Helsinki (10.01.2003 - Daryl Taylor) With particular reference to the situation of migrant workers, SAK is proposing that trade unions should have locus standi to defend employees whose rights have been infringed. A parallel proposal has also recently been debated in ethnic relations, whereby organisations would be entitled to file and pursue legal claims on behalf of the victims of ethnic discrimination. The main argument for these proposals is that the situation of the victim may, for practical or psychological reasons, be so disadvantaged that the victim is either unable or unwilling to initiate and carry through a difficult legal process.
The SAK proposal involves a significant shift in current procedures for settling legal issues arising from employment in Finland. These issues divide into questions of public and private law. On the one hand, employers are criminally liable for certain aspects of employment. The State authorities can prosecute an employer for defaulting on such liabilities, whether or not any worker was injured by the default, and even if the employees concerned oppose the prosecution.
On the other hand, an employee may file a civil claim against the employer for breach of a contract of employment. This includes cases in which the contract fails to meet the minimum standards guaranteed to employees by law or collective agreement. However, the initiative for a civil action must come from the employee, and no such action can be pursued against the employee’s wishes.
SAK is now suggesting that trade unions should be entitled to initiate and pursue civil lawsuits on behalf of employees. However, it should be noted that this already happens. Any trade union is free to assist any worker (even one who is not a union member) in pursuing a lawsuit, provided that the trade union secures the necessary authorisation from the worker concerned. The only really new element in the SAK proposal is the idea that the trade union should be entitled to pursue the matter even though the employee opposes the action.
This last possibility is quite extraordinary, and leads to some odd consequences. Not the least of these is the point that the aim of a civil lawsuit is to compensate the injured party. An injured party who opposes the lawsuit can refuse the compensation and repay any damages to the employer. Such a procedure would render the lawsuit largely pointless.
My personal feeling is that the SAK proposal illustrates a certain tendency to paternalism where disadvantaged minorities are concerned. Migrant labour abuse and the unwillingness of victims to claim their rights are largely structural problems of empowerment. Paternalist approaches do not resolve such problems. If anything, they merely make them worse. Instead of pursuing litigation that the injured party opposes, we should ask why the injured party prefers not to seek a remedy, and address this problem.
I further suspect that the SAK proposal is motivated less by concern for the migrant worker and more by the desire to stabilise the working conditions of Finnish workers so that these are not undermined by cheap foreign labour. The objective is understandable, but the likely outcome will be to drive migrant workers away from the trade unions.