A year ago, a ruling by the European Court of Justice (ECJ) on the legitimacy of lower wages for cross-border workers on Austrian trains made the headlines. Hence, vida, the trade union representing workers in the transport and service industries in Austria, the European Transport Workers' Federation (ETF) and the AK hosted a Webinar on 30 November 2020 to discuss the significance of the ruling for the fight against wage and social dumping in the transport sector.
The EU Posting of Workers Directive regulates the working conditions for cross-border employment and shall ensure equal pay for equal work at the same place. That in particular road transport does not always observe this principle has been a well-known fact even before the Coronavirus crisis. A year ago, an ECJ ruling concerning a catering company working for the ÖBB also made the headlines.
“Henry am Zug” case
The ECJ ruling concerned the catering company “Henry am Zug”, which from 2012 to 2016 operated among other on the route between Budapest and Munich and paid Hungarian employees far below the Austrian collective agreement. Those employed under Hungarian law, earned with only 500 Euro 1000 Euro less than their Austrian colleagues, even though the majority of their working hours was spent in Austria. Eventually, the case came before the ECJ in whose opinion, however, the company did not infringe against EU law. In its grounds for the judgement, the ECJ stated that in cases of services on international trains, sufficient connection to the territory of the crossed Member State has to exist, but this had not been the case here. To what extent in the case of the catering company “Henry am Zug”, which is operating on Austrian trains, there is no sufficient connection to Austria, is difficult to understand. However, that is exactly what the ECJ argued in its grounds for the ruling, stating that due to start and finish of work in Hungary, there would be no sufficient connection with Austria. Based on these findings, the ruling represents a bitter blow for the fight against wage and social dumping in Europe.
Solidarity across country frontiers and sectoral borders needed
Legal experts, participating in a discussion within the scope of a joint event by vida, ETF and AK Vienna, demanded among other for the ECJ’s evidentiary hearing to be improved. It would make sense if the ECJ – in cases with employment reference – would seek greater involvement of the European Labour Authority (ELA). The ELA could also play an important role regarding the control of compliance with labour rights – so far, rail transport does not have controls of working hours and rest periods, which could be comparable to those in road transport.
Joining forces in the fight against social and wage dumping is a necessity in the entire transport sector. According to Cristina Tilling, Political Secretary for the Road Transport Section in the European Transport Workers’ Federation (ETF), the rail sector could assume a leading role. In many Member States, companies close to or owned by the state are involved in rail transport. This obviously increases the chances to find a sympathetic ear when it comes to social dialogue. This should be used to advance demands in relation to the entire transport sector.
AK demands improvement of social rights
The AK joins the demands of ETUC for a Social Progress Protocol, based on which social fundamental rights will be improved and put on an equal footing with market freedoms. Doing so could counteract the current tendency of European jurisdiction to give entrepreneurial freedoms precedence over social rights. According to Sylvia Leodolter, Head of Environment and Transport Department AK Vienna, the right to equal pay for equal work at the same place requires greater effort – not only in the interests of workers. After all, wage and social dumping is a threat to a strong, united Europe and would in the end also be a danger to the European project as a whole.
A&W Blog: “Henry am Zug” – a strange ruling by the ECJ (german only)