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SIPTU National Executive Council Statement on the Lisbon Treaty Referendum

Date Released: 03 Sep 2009

The National Executive Council of SIPTU met today to discuss the Lisbon Treaty and the forthcoming referendum.

(1) Global Economic Crisis

The Referendum on the Lisbon Treaty takes place against the background of the most serious global economic crisis since the 1930s.  The “Leave it to the Market” approach has been dramatically exposed over the last twelve months.  As a result, the case for social solidarity and properly regulated social markets, which render the business dynamic subject to the interests of the common good, is now clear for all to see.

(2) The Mirage Has Evaporated

Here in Ireland the mirage created by a decade of prioritising speculation over sustainable development has evaporated spectacularly with dreadful consequences for working people and their families.  We cannot anticipate the economic implications of the outcome of the referendum in that regard one way or the other.  In any event, we must not allow considerations of economic expediency to decide the issue if it is otherwise fundamentally detrimental to the interests of working people and their families in the longer term.

(3) Experience since EEC Entry

Until 2004, our experience since Ireland became a member of the EEC (as it was then known) in 1973 was almost universally positive.  Living standards, people’s rights at work and equality legislation improved dramatically.  We supported the Nice Treaty for all these reasons.  However, the picture has not been so universally positive since.  Many of the difficulties are actually due to the policies pursued by the Government here.  These issues can be addressed by electing an alternative Government with a strong Labour/Left component here next time.  Our analysis must focus on the aspects that arise directly in the context of the ratification, or otherwise, of the Lisbon Treaty itself.  Claims that a ‘Yes’ vote will result in the minimum wage being reduced to €1.84 per week or that Turkey would automatically be admitted to the EU, or that our daughters and sons could be conscripted into a European Army are absolute nonsense.  On the other hand, so also are the assertions that the Treaty is the best thing that ever happened or that it will be the end of the world if we vote ‘No’.  The issues at stake are much more subtle.

(4) The Social Market Economy

The European project emerged as a broadly democratic entity constructed on the basis of the post-War consensus between business and the Labour Movement.  It envisaged the social market economy which has been central to more than half a century of stability and peace in a Continent previously wracked by warfare.  However, over the past few years, there has been a noticeable drift towards strident free-marketeerism.  This has been reflected in a number of initiatives at the level of the EU Commission and judgements issued by the European Court of Justice (ECJ) on matters affecting workers’ rights.  Unless this trend is corrected it will sow division both between States and within them undermining the cohesion necessary for the continued success of the entire EU Project itself.

(5) The Government’s Own Survey

The extent of concern surrounding these matters was reflected in the results of the Millward Brown IMS Survey on attitudes to the Treaty which was commissioned by the Government last year: “when asked directly, respondents cited the issue of protection of workers’ rights as being “very important” more often than any other issue (of a defined set of issues) relating to Ireland and the EU.  Retaining control over public services in the future was similarly cited”. The key finding on workers’ rights has since been played down in Government and establishment circles.  The reason is obvious.  Recognising the issue would entail a requirement to act on it – and they are not prepared to do so.  Indeed, the Government has not even complied with its own undertakings on legislation to enhance employment protection.

(6) New Protocol

Action was taken on a number of other issues identified in the survey.  As a result, agreement was reached at the June meeting of the European Council on legally binding guarantees in respect of Defence and Neutrality, Taxation, and the Right to Life, Education and the Family.  This will be enshrined in a legally binding Protocol which will be attached to the Treaty if, and when, it is finally ratified.  It is important to note that this does not represent an amendment, merely a clarification.  However, it is not without substance as it makes it absolutely clear that these matters will remain within the exclusive remit of the Irish people to decide for ourselves.

It was also confirmed that all member states would continue to appoint a Commissioner to the EU Commission.  This does not amend the Treaty either.  (However, it does technically alter the proposition going before the people as it was previously envisaged that a rotation system would apply.)  The subject aroused a great deal of controversy last year.  However, in our view, it makes no material difference to working people one way or the other.

(7) Solemn Declaration

The June meeting of the European Council also agreed what is termed a “Solemn Declaration on Workers’ Rights and Social Policy”.  It confirms the “high importance” of workers’ rights and public services (in particular those relating to education and health).  Declarations such as this are of little significance as they are not legally binding.

The concern about workers’ rights is well justified.  ECJ Judgements, such as Viking, Laval, Ruffert and the Luxembourg case, have provoked consternation among trade unionists all over Europe.

It is important to recognise that the problems presented by these Judgements did not arise because of this Treaty.  They originate in previous Treaties.  They will still remain even if it is rejected.

The Treaty of Rome (1957) provides for “Four Freedoms” relating to the free movement of goods, capital, services and persons.  The provisions of an EU Treaty are “Primary Law”.  Consequently, in the event of a conflict between a citizen’s entitlement under any of these four, and another citizen’s entitlement otherwise, they take precedence.  This lies at the core of the problem.

