German and British Labour Law in a European Context Following European Union Enlargement
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GERMAN AND BRITISH LABOUR LAW IN A EUROPEAN CONTEXT FOLLOWING EUROPEAN UNION ENLARGEMENT Rebecca Lisa Zahn DOCTOR OF PHILOSOPHY UNIVERSITY OF EDINBURGH 2011 TABLE OF CONTENTS Abstract 3 Acknowledgements 4 Declaration 5 CHAPTER ONE INTRODUCTION 6 CHAPTER TWO THE ROLE OF TRADE UNIONS IN GERMANY AND THE UK 24 A. Introduction 24 B. Spectrum of legal systems 27 C. Historical, economic, social and cultural context of British trade unions 29 D. Historical, economic, social and cultural context of German trade unions 39 E. The role of trade unions in Germany and the UK 45 1. UK 47 2. Germany 50 F. European dimension 54 G. Conclusion 57 CHAPTER THREE THE EUROPEANISATION OF GERMAN AND BRITISH LABOUR LAW 60 A. Introduction 60 B. Europeanisation 64 C. Example 1: European Labour Law 71 D. Example 2: Directives 73 E. Example 3: Movement towards soft law 85 F. Example 4: Case law 88 1. The Viking case 89 2. The Laval case 95 3. The Rüffert case 99 4. Analysis of the cases 102 G. Overall analysis of europeanisation and conclusion 107 CHAPTER FOUR TRADE UNIONS, MIGRANT WORKERS AND THE EUROPEAN UNION 113 A. Introduction 113 B. Unions and migrant labour 114 1. UK 117 2. Germany 121 C. Trade unions and the European Union 126 D. The European enlargements and the new Member State workers 128 E. Concluding Remarks 144 1 CHAPTER FIVE CASE STUDIES 148 A. Introduction 148 B. Case Study Methodology 149 C. UNISON 152 1. Responses to enlargement and the transitional arrangements 153 2. Responses to new Member State workers 154 D. Ver.di 159 1. Responses to enlargement and the transitional arrangements 161 2. Responses to new Member State workers 164 E. Level of Cooperation 168 1. Ver.di – UNISON 168 2. Within and through the ETUC 169 F. Conclusion 171 CHAPTER SIX ANALYSIS OF GERMAN AND BRITISH TRADE UNION RESPONSES 173 A. Introduction 173 B. Structure of analysis 176 C. Analysis of the case studies 177 1. UNISON 179 2. Ver.di 183 D. Analysis in the context of national legal frameworks 186 1. UNISON 186 2. Ver.di 191 E. Analysis of the effects and opportunities of europeanisation 194 F. Concluding Remarks 205 ABBREVIATIONS 209 ANNEX I 211 BIBLIOGRAPHY 214 2 ABSTRACT This thesis examines and compares German and British trade union responses in a European context following the recent European enlargements which are unprecedented in the history of the European Union. In terms of labour law, a majority of the ten Central and Eastern European countries which acceded in 2004 and 2007 combine weak domestic labour protection systems with a high proportion of workers and enterprises keen to take advantage of their free movement rights under the European Treaty. This has created a climate of fear amongst workers and trade unions in old Member States that their economic and social position is being threatened by those workers and enterprises who may avail themselves of their rights under the Treaty in order to engage in ‘social dumping’. Historically, the European Union has sought to counteract these fears by ‘europeanising’ certain aspects of national legal systems in order to alleviate competition. However, the ‘europeanisation’ of different labour law systems has always proved problematic due to the socio-cultural context within which national labour laws have developed. Following the recent European enlargements, the debate on the role of the EU in ‘europeanising’ national social and legal practices has been revived. In particular, European enlargement has thrown up changed regulatory and opportunity structures for the social partners. These structural changes at a European level have occurred primarily as a consequence of an increase in the free movement of workers, services and establishment. Against this background, the purpose of this thesis is to undertake a comparison of the responses of German and British trade unions to the challenges posed by the recent European enlargements. A successful comparison and analysis of the responses of trade unions enables a determination of the impact that trade union responses may have on new Member State workers availing themselves of their free movement rights under the EU Treaty. There is an intense debate as to how, and if, social partners at a national and European level may be able to contribute to, or hinder, the protection of new Member State workers in Germany and the UK. Depending on how trade unions respond their contribution may be viewed as positive or negative. However, this thesis yields suggestions as to how trade unions could respond in order to facilitate the integration of new Member State workers into the host labour markets and proposes a new model for studying aspects of europeanisation. 