the constraints introduced by the ECJ (and which are applicable in domestic law) go beyond the permissible limits so far accepted by the supervisory bodies.

The ECJ Decisions

Case C-438/05, Viking Line v ITF (11 December 2007)

4 In this case a Finnish company called Viking Line operated a ferry (the Rosella) between Tallin (Estonia) and Helsinki (Finland). The ferry flew the Finnish flag and the crew were paid in accordance with the terms and conditions laid down in Finnish collective agreements. In order to take advantage of lower wage costs in Estonia, the owners of the ferry proposed to reflag the Rosella in Estonia, a proposal to which the Finnish unions strongly objected. At the request of the Finnish Seamen’s Union (FSU), the International Transport Workers’ Federation (ITF) sent a circular to affiliates requiring them not to deal with Viking Line, which all affiliates would be expected to follow. At the same time, the FSU demanded improved manning levels on the Rosella and a commitment from the company that in the event of the vessel being re-flagged, it would continue to comply with Finnish labour law and would not lay off crew.

5 Viking Line eventually brought legal proceedings against the ITF and FSU in the English Commercial Court, the English courts being an option because the ITF is based in London. The company succeeded at first instance, but on appeal a rather sceptical Court of Appeal referred the matter to the European Court of Justice for a preliminary ruling about the extent (if any) to which the right of trade unions to take collective action was subordinate to the right of businesses to freedom of establishment in article 43 of the EC Treaty. This provides that

Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.

Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage under takings, in particular companies or firms within the meaning of the second paragraph of Article 48, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital.

6 The Court held that although protected by domestic labour law (and in that case the Finnish Constitution), industrial action may nevertheless be unlawful under Article 43. According to the Court, ‘collective action initiated by a trade union or a group of trade unions against a private undertaking in order to induce that undertaking to enter into a collective agreement, the terms of which are liable to deter it from exercising freedom of establishment, is not excluded from the scope of that article’. In order to reach this conclusion, the ECJ expressly treated trade union action as if it were equivalent to action by the State and trade unions as if they were regulatory State institutions, concluding at para 33 of its judgment that the rights of business to freedom of establishment under the EC Treaty, art 43

‘do not apply only to the actions of public authorities but extend also to rules of any other nature aimed at regulating in a collective manner gainful employment, self-employment and the provision of services’.

The Court held further that the rights of the employer under the Treaty could be ‘relied on against a trade union or an association of trade unions’. This means – remarkably – that the freedom of establishment enshrined in the Treaty have direct horizontal effect. Although the Court accepted that collective action ‘may, in principle, be justified by an overriding reason of public interest, such as the protection of workers’, this was subject to the very narrow qualifications discussed in the following paragraph.

7 There are real concerns about the circumstances in which collective action may be recognised as a permitted restriction on the rights of business. These are as follows:

• First, collective action may only be taken in exceptional circumstances. According to the Court at para 81: ‘as regards the collective action taken by FSU, even if that action – aimed at protecting the jobs and conditions of employment of the members of that union liable to be adversely affected by the reflagging of the Rosella – could reasonably be considered to fall, at first sight, within the objective of protecting workers, such a view would no longer be tenable if it were established that the jobs or conditions of employment at issue were not jeopardised or under serious threat’.
• Secondly, even if the collective action falls within this narrow band of permissibility, it may only be taken if it is ‘suitable’ and ‘necessary’ (an open proportionality assessment). According to the Court at para 84: if ‘the jobs or conditions of employment of the FSU’s members liable to be adversely affected by the reflagging of the Rosella are in fact jeopardised or under serious threat, it would then have to ascertain whether the collective action initiated by FSU is suitable for ensuring the achievement of the objective pursued and does not go beyond what is necessary to attain that objective’.
• Thirdly, in determining what is necessary for these purposes, the trade union is required first to exhaust any other methods of dispute resolution. According to the Court at para 87: ‘whether or not the collective action at issue in the main proceedings goes beyond what is necessary to achieve the objective pursued, it is for the national court to examine, in particular, on the one hand, whether, under the national rules and collective agreement law applicable to that action, FSU did not have other means at its disposal which were less restrictive of freedom of establishment in order to bring to a successful conclusion the collective negotiations entered into with Viking, and, on the other, whether that trade union had exhausted those means before initiating such action’.

Case C-341/05, Laval v Svenska Byggnadsarbetareforbundet (18 December 2007)

8 In this case, a Latvian company was contracted to renovate and extend school premises in Vaxholm, Sweden. The work was to be undertaken by employees who were to be posted from Latvia. The freedom of businesses in one member State to provide services in another EU Member State is provided for by EC Treaty, art 49; and the rights of workers posted from one Member State to perform a contract in another is governed by the Posted Workers’ Directive, 96/71/EC (PWD). Both Article 49 and the PWD are considered in more detail below, in relation to ILO Convention 98. In the meantime, it is enough to note that the PWD provides that employers posting workers from one EU Member State to another to perform functions listed in the annex to the Directive (relating to construction) must observe certain minimum terms and conditions (including pay) provided for in the host State where these are higher than the terms and conditions that would otherwise be payable to the workers concerned. The minimum terms and conditions to be applied for this purpose are those relating to the mandatory matters listed in art 3(1); as set down in (i) minimum standards legislation or (where they exist), (ii) collective agreements that have been declared universally applicable.*)

*) Where, however, there is no system for declaring collective agreements universally applicable, Member States may, if they so decide, base themselves on collective agreements that (i) are generally applicable to all similar undertakings in the geographical area and in the profession or industry concerned; or (ii) have been concluded by the most representative employers’ organisations and trade unions at national level and which are applied throughout the country.