Indeed, ratifying the Lisbon Treaty would actually improve the situation.  It would elevate the Right to Engage in Collective Bargaining and the Right to Take Collective Action, which are enshrined in the Charter of Fundamental Rights to that same level of “Primary Law” as the “Four Freedoms”.   In and of itself, this would not solve all the problems that have arisen under the ECJ Judgements but it would be a very important development for working people.   More is required but it would be a step in the right direction.

Other measures are also necessary.  Much can be done by updating the laws affecting workers’ rights in the member countries.  The “Posting of Workers Directive” requires improvement.  A “Social Protocol” as distinct from a “Declaration” recognising the high priority of workers’ rights is essential.  Ratification of the Treaty could assist in the attainment of these measures, and in any event, it certainly would not inhibit it.

(8) Social, Education and Health Services

The proposed change in the procedure for ratifying EU Trade Agreements with Third Countries or international organisations insofar as they relate to the field of trade in Social, Education and Health Services, is also a cause for justified concern.  Currently, trade agreements relating to these areas are decided by unanimity, i.e. each member state must agree.  The Treaty envisages decision by Qualified Majority Voting.  In other words, no one country would have the right to veto a proposed agreement.  Some trade unionists are concerned that this could lead to the privatisation of public services.  This apprehension deserves careful scrutiny.

The text of the Treaty itself otherwise provides extensive safeguards.  Unanimity would continue to be required if the proposed agreement risked seriously disturbing the national organisation of such services and prejudicing the responsibility of member states to deliver them.  Additionally, a legally-binding Protocol (see Appendix), further reiterates the discretion of member states in these matters.  Article 165 fully respects the responsibility of member states for the content of teaching and the organisation of education systems.  On Health, Article 168 restricts the role of the EU to complementing national policies.  It also respects the responsibilities of member states for the definition, organisation, management and delivery of services and the allocation of resources assigned to them.

In any event, there is of course no possibility of our present Government vetoing any deal to protect against privatisation.  Indeed, as is evidenced by the co-location hospital scam, they are already well ahead of the curve in this regard.  Moreover, if the Centre Right parties here continue to attract 80% of the vote, it is hard to envisage a future Government exercising such a veto either.  However, the political landscape is changing and it is possible that we could elect a Government with a strong Labour/Left component.  Equally, we should not discount the possibility that a progressive Centre/Left Government of another country would be prepared to exercise the veto.

Our legal advice is that the security of public services is not threatened by the text of the Treaty.  It is also fortified by the legally binding Protocol on Services of General Interest, and Article 36 of the Charter of Fundamental Rights.  Consequently, it is hard to see how the Government of any member country could be forced to privatise its public services against its wishes as a result of ratification. The outcome of the battle for the retention of high quality, publicly provided, services will not turn on it.  It will be decided by the balance of forces in each member state.

(9) The Charter of Fundamental Rights

Much has been made of the Charter of Fundamental Rights.  It does not extend existing rights.  However, it represents the consolidation of all the gains made by the Trade Union and Socialist Movement in Europe.  Its elevation to full Treaty status and thus part of “Primary Law” would be a vitally important development.  However, it would not provide the panacea for all our problems.  Those who prioritise the accumulation of profit over the interests of working people and the common good can be expected to challenge it on the grounds of interpretation, scope and applicability.  The outcomes on all these matters are always determined by the balance of forces in the political and industrial arena.

(10) Social Solidarity or Free Market Fundamentalism?

The Treaty reflects the tradition of the EU, which is based on the consensus which developed between Business and the Labour Movement in the aftermath of the carnage of the Second World War.  Consequently, the vision of the Trade Union and Socialist Movements for a truly civilised world based on Social Solidarity globally is reflected in it.  The Social Objectives and Instruments of the EU Treaties, including Lisbon, provide for it.  The global corporate agenda is also undoubtedly at play in Europe.  This envisages the creation of a minimally-regulated free-market power block and all that goes with it, for world trade purposes.  It prioritises the free market and competition.

If the Treaty is ratified, the relative importance of its free market and social dimensions will fall to be interpreted by those who hold office in the political institutions and on the ECJ in the fullness of time.  The outcomes will reflect their world view and outlook.  This, in turn, will be determined by the kind of Governments the people of the various member countries elect and by the relative strengths of the business lobby on the one hand, and trade union organisation on the other, from time to time.  In this regard, it would be very valuable to have the Charter of Fundamental Rights elevated to the status of ‘Primary Law’ along with the other Social Instruments by ratifying the Treaty.

However, if the peoples of Europe fall into a pattern of repeatedly electing Centre Right/Rightwing Governments (as has tragically been the case in this country since the foundation of the State), that will ultimately determine the character of Europe.  They will appoint their people to the political and judicial institutions which, in turn, will interpret the law in a manner which facilitates the “race to the bottom” to the detriment of working people and society generally.

(11) Prospects for a Better Outcome

Trade unionists on the ‘No’ side hope rejection will stop the project or perhaps result in a better Treaty.  Nothing is impossible, but in our view this is very unlikely.  We must also take account of the current balance of forces in the political arena.  Twenty-three countries have ratified already and the remaining three others, apart from ourselves, have resolved to do so.

