European Union Labour Laws - Coursework Example

EUROPEAN UNION LABOUR LAWS European Union labour laws Inserts His/Her Inserts Grade Inserts 11 November 2008 Question 1 Introduction Although the European Union (EU) has been highlighted as the most advanced system of regional integration of labour (Craig & Lynk 2006, p 20)1, it has not escaped criticism in regard to a plethora of issues concerning workers in Member States. For instance, Craig and Lynk (2006) identified the addition of ten states (the Czech Republic, Estonia, Lithuania, Cyprus, Slovakia, Slovenia, Malta, Poland, Hungary and Latvia) in 2004 into the EU membership as one of the challenges facing the bloc. The same authors noted that the enlarged membership finds difficulties in harmonizing policies in the entire EU region. In addition to the problem harmonization, some regions in the bloc (Central and Eastern states) have been noted to have generally more favourable laws than other regions (Craig & Lynk 2006, p 22). In spite of the difficulties, the EU legal framework has been praised for its tendency to intervene in domestic labour relations in the Union’s Member States. For instance, Bermann and Pistor (2004)2 argued that the European Social Charter (ESC) is of major importance in itself as a benchmark against which other global standards and supervisory arrangements in the field of law have been judged (p 156). Nevertheless, the ESC has not been successful in achieving the objectives anticipated by citizens of the EU’s member countries. This paper focuses on the strengths and weaknesses of the EU legal framework regarding workers and their families. For instance, there is freedom of movements in many states, but on the contrary, the freedom to work and live in EU member countries is limited by some sections of the legal framework (Craig & De Búrca 2008, p 743)3. The paper therefore evaluates weaknesses in the union’s legal framework while appreciating the merits of the framework. Weaknesses of the EU legal framework in regard to workers and their families Craig and Lynk (2006) noted that EU Member States from Central and Eastern Europe historically had industrial relations tailored in a manner to react to the legacy of communism, thus they tended to display excessive neo-liberalism. Consequently, collective organizations representing workers and employers in these countries are considerably rare in the private sector (Craig & Lynk 2006, p 23). Ultimately, many private companies in central and eastern Europe are able to process contracts without allegiance to the labour laws. This is definitely a weakness in the purview of a large integration union like the EU. A notable aspect of the EU legal framework concerning workers and their families is the definition of a worker and the Member States of the union. According to the Immigration Advisory Service (IAS), the definition of workers includes those who work part-time or are in low pay, and the unemployed can also be classified as workers and still qualify for the European Commission rights. The broad definition therefore includes people in work and those seeking work. This is a good policy since it allows even the unemployed people’s to be entitled to some resources from the respective governments of their countries. The definition of a worker notwithstanding, the membership to the EU by European countries confers some disparity, which could have a pronounced impact on workers in the region. For instance, the ten states that became members of EU in 2004 (the Czech Republic, Estonia, Lithuania, Cyprus, Slovakia, Slovenia, Malta, Poland, Hungary and Latvia) do not enjoy the benefits of the Union as established Member States (IAS)4. The ten states are referred to as Accession States (A8) and their citizens are not entitled to free working environments in EU Member States, as are the older Member States (IAS). For instance qualified citizens of A8 countries do not have direct rights to work in a country such as the United Kingdom until special documentation procedures are followed (IAS). There is lack of total unification in the EU labour laws. As mentioned above, A8 country citizens are not automatically allowed to work in the UK. In order to qualify, the people involved must register with the Home Office in the UK during the first twelve months of obtaining employment in the UK (UK home Office)5. If the laws were harmonised there would be no categories such as established Member States and Accession states (UK home Office). In addition to the disparity is capacity of membership, there is dissonance in the level of acting in respect of law among the Member States of EU. There is a lot of complexity in different countries regarding work policies that one would the countries do not function as one bloc (UK home Office). Former Communist states in the EU integration have shown that an economic system can become rigid if a country’s labour market is not sufficiently flexible and lacks the stimulus of job rotation (Biagi, Blanpain & Weiss 2003, p 154)6. The 1997 Posted Workers Directive is a controversial aspect of the European Labour Law, which imposes a notable weakness on the law (Hardy, Staff & Butler 2007, p 21)7. This a point that assesses the position of the European Court of justice in determining cases filed by or against trans-national workers in EU member countries. It is notable that the EU member countries have failed to implement the directive and this causes suffering to workers and their families in case they are involved in suit (Hardy, Staff & Butler 2007, p 22). Although the EU’s platform agenda was established based on encouraging free movement of citizens of Member States, the bloc can be criticised for failing to effectively deal with issues concerning the movement of workers and their families (Hardy, Staff & Butler 2007, p 22). In essence, many laws are just on paper but not operational. The long procedures involved in securing work permits from the EU region by non-member country citizens has caused many to opt for the Temporary Agency Workers category (Biagi, Blanpain & Weiss 2003, p 23). Under the Temporary Workers Agency, a third party or agency acts as an intermediary between the worker and the prospective