There has been considerable concern expressed regarding the employment rights that British workers would lose by virtue of Brexit. But this is not straightforwardly the case in respect of collective labour rights. Although European Union (EU) directives offer some protection of collective labour rights, national trade union freedoms regarding collective action have arguably been undermined (rather than bolstered) by EU hard and soft law. This means that the worker and trade union case for resisting Brexit remains complicated. While the over-arching aim is to stay in the EU for the sake of many individual and some collective worker entitlements, reform remains on the agenda.
Significant collective labour rights could be lost should Brexit occur and the UK remove itself from the established social pillar of legislation established under EU law. EU directives protect information and consultation rights concerning redundancies and transfers of undertakings, as well as provide for collective representation through European works councils and in European companies. Further, collective agreements may shape the domestic application of EU norms such as working time or provide the basis for entitlements at work such as those for posted workers or workers taking parental leave. However, this is not the only possible narrative regarding collective labour rights in the EU.
Because of Article 151 of the Treaty on the Functioning of the EU, the EU has never claimed competence to regulate certain aspects of social policy pertaining to ‘the right of association’, ‘the right to strike’ or even ‘the right to impose lock-outs’. Instead, any regulation of trade union activity, collective bargaining or collective action has emerged as a potential exception to what does lie within EU legal competence, such as free movement of goods, services and establishment, and competition law. The limited scope for these exceptions is what could be lost upon Brexit.
In Viking and Laval, the Court of Justice of the EU recognised the right to take collective action as a facet of both international law and EU law under the Community Charter of the Fundamental Social Rights of Workers 1989 and the EU Charter of Fundamental Rights 2000. However, this was not enough to outweigh the employers’ free movement claims, meaning that trade unions could be made to compensate employers for the collective action taken. This finding’s potential to profoundly affect the scope and application of domestic labour laws concerning the legality of strikes might seem to be a reason for Brexit. But this approach has also shaped the findings of the European Free Trade Agreement court in relation to the European Economic Area Agreement (EEA). Thus, even if Brexit occurs, cross-border collective action could still be caught by the free-movement rights contained in the EEA, should the UK become a party to that agreement or one with similar content. The alternatives for the UK in the context of trade law may, therefore, have their own deregulatory impetus.
Upon Brexit, the UK would no longer be subject to EU soft law in the form of ‘Country Specific Recommendations’, which seek to influence the structure of labour markets and notoriously promote non-unionised forms of workplace agreement. Following the financial crisis, EU institutions have used such mechanisms to promote macroeconomic goals and austerity measures, reducing the protections offered to workers by collective labour laws in Europe. Nevertheless, the alternative for British workers is a Conservative Government apparently eager for trade-union reform and the continued erosion of collective labour rights. Those concerned by EU austerity measures can find no obvious, palatable alternatives at national level.
It would be easier to elect a new UK Government with a different agenda than to persuade an EU of 28 states to reverse established hard- and soft-law trends in order to bolster trade union entitlements under a renewed social pillar. But, at this stage in the British electoral cycle, that is a risky strategy. Even if the UK leaves the EU, but negotiates a trade deal within or comparable to the EEA, the same EU constraints on domestic exercises of collective labour rights will apply, only without the UK possessing the political influence within the EU to change these laws. The most attractive option, therefore, seems to opt to stay but keep alive the case for reform in the EU. Whether British workers agree with this evaluation is a question to be answered on the 23rd of June.