Conference papers for the event held on 21 March 2012 are now available to download here from London’s Developments in European Employment Law Conference.

The Institute for Employment Rights conference on European Labour Law, held in London on 21 March, generated sharp debate on whether a point of no return had been reached with the European Union and how far alternatives now had to be considered.

In a stimulating round table discussion, academics Tonia Novitz and Professor Keith Ewing together with labour lawyer John Hendy QC, highlighted the gravity of current EU interventions in collective bargaining rights and the right to strike. The original EU Court of Justice judgements of 2007-08 (Viking and Laval) had been particularly prejudicial to British trade unions, introducing concepts of “proportionality” and “necessity” that the ILO has repeatedly declared have no place in deciding the legality of industrial action. Failure to address that contradiction at international level will, it was warned, lead to damaging uncertainty in what is likely to be an increasingly large number of cross border disputes as companies register in one state and operate in another.

The speakers were pessimistic that the proposals from ex-EU Commissioner Mario Monti (the Monti II Regulation) would lead to any clear reversal, suggesting instead that the Draft Regulations (the latest version of which was issued as the round table discussion took place)would set in law judicial decisions that had been condemned by both the ILO and the Council Of Europe’s Social Rights Committee.

They pointed out that EU Treaty law, which determined the judgements of the EU Court of Justice, appeared to be moving strongly towards more direct interventions in collective bargaining. Both the Euro Plus Pact of March 2011 and the March 2012 Treaty (Stability, Coordination, Governance) now gave the EU Commission and the European Central Bank powers to require governments to annul collective bargaining agreements where these were considered to hinder full labour market flexibility. The gravity of this for the trade union movement could not be over-estimated.

Labour Law researcher Dr Linda Kaucher examined the implications of Mode 4 worker transfer procedures now embedded in all EU External Trade Agreements, most notably that being currently negotiated with India. This gave multinational firms the power to transfer workers from one country to another without access to the legal protections or collective bargaining agreements of the host country.

For the TUC Hannah Read noted that the ETUC had called for opposition to the new Stability Treaty. She nonetheless maintained the existing TUC position of ‘no alternative’ to the EU and hence the need to work within it to ameliorate the impact of current EU legislation on trade union rights. She called for a re-building of support for an EU social dimension which she admitted had been seriously eroded.

In a paper on the changing economic background to EU labour law, Professor John Foster stressed the ‘labour flexibility’ assumptions underpinning both the Singe Market and the Single Currency. These assumptions had been bound to bring collision with the trade union movement sooner or later. For this reason, if they were to be effectively challenged, it was important for the movement to be able to pose realistic alternatives.

He pointed out that Britain, like Switzerland, imported considerably more from the EU than it exported and there would seem to be no reason why full trading relations could not be established on the same basis. In Switzerland’s case, these were fully outside the neo-liberal requirements of the Single Market and the reach of the EU Court of Justice.

Carolyn Jones, Director of the Institute, suggested that trade unions could no longer ignore the need to consider alternatives or at least to call for a renegotiation of key elements of EU treaties that required the unfettered mobility of labour and capital.