It is not simply a case of saying ‘No’ this time and waiting for a better outcome.  We must also take account of the possibility of worse emerging.  The lessons of the collapse of unbridled free-marketeerism seem to have been learned in the USA and Japan, resulting in the election of the potentially most progressive administrations since World War II.  Tragically, the trend in Europe is heading the other way.  More Governments are now dominated by Centre Right parties than when the Draft Treaty was approved.  The Right also gained substantially in the recent elections for the European Parliament.  They are not going to sit back and allow a better Treaty from the point of view of working people to be formulated.

(12) The Right to Collective Bargaining

Last year, we withheld a recommendation in the hope of persuading the Government to legislate for an entitlement to Collective Bargaining which will become a “Fundamental Right” if the Treaty is ratified.  This would afford ordinary people some possibility of developing a counterweight to the awesome influence of business in the corridors of power.  By doing so it would afford people a right to participate thus strengthening our democracy.

The Government refused, contending that it should be agreed in the Social Partnership process.  This means the employers’ organisations will continue to enjoy a veto in the matter, and they know full well it will never happen.  Consequently, we now believe that this Government, or any future combination of the parties in it, will never legislate to give effect to the entitlement.  They will continue to follow a selective approach, picking the elements of the Treaties which favour business, and paying lip service to those from which workers would benefit.

However, since then, the Labour Party (which now stands a reasonable prospect of being a significant player in the formation of the next Government), has undertaken to do so if the Lisbon Treaty is ratified.  It has also declared its intention to enact legislation prohibiting discrimination against anyone seeking to exercise the right.  Moreover, it has also undertaken to enact all the other measures in respect of workers’ rights which are envisaged in the agreements the Government has failed to honour.  The Leader of the Party, Deputy Eamon Gilmore, has clearly set all this out in a speech delivered in Dáil Eireann on 24th June, 2009 and reiterated same when he addressed the ICTU Bi-annual Conference on 7th July 2009.

(13) A Century of Struggle

This trade union has been struggling for workers to have the right to participate in Collective Bargaining without fear of victimisation or discrimination for 100 years.  Article 40.6.1.iii of Bunreacht na hÉireann enshrines the right to organise in terms of “The right of the citizens to form associations and unions”.  However, our Courts have always interpreted it in a manner which restricts rather than facilitates it.  It is virtually meaningless without the right to Collective Bargaining.  Our legal advice is that, while it is by no means straightforward, the prospects of any legislation providing for it would be enhanced by the Charter of Fundamental Rights which is an integral part of the Treaty.

(14) Conclusion

We are enormously disappointed that the Government has chosen to ignore its own survey carried out in the aftermath of the last referendum which indicated that significant concerns in respect of workers’ rights caused a high percentage of voters to reject the Treaty.  Statements emphasising their value are worthless, without a tangible commitment to give effect to the “Fundamental Right” to participate in Collective Bargaining which is enshrined in the Treaty.  (This would also entail a prohibition on victimisation or discrimination against anyone seeking to vindicate it.)  Indeed, it has not even honoured its commitments on the introduction of legislation on employment protection which was agreed in the Social Partnership process.

However, the Labour Party has taken this issue seriously and has given a clear commitment to enact such legislation when it is next in Government.

As outlined earlier, we harbour a number of reservations regarding the Treaty.   We are particularly dissatisfied that the European Trade Union Confederation’s proposal for a Social Progress Protocol which would have addressed many of our stated concerns has not been acted upon.   However, in our analysis we are satisfied that the ratification of the Treaty, (including the Charter of Fundamental Rights), would not make matters worse overall.  Indeed, it has the potential to improve them.  Accordingly, and also in view of the Labour Party’s clear statement on Collective Bargaining rights, we believe the balance of advantage for working people and their families rests with ratification of the Treaty.

However, we will not be sharing platforms with the representatives of the Government parties.  Our agenda is not the same as theirs.  Our commitment is to the kind of Europe envisaged in the Social Clauses of the Treaty and in the Charter of Fundamental Rights, not in their strategy of implementing the aspects which reflect the priorities of the business lobby, while ignoring the rest.


APPENDIX

PROTOCOL

ON SERVICES OF GENERAL INTEREST

THE HIGH CONTRACTING PARTIES


WISHING to emphasise the importance of services of general interest,

HAVE AGREED UPON the following interpretative provisions, which shall be annexed

to the

Treaty on European Union and to the Treaty on the Functioning of the European Union:


Article 1

The shared values of the Union in respect of services of general economic interest within the meaning of Article 16 of the Treaty on the Functioning of the European Union include inparticular:

-         the essential role and the wide discretion of national, regional and local authorities in providing, commissioning and organising services of general economic interest as closely as possible to the needs of the users;

-         the diversity between various services of general economic interest and the differences in the needs and preferences of users that may result from different geographical, social or cultural situations;

-         a high level of quality, safety and affordability, equal treatment and the promotion of universal access and of user rights.


Article 2

The provisions of the Treaties do not affect in any way the competence of Member States to provide, commission and organise non-economic services of general interest.  





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