INDUSTRIAL ACTION
| DENMARK |
| AKTION INDUSTRIAL ACTION |
Generic expression referring to forms of action taken as part of an industrial dispute. The term kampskridt is used synonymously. Except for those holding the status of tjenestemand (see "crown servant" ), Danish law recognizes the freedom to take action collectively in support of negotiations with the purpose of arriving at a collective agreement (see below, Action in furtherance of a collective agreement ). This means that such freedom is available in cases where no collective agreement exists either because an employer has refused to reach an agreement, or in situations where an existing agreement has terminated or expired. In all other cases (i.e. where a collective agreement is in force) the peace obligation prevents the taking of industrial action except in certain specific circumstances. For employees, the legal presumption is that taking industrial action terminates the contract of employment. Nevertheless, the existence of a general right to bargain means that an employer who is unwilling to bargain in order to arrive at an agreement runs the risk of being confronted by industrial action by employees.
The general rules of the system of law impose certain external limits on what constitutes lawful conduct in connection with industrial disputes. General limits on the freedom to take industrial action are imposed, for example, by the provisions of the Penal Code, one instance being the prohibition on erecting a physical blockade. Also, in accordance with general legal principles certain forms of industrial action (such as a public campaign inciting customers to boycott a particular enterprise) attract liability to pay damages. Furthermore, in many cases the parties establishing a collective agreement agree on specific rules that are to govern subsequent disputes, including both the procedures to be followed in their event and the types of failure to agree that may in any case lead to a dispute (see below, Action by parties covered by an existing collective agreement ).
The forms of action most commonly used by employees in Denmark in connection with an industrial dispute are the strike (non-performance of work) and blacking of employers (a union ban on their members seeking employment with employers who are the subject of industrial action: union members who ignore such a prohibition may lose union membership or be fined). Opposing action on the employer's side may take the form of a lock-out (denial of the possibility of work to non-striking employees) and blacklisting (an instruction to other employers within the same employers' association not to employ workers who are taking part in strike action). The deployment of these tactics can quite rapidly have the effect of generalizing a strike beyond the enterprises where it originated. All such forms of action by either side are referred to generically as arbejdsstandsning (stoppage of work). Other forms of action are sometimes taken, however, such as the work-to-rule . In practice, employers in Denmark confronted by a strike exercise their legal right not to re-employ their employees until the dispute is terminated and the new agreement is concluded. This means, in effect, that there are few brief stoppages in Danish industrial relations: a lawful strike continues until a new agreement is reached.
The rules on industrial action differ according to whether it is taken with the aim of pressing for the conclusion of an agreement or taken by parties already covered by an existing agreement:
1) Action in furtherance of a collective agreement. No generally applicable rules are laid down in Danish law on industrial action aimed at supporting demands for the conclusion of a collective agreement with an employer. Not even §10 of the special White-Collar Workers Act (Funktionærloven), which confers on the employees it covers (see employee categories ) the right to bargain with their employer on pay and conditions, specifies that these negotiations must necessarily lead to an agreement. Employees are, nevertheless, free to organize collectively and as a matter of principle possess the freedom to exert collective pressure through their organization by individually giving notice of resignation and depriving the enterprise of its workforce. Only those actually holding the status of tjenestemand in the public sector are debarred from initiating a stoppage of work with the aim of reaching an agreement. A trade union may, however, lawfully initiate a dispute aimed at concluding an agreement only within its natural domain: it must therefore have what is called an occupation-related interest in terms and conditions of employment in the area of coverage concerned. The strength of the pressure applied must also be in reasonable proportion to what the union is demanding. Industrial action in furtherance of a collective agreement must also observe the general limits imposed by the system of law to determine what is admissible and inadmissible as part of an industrial dispute (see above, General limits on the freedom to take industrial action ).
Organized employers are automatically bound by the agreement concluded by the employers' association -- and under the rules of the associations are normally obliged to belong to all the employers' associations in the various occupational areas covered by the enterprise. When non-organized employers are confronted with a demand for the conclusion of a collective agreement, they normally either join the relevant employers' association or adopt the terms of the relevant existing agreement by concluding what is called an adoption agreement . This is because it is difficult for an individual employer who has no access to financial support from an association's fighting fund to withstand a strike within the enterprise, let alone the disruption of business opportunities, supplies and sales that can be caused by action taken in sympathy or solidarity (see secondary/sympathy action ).