9 Swedish law does not, however, make provision for a statutory minimum wage, nor did it have collective agreements that were declared universally applicable within the meaning of the Directive. In the absence of either a statutory minimum wage or universally applicable collective agreements, Swedish unions sought to negotiate a collective agreement with Laval about the terms and conditions of employment of the Latvian workers, and about the company signing the Swedish building workers’ collective agreement. The negotiations were unsuccessful, and the Swedish trade unions blockaded the company, action which was lawful under Swedish law. Following legal proceedings brought in Sweden Labour Court by Laval against the Swedish unions, a reference was made by the court to the ECJ seeking a preliminary ruling on the question whether it is

compatible with rules of the EC Treaty on the freedom to provide services and the prohibition of any discrimination on the grounds of nationality and with the provisions of Directive 96/71/EC … for trade unions to attempt, by means of collective action in the form of a blockade (‘blockad’), to force a foreign provider of services to sign a collective agreement in the host country in respect of terms and conditions of employment, such as that described in the decision of the Arbetsdomstolen [of 29 April 2005 (collective agreement for the building sector)], if the situation in the host country is such that the legislation to implement Directive 96/71 has no express provisions concerning the application of terms and conditions of employment in collective agreements.

10 As already indicated, a specific feature of industrial relations in Sweden was that there was no statutory minimum wage and no universally applicable collective agreements.
The only steps available to the unions to ensure compliance with prevailing collective agreements was by negotiation backed up by collective action, which is what happened in this case, but which the ECJ held to be unlawful:

Article 49 EC and Article 3 of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services are to be interpreted as precluding a trade union, in a Member State in which the terms and conditions of employment covering the matters referred to in Article 3(1), first subparagraph, (a) to (g) of that directive are contained in legislative provisions, save for minimum rates of pay, from attempting, by means of collective action in the form of a blockade (‘blockad’) of sites such as that at issue in the main proceedings, to force a provider of services established in another Member State to enter into negotiations with it on the rates of pay for posted workers and to sign a collective agreement the terms of which lay down, as regards some of those matters, more favourable conditions than those resulting from the relevant legislative provisions, while other terms relate to matters not referred to in Article 3 of the directive (para 111).

11 Although the ECJ acknowledged that the obligations imposed by Community law could be subject to restrictions designed to protect fundamental rights (in this case the right to strike), it was thus held that the industrial action in this case did not constitute such an exception. As a result,

• In systems where national law does not require a posting employer to comply with a statutory minimum wage or with universally applicable collective agreements, a trade union’s right to take collective action against a posting employer in order to secure a collective agreement, or to seek compliance with the terms and conditions of a collective agreement, is greatly reduced;
• In systems where (i) national law requires a posting employer to comply with a statutory minimum wage, but (ii) there are no universally applicable collective agreements (as defined), it is now unclear whether a trade union may take industrial action with a view to requiring the posting employer to pay higher wages than the minimum set down in statute.

What is more, it would appear that industrial action for these purposes will be unlawful, regardless of whether its purpose is to (i) protect standards in collective agreements from being undercut, or (ii) protect posted workers from being exploited in the domestic labour market, or (iii) both.

Implications of ECJ Decisions for Freedom of Association

12 It is important to emphasise that these decisions are binding on the national law of all EU Member States. As the Court recognised in Viking, although protected by the Finnish constitution, the right to strike cannot be relied upon when its exercise would breach EU law. EU law is part of the domestic law of Member States of the EU. As was pointed out by the ECJ in one of several seminal decisions:

By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply. By creating a community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the Community, the Member States have limited their sovereign rights and have thus created a body of law which binds both their nationals and themselves (Case 6/64. Costa v ENEL [1964] ECR 585, at para 3).

Notwithstanding the consideration of the ECJ, it is the responsibility of ILO Member States to ensure that domestic law in all of its aspects complies with international labour standards to which the country in question has agreed to be bound, and to ensure that international obligations are mutually compatible.

Prohibitions, Restrictions and Consequences

13 SAK, STTK and Akava believe that the decisions of the ECJ (which have a direct impact on the national law of Finland) conflict with the obligations of Finland. Before addressing our particular concerns about the right to strike, we wish to record two general concerns

• first, trade unions are seen by the ECJ as regulatory bodies, equivalent to an arm of the State (Viking, para 33), in direct contradiction to the underlying purpose of freedom of association, whereby trade unions are independent and autonomous bodies;
• secondly, the rights of trade unions to take industrial action are subordinated to the over-riding commercial interests of business (as set out in EC Treaty, arts 43 and 49), so that trade union action has always to be justified as a permitted restriction of these fundamental freedoms.

14 As already indicated in para 11 above, otherwise these decisions have major implications for trade union autonomy and the right of workers and their organisations to take collective action to protect their interests.

As a result of the decisions of the ECJ, certain forms of industrial action now appear to be prohibited as a matter of law:

• In systems where national law does not require a posting employer to comply with a statutory minimum wage or with universally applicable collective agreements, a trade union’s right to take collective action against a posting employer in order to secure a collective agreement, or to seek compliance with the terms and conditions of a collective agreement, is greatly reduced (Laval</em>);
• In systems where (i) national law requires a posting employer to comply with a statutory minimum wage, but (ii) there are no universally applicable collective agreements (as defined), it is now unclear whether a trade union may take industrial action with a view to requiring the posting employer to pay higher wages than the minimum set down in statute (Laval).