Trade union organisations have criticised a recommendation by an advocate general of the European Court of Justice that the European Union’s recent adequate minimum wage directive be annulled its entirety.
In a case taken by Denmark, supported by Sweden, Nicholas Emiliou, found that the European Commission and European Parliament had exceeded their authority by adopting the directive which is intended to provide stable mechanisms for updating and increasing national minimum wage levels across the EU.
A key element, intended to involve social partners in the process, is the promotion of collective bargaining, something unions in Ireland saw as offering a pathway to growing membership in the private sector, where participation rates have declined markedly over the past few decades.
They had hoped the Government would pass legislation as part of the transposition process that would have made organising in workplaces easier and potentially have encouraged employers to sign up to sector-wide agreements.
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Instead, the Government decided no legislative measures were required to transpose the directive but it is still required under its terms to draw up an action plan for the promotion of collective bargaining by October 1st of this year.
[ Government in breach of obligations on transposition of EU directive, Ictu saysOpens in new window ]
Mr Emiliou found that while the commission and parliament had adopted the directive in accordance with provisions of the treaty on the functioning of the EU which allow for the setting of minimum employment standards they had exceeded their competence by failing to heed exclusions relating to pay and the right of association.
He ordered the commission and parliament to pay Denmark and Sweden’s costs in the case.
Reacting to the decision, Irish Congress of Trade Unions general secretary Owen Reidy said the organisation was “appalled” by the opinion in relation to what he described as “the most significant and far-reaching workers’ rights directive in decades”.
The European Trade Union Confederation, meanwhile, said the opinion had failed “to take into consideration, not only the overall objective of the directive of avoiding unfair competition on the basis of low wages, but also a number of legal precedents supporting the EU’s competence to regulate on aspects of protecting pay.”
Prof Gavin Barrett of the Sutherland School of Law at UCD said the opinion was “somewhat surprising,” observing that, among other factors, “prior to this opinion, the view was widely held that if EU legislation did not actually set the level of pay, and this legislation doesn’t, it would be acceptable”.
“The matter remains finely balanced. The court might follow the advocate general Emiliou – but I would not be one bit surprised if it does not. It remains to be seen which way it will jump.
He said a decision from the court could normally be expected in about six months.
The Department of Enterprise, Trade and Employment was approached for comment.
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