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ILO: restrictions to the right to strike following the Laval and Viking rulings of the Court of Justice of the European Union violate ILO Convention no 87
In its annual report, the ILO’s Committee of Experts on the Application of Conventions and Recommendations (CEACR) has found the restrictions to the right to strike following the rulings of the Court of Justice of the European Union (CJEU) violate fundamental trade union rights.

The observations of the Committee of Experts relate directly to Sweden and the legislation that was adopted as a consequence of the Laval ruling of the CJEU, but the observations have important general implications for European trade union rights.

The Committee states that the limitations imposed on the Swedish trade unions’ right to take industrial action in order to convince a foreign service provider posting workers to Sweden to sign collective agreements are in violation of ILO Convention no 87 on the freedom of association and the right to organise. The Committee therefore requests the Swedish government to review the legislation so as to ensure that trade unions “are not restricted in their rights simply because of the nationality of the enterprise”.

Furthermore, the Committee is “deeply concerned” by the fact that the Swedish Building Workers’ Union and the Electricians’ Union were obliged to pay damages to the Latvian company Laval, despite the fact that the strike action was lawful under national law at the time. It therefore requests that the Swedish government review the matter and compensate the two unions.

The European implications of the ILO observations are basically the following:

• ILO denounces a proportionality reasoning justifying a possible restriction to the right to strike: The Committee notes that “when elaborating its position in relation to permissible restrictions that may be placed upon the right to strike, it has never included the need to assess the proportionality of interests bearing in mind a notion of freedom of establishment or freedom to provide services.” This is a very important statement relating to the Laval and Viking rulings, but also to the discussion in connection to the now withdrawn proposal for a “Monti II” regulation.
• ILO denounces a practice that the right to strike is restricted by the threat of economic sanctions on trade unions. “The Committee recalls that imposing sanctions on unions for leading a legitimate strike is a grave violation of the principles of the freedom of association”.
• ILO denounces regulations that limit the right to strike to minimum conditions. The Committee is concerned that the Swedish lex Laval legislation “restrict(s) recourse to industrial action to conditions corresponding to the PWD minimum conditions…” This is a very important statement in relation to the re-interpretation of the Posting of Workers Directive by the CJEU transforming the directive into both a minimum and a maximum directive, preventing Member States and trade unions to impose more than minimum conditions on posted foreign workers.
• ILO denounces practices that circumvent obligations to provide foreign posted workers with decent conditions. The Committee mentions the increasing number of “’double agreements’ in foreign companies which set terms at a very low level and then provide a second agreement only for presentation to the authorities and the trade union setting out better terms.” This is an important observation e.g. in relation to the present discussion on an Enforcement Directive related to the Posting of Workers Directive.

Sam Hägglund, General Secretary of the European Federation of Building and Woodworkers says: “The observations made by the ILO Committee are extremely important in relation to the present debate on trade union and workers’ rights in Europe. We now urge the EU legislators to align the EU regulations and practices with ILO Conventions no 87 and 98.”

For further information please contact:

Sam Hägglund, General Secretary, EFBWW.
Telephone +32 22271046
E-mail: samhagglund@efbh.be

Download actual text from the report

Related pages about:
EU Legislation Construction
Posting of Workers
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