The ‘wildcat strikes’ currently hitting the headlines raise some interesting employment law issues. Aside from the obvious questions surrounding the legality of industrial action in such circumstances, some tricky aspects of EC law are in play. While European workers’ right to work in the UK cannot be in question – the EC Treaty protects the free movement of workers – there is a question mark over the extent to which they can be employed on terms and conditions different to those applying generally in the UK, thus undermining local workers’ job security.

The oil refinery workers’ dispute raises the issue of the applicability of the EC Posted Workers Directive (No.96/71). This provides that ‘posted workers’ – those sent from one EU Member State to work in another – are entitled to the rates of pay, holiday pay and working hours laid down by national law in the host state. However, in most cases, the terms of local collective agreements do not need to be observed by the posting company. Alan Johnson, the Secretary of State for Health, speaking on BBC One’s ‘The Andrew Marr Show’ on 1 February 2009, referred to recent judgments of the European Court of Justice allowing the Directive’s protections to be ‘undermined’. While he acknowledged that the free movement of workers was a fundamental right, he went on to state that ‘we need to bring in fresh Directives to make it absolutely clear that people can’t be undercut in this way’.

Presumably one of the cases Mr Johnson had in mind was Laval un Partneri Ltd v Svenska Bygnaddsarbetareforbundet and ors (Brief 846). There, the ECJ held that trade unions were not entitled to take collective action aimed at securing terms and conditions for posted workers over and above those required by the Directive, as to do so would be an unjustified interference with the posting company’s freedom to provide services under Article 49 of the EC Treaty. Similarly, in Rüffert v Land Niedersachsen (Brief 853), a German law requiring public sector contractors and sub-contractors to pay workers the minimum wage laid down by a local collective agreement not covered by the Directive was in breach of Article 49, as the impediment it placed on foreign undertakings’ ability to provide services in Germany was not objectively justified. Therefore, the extent to which unions and governments can seek a level playing field with regard to terms and conditions for local and foreign workers is circumscribed by EC law.

The present dispute has arisen largely because of a perception that the Directive facilitates the exclusion of British workers from vacancies in British plants and factories. This has led to calls from unions for the Directive to be amended – calls that the Government may be heeding if Mr Johnson’s comments are anything to go by. However, as the ECJ made clear in Laval, the EC Treaty protects economic freedom as well as the rights of individual workers and where these two interests collide, a balance must be struck. Thus, any attempt to strengthen workers’ rights at the expense of those of businesses operating across European borders may require fundamental changes to the founding principles of the EC. Any such constitutional change would be hugely controversial and would, inevitably, be a long time coming.

The current industrial action is also fascinating for an entirely different reason. As has been widely reported, the current protests of oil refinery contract workers and at Sellafield are taking the form of ‘wildcat strikes’ – the colloquial term for unofficial industrial action. In the absence of pre-industrial action ballots, the relevant union – Unite – has to be sure to keep itself at arms length from the dispute for fear of being deemed to be supporting unofficial action and thus losing its immunity from being sued in tort. Such immunity is only available where a union endorses ‘official’ action (i.e. action that has received the support of the majority voting in a properly conducted ballot). Despite these legal hurdles – which were erected by the incoming Conservative Government following the widespread industrial unrest of the late 1970s – the refinery workers in the current dispute seem to be co-ordinating a programme of secondary action up and down the country.

This escalation is no mean feat given the legal inhibitions under which their relevant union is operating. So how are the workers doing this? Seemingly, by pressing home the advantages – perhaps for the first time in the industrial arena – of modern communication technology. Under the potent banner of ‘British jobs for British workers’, activists are utilising e-mails, the Internet, blogging and mobile phone texting to galvanise fellow workers and encourage them to walk out in protest. It is too early to say whether the current dispute is a storm in a teacup or the harbinger of much deeper industrial concern about the fate of UK workers in the global recession. But what is striking – no pun intended – is that, with thick snow on the ground and a profound recession causing daily reports of large-scale job losses, there are parallels between the current industrial and economic situation and that of the fabled ‘Winter of Discontent’.

© Incomes Data Services Ltd, 2009