employer (Hardy, Staff & Butler 2007, p 23). Contractual agreements vary in different EU states but in most cases, the agency employs the jobseekers and hires them to employers in need of their services on a temporary basis (Hardy, Staff & Butler 2007, p 24). This is common in the EU-15 countries such as Netherlands, Belgium, France, Spain and Sweden. However due to lack of clear EU policies, the workers and their families are exposed to exploitation by the agencies (Biagi, Blanpain & Weiss 2003, p 155-157). For instance, the agencies are under no obligation to take care of the workers’ families or to assure the workers of permanent employment. Hence, they can dismiss job seekers and recruits at will depending on the prevailing circumstances. Such workers are also denied chances to train or work in suitable conditions (Bermann & Pistor 2004, p 155). Strengths of EU legal framework in regard to workers and their families In spite of the criticisms and factors undermining the operation of the EU policies, the laws have brought some harmonization in countries that would otherwise have wanted to stick to their stringent immigration and labour policies (Bermann & Pistor 2004, p 156). For instance, the EU recognises free movement of persons as a fundamental freedom that is guaranteed by the EU law (Biagi, Blanpain & Weiss 2003, p 155). This is conceivably the most important right under Community law for individuals, and forms an important part of European citizenship (Biagi, Blanpain & Weiss 2003, p155). The freedom of movement for workers has been in existence since 1957 when the European community was founded (Biagi, Blanpain & Weiss 2003, and p154). Article 39 of the EC (EU) Treaty thus entails the right to seek a job in another Member State; the right to work in another Member State; the right to reside in a Member State fro the purpose of work; the right to remain in a Member State; and the right to equal treatment with respect to access of employment (Biagi, Blanpain & Weiss 2003, p 154). In addition, the Act recognises the right to equal treatment with respect to access of employment, working environment and all other benefits that could help in integrating the worker to the host Member State (Biagi, Blanpain & Weiss 2003, p 156). While this is a very important Act, it is noteworthy that each Member State is sovereign and may therefore act in preference of its own laws rather than the recommendations by the EU. In addition to soliciting for equal rights of workers and their families, the EU law has the EU directives, which aim at protecting workers. For example, Directive 89/391 (which is known as the Framework Directive) and Directive 92/57, also referred to as the Temporary and Mobile Sites Directive are transposed to Member States and place requirements on employers and others involved to evaluate and protect workers’ health and safety (Biagi, Blanpain & Weiss 2003, p157). Overall, the European Union legal framework has strengthened and made flexible the possibility of citizens of Member States to work across their state boundaries. What remains an enigma is the role that each Member State has to play within its boundaries to promote the EU policies. Conclusion The EU labour laws are hampered by non-uniformity of the capacities of membership, hence A8 countries seem to have less influence in the face of established Member States. Nevertheless, the EU labour laws have brought a semblance of uniformity in Member States in regard to working conditions and procedures, immigration policies and rights of workers and their relatives. It is therefore upon individual states to look beyond their sovereignty and conform to the EU stipulations. Question 2(a) Sadie’s case On a fictitious perspective, the EU Council Directive 2004/707 on transporting retired people adopted in 2000 requires all Member States to allow all retired EU workers beyond the age of 65 years to travel within the Member State on all forms of transport free of charge. However, Sadie who is 65 and a Polish citizen is a right to free travel by Virgin Company, a company involved in transport. The case above seems to be a scenario whereby Sadie is subjected to disservice by Virgin Company given that she seems to have a right to enjoy free service from the company. However, if one clearly reads the fictitious EU Council Directive 2004/707, there is an aspect that the people who qualify for being accorded free transport service are those of age beyond 65 years. In Sadie’s case, she has just attained 65 years and therefore does not qualify for the free service. The company might have been very cautious in reading the recommendations from the EU directive. In addition, Sadie is a Polish and since Poland is categorized under the A8 countries, its citizens have freedom of movement albeit with minor restrictions. In reality, the current European Union law restricts free movement of people as a safety measure. When the Member States of EU negotiated the Treaty, they drew up a list of common interests, among which free movement of people was included (Craig & De Búrca 2008). The other matters included asylum, immigration, drugs, controls at the Union’s external boundaries, international fraud and civil and criminal justice (Craig & De Búrca 2008). However, it was noted that the creation of an area of free movement had to be flanked with measures to reinforce external frontiers and immigration and asylum policies (Craig & De Búrca 2008). One of the main objectives of allowing free movement was to create a large economic market where goods, capital and services would move without hitches (Foster 2007)8. However, the free movement of persons had its adverse effects: there arose problems caused by the free movement of goods as well as security threats (Craig & De Búrca 2008). In common parlance, allowing free movement of people encourages illegal activities such as passing of illegal immigrants; human trafficking and drug haul (Craig & De Búrca 2008, p 743). In essence, Sadie’s case where she was denied free transport might have been triggered by the fact that virgin company was wary of individual posing as aged people only to turn out later to be criminals. If the EU Council Directive 2004/707 were