2) Action by parties covered by an existing agreement. Where the parties concerned are covered by a collective agreement it is usually unlawful under its provisions to initiate the stoppage of work while the agreement is in force: the peace obligation applies. For a dispute to be initiated lawfully, the agreement must therefore be formally renounced and the period of notice of its termination must have expired (see termination of collective agreements ).
It is also usual for agreements to contain specific rules on the notice to be given of stoppages and provisions on the procedure for taking the decision to initiate such action within the organization concerned. For example, §2 of the Basic Agreement between the DA and LO (see basic agreements ) states that the decision to initiate the stoppage of work must be approved by a body authorized to do so under an organization's statutes by the majority defined therein, and that notice must be duly given to the opposite party to the agreement (see notice of industrial action ). A copy of the notice must be sent to the official conciliator, who then has the discretion to intervene (see Official Conciliation Service ). The rules on notice of industrial action must also be observed when an organization which is bound by the peace obligation exercises its right to give notice of secondary action to be taken in support of a sister organization. They do not, however, apply in cases where the stoppage of work is permitted for the protection of employees (for example, when the employer fails to pay employees (referred to as suspension of payment) or when considerations of the life, honour or welfare of employees make it necessary).
Where the parties concerned are covered by a collective agreement, there is no obligation to observe the rules on notice of termination of the individual contract of employment (despite the fact that industrial action normally terminates the contract) when unionized employees are called on to take action in a dispute with due observance of any collectively agreed rules on giving notice of industrial action. The latter rules take precedence over the obligation to give notice of individual termination (cf. the principle stated in §2(10) of the White-Collar Workers Act ). However, if an agreement is silent on the subject of notice of industrial action the relevant individual periods of notice of termination must be observed before taking any such action. Whether, in such cases, the union that is initiating the dispute may give this notice on all its members' behalf or whether it has to collect individual notice from each of its members for combined delivery to the employer in the event of a breakdown of negotiations, depends on the rule-book of the particular union. One problem arising here is the fact that many unions were originally created without the purpose of concluding collective agreements, which means that their rules do not include the right to call on members to take industrial action. In such cases the periods of notice to which individual employees are bound must be observed.
The lawfulness of industrial action may also be restricted otherwise than by the above rules on the procedure for its initiation. If the parties concerned are covered by a basic agreement, for instance, even after the normal notice of termination of the agreement has been given and the period of notice has expired no industrial action may be taken in order to achieve something that is contrary to the basic agreement. Thus, where the parties are covered by the Basic Agreement between the DA and LO industrial action may not be initiated with the aim of disrupting the principles governing the scope of the employer's managerial authority as laid down in the agreement. It is also unlawful, where the parties are covered by a basic agreement, to initiate a stoppage with the aim of establishing an agreement relating to work that is usually covered by an agreement concluded by a sister organization under the same basic agreement.
When a lawful stoppage is initiated in accordance with the relevant rules, the employees involved in the dispute (i.e. those who are members of the union concerned) cease in principle to have any connection with the employer. In other words, their employment relationship is formally deemed to be terminated and the question whether they are to be re-employed and retain their length of service depends on the agreement that is reached in resolving the dispute. Usually, however, such agreements contain what is called a no-detriment clause , stipulating that the injurious consequence of initiating industrial action will not take place when such action comes to an end, i.e. that the employees concerned are to be re-employed in their former jobs as if their employment had not been interrupted (a form of re-employment known, strictly, as "reinstatement" in English). Similarly, their statutory rights are (as regards both the employer and the public authorities) then deemed to have been merely suspended. The dispute is viewed in the same light in relation to any benefits paid to them either by virtue of particular situations (such as sickness benefit under the Sickness and Maternity Benefits Act and unemployment benefit under the Unemployment Insurance Act) or within the union context. Such benefits are suspended on the basis of a philosophy of neutrality during lawful industrial disputes. On work during a dispute, see work affected by a dispute .
Please note: the European industrial relations glossaries were compiled between 1991 and 2003 and are not updated. For current material see the European industrial relations dictionary.