Global judgements and ideas.

Freedom of movement V Freedom of contract

Britain voted to leave the European Union in a momentous referendum held on 23rd June 2016. This was the second time Britain has held a European Union related referendum. The first time was in 1975 where the vote was whether to stay within the European Economic Community (EEC). At the time, British trade unions were not particularly keen to stay within the EEC as it was seen to represent all things capitalist. Nonetheless, the vote swung to remain and Britain stayed in the Common Market.

Then, perhaps resulting from 1980s conservative leadership, British unions realised that EU was the most beneficial thing unions had available as a defense for employment law. Margaret Thatcher (PM 1979-1990) implemented a series of union weakening policies including the ‘single issue’ premise for industrial action and directly attacked industry, tearing apart local communities in several areas across Britain that thrived on coal, potteries and steel industries.

In 1993 the Working Time Directive (WTD) was drawn up in the Maastrich Treaty. In a Thatcherite direction, John Major opted out of this Directive. But fast forward to 1998 and Tony Blair implemented the WTD, with the curious and unique caveat for workers, stating that they can ‘opt out’ of the Directive and can work more than 48 hours if desired.

The WTD defends:

A maximum working week of 48 hours
A rest period of 11 consecutive hours a day
A rest break when the day is longer than six hours
A minimum of one rest day per week
The statutory right to four weeks’ holiday

This was a positive moment for Britain’s relationship with the European Union and strengthened trade unions’ local negotiations.

A few years later, David Cameron’s government attempted to reverse any progress made during (old) Labour’s period of leadership. Cameron’s government invented the Trade Union Bill (now an Act), designed to significantly restrict strike activities. Cameron also commissioned the Beecroft Report in 2011, exploring ways to deregulate any areas not covered in EU law. The discussion in this Report permitted new legislation requiring employees to pay for Tribunals and made reforms to ‘unfair dismissal’ that was supposedly very good for small and medium enterprises, cutting out red tape and allowing savings. Cameron also looked for ways to scrap rules granting agency workers the same pay and rights as full time employees, which had been agreed by Gordon Brown.

Another important European Union law explicitly defending workers’ rights allows workers to cross borders and work wherever they want in the EU: Free Movement of Workers, set out in Article 45 of the Treaty on the Functioning of the European Union (TFEU). This requirement for state’s inclusion in the single market of the EU prohibits any discrimination based on nationality between workers. It allows all EU citizens to:

  • look for a job in another EU country
  • work there without needing a work permit
  • reside there for that purpose
  • stay there even after employment has finished
  • enjoy equal treatment with nationals in access to employment, working conditions and all other social and tax advantages

British workers, then, are permitted to work across borders if they desire and several hundred thousand British workers have taken advantage of this permission.

Other important key rights in employment in Britain provided by the EU are outlined in the TUC in ‘Workers’ Rights from Europe: The Impact of Brexit’ paper which clearly demonstrates how cases that are ruled in the European Courts of Justice have had greater impact for promoting equality at work and protections of workers’ rights than any domestic cases have had. These are, in particular, in cases on:

  • Discrimination
  • Data protection
  • Equal treatment directive: protects against direct and indirect sex discrimination in employment, including pay
  • Disability, religious, age, sex discrimination

Provisions of EU law can be relied upon directly by individuals in national courts when they are precise enough, including for example articles of the TFEU i.e. Article 157 which is on equal pay between men and women. At the European Courts of Justice, the Defrenne v. Sabena discrimination case, the decision was effective against state bodies as well as private bodies, meaning it could be relied on in the absence of domestic legislation.

After Brexit, however, there will be no legal barrier to British government legislation to create a labour market whose predominant feature is freedom of contract which is a legal system which permits the employer to dictate terms. Without EU membership Britain will no longer enjoy extensive collective bargaining coverage which can operate to correct the inequality of bargaining power between the individual employer or employee or to compensate the absence of legal rights in any area outside freedom of contract.

The European Commission is right now discussing strengthening provisions for special leave for fathers, carers’ leave, more flexibility of working arrangements for carers and parents and equal treatment rights. Britain, leaving the European Union, will probably miss out on all of this.

British trade unions have taken a variable stance on what must happen as the discussions for exiting the European Union commence. The Universities and Colleges Union, the union I am in, needs to take a stance for freedom of movement and to defy freedom of contract. Other unions should do the same, and there should be solidarity across movements and unions. Our Freedom of Movement campaign, run by Lucia Pradella, Sean Wallis, Carlo Morelli and myself, is about freedom of movement for British and EU workers and about the rejection of freedom of contract. We call for all unions to join our campaign for the rights of workers campaign for the rights of workers that regards internationalism as central to the labour movement.


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This entry was posted on August 8, 2016 by .
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