indeed functional and if Sadie were over 65 years, she would have had a right to sue Virgin Company for disservice. However, since at the time of Virgin’s refusal to offer Sadie free transport as required by law she was below the minimum recommended age for retirees, she could not obtain any tangible evidence to support her suit against Virgin. The only remedy that Sadie would have had is to wait until she attained an age over 65 in order to start seeking the free transport services in United Kingdom. Question 2(b) Bill’s case According to a fictitious EU directive, all EU workers have a right to claim one complimentary flight per year to any EU Member State using any national airline. However, when Bill, a Spanish who lives in UK requests fro the service from the transport department, the request is refused. He gets violent and smashes windows while throwing abuses at the members of staff of the department. It is also realised that he was resistant aggressive to a policeman in 2000 when he was found drunk in London. So he is handed a deportation order. According to the UK Home Office, a deportation order requires an individual to leave the United Kingdom and authorises his or her detention until he or she is bailed. The order also prohibits the person from re-entering the country for as long as the order is still applicable (in force) and invalidates any request to enter or remain in the United Kingdom before the order was made or is still in force. The deportation order is given under the following circumstances: Where the Secretary of State finds it necessary to deport the person for the interest of the public. Where the person is the spouse or civil partner or child under the age of 18 of a person ordered to be deported Where a court recommends the deportation exercise in case a person under the age of 17 has been convicted of an offence punishable by a jail sentence (UK Home Office). According to Cap 378 of the Deportation Order, a deportation order may not be stated while it is still possible for the prospective deportee to appeal against the Secretary of States decision, or while the prospective deportee’s appeal is pending (UK Home Office). In Bill’s case there were multiple reasons for deportation are involved, which make the case more complicated. In the EU law, Free Movement of Workers is included in the provision of the EC Treaty under Acts 39-42, the secondary community law and the case law of the European Court of Justice (ECJ) (N. Foster, p13). Under this section of the law, the Court of Justice seeks to protect the freedoms of individual workers and restrict, in cases where possible, the reasons by which Member States of the EU may apply to restrict those freedoms to individuals (N. Foster, p 14). In this case, Bill may find some reprieve from the EU law. Bill’s case can be likened the suit involving R v IAT. Ex parte Antonissen (Case C -292/ 89) in which Antonissen, a Belgian, had initially been handed a deportation order but sought to rely on Article 48 of the of the EC Treaty (after it was amended from Article 39 EC) (Weatherill 2007, p 427)9. He had been a jobseeker in the UK for over six months and a tribunal that investigated him was of the opinion that he had no legal Community rights. However, the European Court Of Justice took a different stance: since Antonissen provided evidence that he was still looking for employment, he would be allowed to go on as the Community law stated that a person seeking emolument for more than six months would be deported unless he provided evidence that he is still continuing to seek employment and that he has genuine chances of being engaged (S. Weatherill, p 427). Such is a perfect example of how the EU law can salvage individuals who are condemned by local national Member State laws. It is a matter of contradiction of national law and international law. In another suit, R v Bouchereau (Case 30/ 77), Bouchereau, a French national working in England was convicted of unlawful possession of drugs and causing disorder (Weatherill 2007, p 437). Nevertheless, Bouchereau battled proposed deportation using the Community law (S. Weatherill, p 437). He pleaded that the UK court did not have enough evidence to charge him for violating Article 48(3). The European Court of Justice weighed the matter by visiting the items in Article 3(2) of the EU directive 64/221 which states that “previous criminal convictions shall not in themselves form the grounds for taking such measures” (deportation) (S. Weatherill, p 437). Back to Bill’s case, his previous crimes could not be used as the basis for his deportation, rather there was need to evaluate his immediate crimes and possibly derive a milder sentence. References BERMANN, George A. & Pistor, Katharina. Law and Governance in an Enlarged European Union: Essays in European Law. Hart Publishing, London, 2004, p 156-157 BIAGI, Marco; Blanpain, Roger & Weiss, Manfred. Changing Industrial Relations & Modernisation of Labour Law: Liber Amicorum in Honour of Professor Marco Biagi. Kluwer Law International, London, 2003, p 154-157 CRAIG, John D. R. & Lynk, Michael. Globalization and the Future of Labour Law. Cambridge University Press, Cambridge, 2006, p 20-23 CRAIG, Paul & De Búrca, Gráinne. EU Law: Text, Cases and Materials, Oxford University Press, Oxford, 2008, p 743 FOSTER, Nigel. EU Law: 2007 and 2008. Oxford University Press, Oxford, 2007, p13-14 HARDY, Stephen; Staff, Stephen Hardy & Butler, Mark. European Employment Laws: A Comparative Guide, Spiramus Press Ltd, 2007, p 21-25 IAS (Immigration Advisory Service), available from http://www.iasuk.org/module_images/European%20law%20and%20applications%20(Jan%2006).pdf (11 November 2008) UK Home Office, http://www.bia.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules/part13/ (11 November 2008) WEATHERILL, Stephen. Cases and Materials on EU Law. Oxford University Press, Oxford, 2007, p 427; 437-438 Bibliography HIX, S. The study of the European Union II: the new governance agenda and its rival. Journal of European Public Policy, 5 (1) March 1998: p 38 – 44 SCOTT, J &. Trubek, D M. Mind the Gap: Law and New Approaches to Governance in the European Union. European Law Journal, Sep 2008: 8 (1), p 11 Read More