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Victory for the Finnish Electrical Workers' Union in EU Court of Justice

| Text: Kerstin Ahlberg, editor EU & Arbetsrätt

”6 – 0 to the Finnish Electrical Workers’ Union!” ”The greatest thing to have happened since the Laval judgement!” Reactions from the employees’ side were exuberant when the Court of Justice of the European Union announced its preliminary ruling in the case concerning 186 Polish electricians who had been posted to Finland.

The electricians claim they have not been paid according to the Finnish universally applicable collective agreement.

The case touches on two fundamentally important issues. Firstly, did the Finnish trade union have the right at all to bring the posted workers’ case to a court of law? Their employer claimed it could not. But of course, answered the EU Court of Justice, which decided that preventing the Electrical Workers’ Union from representing the employees would be in breach of the EU’s directive on the posting of workers and the EU’s charter of fundamental rights.

What does the minimum rates of pay comprise?

The other major question in this case is which of the benefits in the Finnish collective agreement for the electrics and building installation trade are included in the minimum rates of pay that the Polish company must pay its employees. The directive on the posting of workers introduces certain frameworks, but within these member states can decide what the minimum rates of pay comprises.

And that could be many things, according to the EU Court of Justice. Firstly, the host member state decides how the minimum rates of pay are calculated. The collective agreement involved in this case, for instance, divides workers into wage groups and stipulates a minimum hourly wage or piece rate for each group. 

As long as the division into groups and the wage calculation is carried out in accordance with binding and transparent rules, the foreign company must follow them. Daily allowances can also be included in the minimum rates of pay, if these are paid on the same terms to workers who are posted from a different country as for those posted within their country. 

Same issue as for Norway’s shipbuilding case

The case is about terms in a certain collective agreement, and wage structures in other collective agreements might look very different. But in principle this covers the same ground as the Norwegian “shipbuilding case” which was decided by Norway’s Supreme Court in 2013, leading to a complaint from the EFTA Court. There is disagreement in Sweden too over what the term minimum rates of pay in the directive on the posting of workers means.

With the new judgement from the EU Court of Justice it is clear that what the parties define as minimum levels in their collective agreements for different categories of workers and working tasks, also applies to posted workers, as long as the rules are clear and binding so that they are applied equally to them and to domestic workers.

Equally important for Nordic trade unions is the EU Court of Justice’s message that they cannot be prevented from representing workers who have been posted here, in just the same way as they represent domestic workers. 

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