Court rules that examination fees do not violate negative freedom of association

In March 2001, the Swedish Labour Court issues its judgment in a dispute between the Swedish Building Workers' Union and the Swedish Construction Federation over the deduction from the wages of non-unionised workers of an "examination fee" paid to the trade union. The Court ruled that the fees did not violate the non-unionised workers right to "negative freedom of association" (ie the right not to join a union).

On 7 March 2001, the Labour Court (Arbetsdomstolen, AD) issued its judgment (Dom nr 20/01) in a case brought by the Swedish Construction Federation (Sveriges Byggindustrier, formerly Byggentreprenörerna) against the Swedish Building Workers' Union (Svenska Byggnadsarbetareförbundet, Byggnads). The judgment was the latest episode in a long-running dispute over so-called "examination fees" (granskningsavgifter) paid to trade unions in the building sector (SE9912109N) and their relation to the issue of a "negative right of association" - ie the right of workers not to join a union.

The main issue in the case concerned whether the deduction from five non-unionised workers' wages of an "examination fee" involved a violation of these workers' negative freedom of association, based on the Council of Europe's European Convention for the Protection of Human Rights and Fundamental Freedoms.

According to the provisions of the main collective agreement for the construction sector (Byggnadsavtalet), dating from 1976, 1.5% of the pay of all workers, including non-union members, is deducted at source. This represents an "examination fee" given as remuneration to the local trade union for conducting an examination - ie looking at the wage scales and other material that forms the basis for the payment of wages. The fee is administered and handed to the local union by the employer.

However, the employers contend that the fee should also be seen partly as a contribution to the trade union's ordinary activities. If this is the case, then making a compulsive wage deduction from non-unionised workers in favour of a trade union is a violation of those workers' right not to join a trade union - derived from the European Convention - comparable to forced membership of Byggnads. This was the position taken by the employer involved in this case, LK Mässinteriör AB, supported by the Swedish Construction Federation. After fruitless negotiations with Byggnads and the local trade union (Byggnads, avdelning ett, Byggnadsettan), the employers' federation took the case to the Labour Court.

According to Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms: "everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests." This provision clearly provides for a positive right to freedom of association, but has however been used as a basis for claiming a right to negative freedom of association in similar cases brought before the European Court of Human Rights (DK9802153F). However, in the opinion of the Swedish Labour Court, the interpretation of the section 11 in cases relating to the violation of negative rights has so far been restrictive.

In its ruling, after a long legal explanation, the Labour Court states that the deductions from pay for examination fees cannot be considered as equivalent to forced membership of a trade union. The deductions cannot be seen as exposing the unorganised workers to pressure or influence to join the trade union. There has thus been no violation of the workers' negative right to freedom of association, says the Court, asserting that the European Convention cannot be given any other interpretation. Two members of the seven-person Court (both employer representatives) had dissenting opinions. They stated essentially that the unorganised workers' right to choose not to join a trade union had been violated. The workers were forced to make financial contributions to a trade union to which they did not want to belong and which might be in conflict with their interests and opinions.

The Court has perhaps made a very guarded interpretation of Sweden's obligations under the European Convention. There are possibilities to interpret the meaning of Article 11 more widely, according to several critical labour lawyers. There is thus reason to believe that the issue of the negative right of association may reappear in the public and legal debate, and in the Labour Court.