3 ACKNOWLEDGEMENTS Writing this thesis would not have been possible without the help of several people. I am very grateful to my principal supervisor Professor Jo Shaw for her continuous help, support, encouragement and patience. She has been a constant source of inspiration and her intelligent and constructive comments were a great help in writing this thesis. I am also indebted to my secondary supervisor, Professor Douglas Brodie. I wish to thank him for his continuous help and positive encouragement. I am particularly grateful to my parents for the enduring love, help and patience which they have shown me; I especially wish to thank my mother for proofreading this thesis and my father for helping me find German sources. I would also like to thank Peter Alderdice for his continuous moral support and encouragement. His comments on individual chapters also helped me to form my thoughts and ideas. I have benefited from contributions, encouragement, discussions, comments and friendship from fellow PhD colleagues and administrative and academic staff at the University of Edinburgh. I am also grateful to Professor Kohte and his staff at the Universität Halle-Wittenberg and to Professor Weiss at the Universität Frankfurt for their help in researching the German side of my thesis. My stay in German would not have been possible without the financial support of the German Academic Exchange Service (DAAD) and the University Association for Contemporary Studies (UACES). I am also grateful to the British Federation of Women Graduates’s Funds for Women Graduates for funding my final year of study. I would like to thank Christian Zahn and Dr Ursula Polzer for their help in organising my case studies and the participants in the interviews which I conducted. Finally, I am grateful to my examiners, Professor Dagmar Schiek and Dr Rachael Craufurd-Smith for their comments on the final version of this thesis. 4 DECLARATION I declare that the contents of this thesis have been composed by me and they have not been submitted for any other degree or professional qualification. Rebecca Lisa Zahn: 5 CHAPTER ONE INTRODUCTION This thesis examines and compares German and British trade union responses in a European context following the recent European enlargements which are unprecedented in the history of the European Union. In terms of labour law, a majority of the ten Central and Eastern European countries which acceded in 2004 and 2007 combine weak domestic labour protection systems with a high proportion of workers and enterprises keen to take advantage of their free movement rights under the European Treaty. In addition, they have attracted large amounts of foreign direct investment which is mainly due to two characteristics: on the one hand, favourable industrialisation legacies, skill structures and a stable institutional environment 1; and, on the other hand, low wage levels and collective agreement coverage as compared to Western Europe 2. The Central and Eastern European labour law systems have undergone a process of enormous change since the end of the Cold War. Bronstein explains that “at the downfall of communism labour laws in all of these countries shared a number of patterns that related closely to the nature of the political and economic system.”3 Thus, labour law was structured around “the assumption that the overwhelming pattern of employment was based on a subordinated, permanent and full-time employment relationship, and that the work was mainly organised within the framework of large production units or large administration.”4 However, by far the biggest difference between the labour law systems of Central and Eastern Europe and those of Western Europe could be seen in the field of collective labour relations. Thus, “the shared pattern in Central Europe was the single-union structure. Union membership was quasi-compulsory, indeed necessary, for workers, given that unions were entrusted with the administration of a very large share of the welfare system.”5 As a result, unions were meant to “act primarily as a mechanism for transmitting and implementing policies and decisions taken by the state-party structure.”6 1 D. Bohle & B. Greskovits, ‘The state, internationalization, and capitalist diversity in Eastern Europe’ (2007) Competition and Change 89. 2 C. Crouch & S. Avdagic, ‘Organized economic interests: diversity and change in an enlarged Europe’ in P. Heywood, E. Jones, M. Rhodes & U. Sedelmeier, Developments in European Politics , Palgrave, Basingstoke, 2006. 3 R. Bronstein, ‘Trends and challenges of labour law in Central Europe’ in J.D.R. Craig & S.M. Lynk (eds.), Globalization and the Future of Labour Law , Cambridge University Press, Cambridge, 2006 at p. 194. 4 Ibid at p. 194. 5 Ibid at p. 194. 6 Ibid at p. 194. 6 Since then the Central and Eastern European labour law systems have undertaken a wave of reforms to enrich the content of labour law and to liberalise industrial relations 7 so as to establish: collective representation and collective bargaining structures [which reflect] the prevailing industry-based patterns in Western Europe. […] It should be observed, however, that such an approach has not yet been confirmed in practice, as in most Central European countries industry-based collective labour relations are insufficiently developed.