European Trade Union Institute Bd du Roi Albert II, 5 1210 Brussels Belgium Tel.: +32 (0)2 224 04 70 Fax: +32 (0)2 224 05 02 [email protected] www.etui.org ..................................................................................................................................... German and British labour law in a European context following European Union enlargement — Rebecca Zahn ..................................................................................................................................... Report 126 D/2013/10.574/02 € 15 ISBN: 978-2-87452-281-9 German and British labour law in a European context following European Union enlargement — Rebecca Zahn Report 126 european trade union institute Dr Rebecca Zahn is Lecturer in Law at the University of Stirling. The author would like to thank the German Academic Exchange Service (DAAD) and the University Association for Contemporary European Studies (UACES) for their generous financial support towards conducting the case studies. Brussels, 2013 © Publisher: ETUI aisbl, Brussels All rights reserved Print: ETUI printshop, Brussels D/2013/10.574/02 ISBN 978-2-87452-281-9 (print version) ISBN 978-2-87452-282-6 (pdf version) The ETUI is financially supported by the European Union. The European Union is not responsible for any use made of the information contained in this publication. Contents Introduction ................................................................................................................................................ 5 1. The ‘new’ Member States and the challenges of enlargement ................................ 7 2. The legal framework – the transitional measures ......................................................... 9 3. The effects of European enlargement .............................................................................. 12 4. The national context ............................................................................................................... 17 4.1 United Kingdom ......................................................................................................................... 17 4.2 Germany ........................................................................................................................................ 19 5. Trade unions and migrant workers ................................................................................... 24 6. The European influence ......................................................................................................... 30 7. The case studies ........................................................................................................................ 33 7.1 UNISON ......................................................................................................................................... 34 7.1.1 Responses to enlargement and the transitional arrangements ................................ 35 7.1.2 Responses to new Member State workers ........................................................................ 35 7.2 Ver.di .............................................................................................................................................. 39 7.2.1 Responses to enlargement and the transitional arrangements ................................ 40 7.2.2 Responses to new Member State workers ........................................................................ 42 7.3 Level of cooperation ................................................................................................................. 44 7.3.1 Ver.di – UNISON ........................................................................................................................ 44 7.3.2 Within and through the ETUC ............................................................................................... 45 7.4 Analysis in the context of national legal frameworks .................................................. 47 7.4.1 UNISON ......................................................................................................................................... 47 7.4.2 Ver.di .............................................................................................................................................. 50 7.5 The European influence ........................................................................................................... 52 8. Conclusion .................................................................................................................................. 56 References ................................................................................................................................................ 57 Report 126 3 German and British labour law in a European context following European Union enlargement Introduction This report examines and compares German and British trade union responses, in a European context, to the European Union enlargements in 2004 and 2007 which are unprecedented in the history of the European Union. The report is based on research carried out between 2007 and 2010 for a PhD thesis at the University of Edinburgh. It outlines a comparison of the responses of German and British trade unions to the challenges posed by the recent European enlargements, in particular the arrival of new Member State workers and the impact that they have had on trade unions in those countries. Germany and the UK were chosen primarily for the reason that their trade unions are facing similar problems following the recent European enlargements. They are both suffering from a decline in membership and a loss of influence in collective relations. In addition, trade unions in the two countries are adopting similar roles within their respective national labour law systems, as they respond to the problems which they are facing. Unions in both Germany and the UK are struggling to find ways to deal with the consequences of the recent European enlargements and, in particular, the arrival of new Member State workers. Their responses to these problems are producing different outcomes and it is argued that, given the similar problems which trade unions in both countries are facing, they could learn from each other's experiences and would benefit from a comparison. In terms of method, the report combines an analysis of law and policy in theory and in practice through an examination of the relevant literature with a focus on specific trade unions in order to provide a thorough examination of how trade unions are responding within their legal systems to the challenges of European enlargement. This allows for a determination of how trade unions can use law and the opportunities that law has to offer them to better respond to changing regulatory and opportunity structures existing at a national and European level and to successfully integrate migrants into their host labour markets following the European enlargements. Report 126 5 German and British labour law in a European context following European Union enlargement 1. The ‘new’ Member States and the challenges of enlargement In terms of labour law, a majority of the ten Central and Eastern European countries which acceded to the EU in 2004 and 2007 display a combination of weak domestic labour protection systems with a high proportion of workers and enterprises keen to take advantage of their free movement rights under the Treaty on the Functioning of the European Union (TFEU). In addition, these countries have attracted large amounts of foreign direct investment, largely as a result of two main characteristics: on the one hand, favourable industrialisa tion legacies, skill structures and a stable institutional environment; on the other hand, low wage levels and collective agreement coverage as compared to Western Europe. The Central and Eastern European labour law systems have undergone a process of enormous change since the end of the Cold War. Bronstein (2006: 194) 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.’ 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’ (Bronstein 2006: 194). 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 admin istration of a very large share of the welfare system’ (Bronstein 2006: 194). 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’ (Bronstein 2006: 194). Since then the Central and Eastern European labour law systems have been subject to a wave of reforms designed to enrich the content of labour law and to liberalise industrial relations 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