MIGRANT ACCESS TO FREEDOM OF ASSOCIATION IN EUROPE:

The European Office of the High Commissioner for Human Rights (OHCHR) in a report on Migrant Workers’ Rights in Europe, published in 2011, has observed that the legislative policy of the European Union (EU) treats migrants ‘in a large instrumental manner’. EU policy objectives are concentrated on development of the European economy or social cohesion, ‘paying little attention to a rights-based perspective’. In our view, any attempt to ‘resocialize’ the EU requires full recognition of the human rights of migrant workers, including their entitlement to freedom of association. In this paper we focus on the rights of migrant workers to freedom of association. This is not to say that we do not believe that there are wide-ranging and diverse flaws in the treatment by EU institutions of migrant workers, which also have negative effects on ‘static’ workers who experience wage competition and potential diminution of their own terms and conditions. Their experience also deserves closer attention. Nevertheless, in this paper, we seek rather to address what is clearly a lacuna in EU migrant policy, namely the scope of legitimate claims which can be made by migrant workers under European and international human rights laws. The legal framing of collective bargaining coverage for migrant workers began with ‘posting’, that is the treatment of workers who were not exercising their rights to free movement under EU law, but were instead ‘posted’ to another Member State by an employer exercising the right to free movement of services. Such workers have come to form a peculiar and discrete category under EU law on the basis that they do not at any time gain access to the labour market of the host State. In this setting, it has been established by a Posted Workers Directive (PWD) that only certain forms of collective agreement are capable of conferring certain employment conditions on an employer of posted workers. Collective agreements stemming from enterprise level bargaining are excluded and there is no current indication that this will change. This is compounded by the case law of what now is titled the Court of Justice of the European Union (CJEU), which finds collective action in support of localised collective bargaining inappropriate where posted workers are involved. The UK has sought to evade coverage by EU directives relating to third country nationals, but we also detect a very curious development in this field of EU legislative action. It would now seem that an attempt is being made to transplant the legislative treatment of collective agreements for posted workers to the context of ‘third country nationals’, namely migrant workers who are not citizens of an EU Member State. In this respect, we are less concerned with the terms of their entry to the labour markets of member states, than the minimum employment conditions under which they are employed. Minimum terms are now regulated through a series of EU directives and further legislative proposals are currently being considered. We identify in the most recent draft instruments, not yet adopted, the language of equal treatment and recognition of entitlement to freedom of association. However, we also find ultimately the same problematic approach to enforceability of collective agreements and limited scope for migrant workers to be covered by and participate in collective bargaining. We seek to challenge the desirability of such an attempted transplant in human rights terms, given its practical effects. This is because, in Europe, during the current financial crisis, national level collective bargaining, which is the source of collective agreements that provide minimum terms of conditions within an industry or even across industries, is being systematically undermined by the promotion of bargaining at lower levels. Once upon a time, the prevalence of enterprise level bargaining in the UK was somewhat exceptional. Now, in the context of austerity measures, this can no longer be assumed to be the case. In other words, only certain forms of collective agreement are recognised by the EU as being applicable to migrant workers (both ‘posted’ and ‘third country’) and these forms are disappearing. It therefore looks very much as if the EU does not intend to give migrant workers genuine access to collective bargaining, which casts doubt on the adequacy of their access to freedom of association. The first section of the paper examines the extant employment conditions of migrant workers and their potential coverage by collective agreements at a time of economic crisis in Europe. In this respect, we consider the circumstances of migrants coming to the UK from within the EU and from outside the EU, also drawing on information from other EU Member States. It is evident that the forms of employment in which migrant workers are now typically involved render them in particular need of legal rights to benefit from trade union representation and collective bargaining at the same time as they also make it more difficult for them to do so. The second section outlines migrant workers’ entitlements to freedom of association and collective bargaining under international human rights law. In particular, we consider the innate connection between freedom of association and collective bargaining, as stated by the ILO and the European Court of Human Rights. In the third section of this paper, we identify what we term an attempted ‘posted transplant’, namely usage of the same legal devices for regulation of the terms and conditions of employment applicable to ‘posted workers’ in the context of ‘third country nationals’. These devices encapsulate a curtailed understanding of the legitimate scope of collective bargaining and enforceable collective agreements. Curiously, they seem to offer any employer of third country nationals guarantees of certainty regarding labour costs which are commensurate with those currently provided to employers exercising their rights to free movement of services between EU Member States. This might suggest that the objectives of the posted workers policies are to offer favourable terms of cheap labour to employers, as opposed to internal market freedoms. More pressing however are our concerns that, should the proposals be adopted, third country migrants will be unable to engage in meaningful collective bargaining and their rights to freedom of association restricted. We note that the European Parliament has found reason to take issue with aspects of the proposals and hope that its enhanced role as a key partner in the legislative process will mean this attempt at a posted transplant will fail. We conclude by proposing amendment of instruments of relevance to migrant workers so they might benefit from collective bargaining in European labour markets, at whatever level it occurs.