Arbitration settles dispute over 'missed time'

In September 2004, a Danish industrial arbitration tribunal ruled in a dispute over a provision in a new collective agreement concluded in the industry sector in spring 2004. The agreement provides that, after an unlawful strike, employees can be compelled to do additional work on up to 14 days in order to make up for the company's lost production - without receiving an overtime rate of pay. The tribunal found that such 'missed time' working should be considered as overtime work and not as ordinary working time. Except for premium rates of overtime pay, all other provisions connected with overtime laid down in the collective agreement (eg on notice periods) apply to such cases.

Extra hours worked by employees after an unlawful strike in order to make up for production lost due to the strike count as overtime work and not as ordinary working time. Except for premium rates of overtime pay, all other provisions connected with overtime laid down in the relevant collective agreement still apply. This was the decision made in September 2004 by an arbitrator (a Supreme Court judge) at an industrial arbitration tribunal in a dispute over the interpretation of a much debated rule set out in private sector collective agreements. The decision ends a dispute concerning the interpretation of this 'missed time' rule between the Central Organisation of Industrial Employees in Denmark (Centralorganisationen af industriansatte, CO-industri) and the Confederation of Danish Industries (Dansk Industri, DI). This dispute broke out in summer 2004, only a few months after the relevant rule was agreed.

Much disputed rule

In bargaining over the conclusion of new industry-wide collective agreements in the private sector in early spring 2004, it was agreed that after an unlawful strike employees can be compelled to work extra on up to 14 days in order to make up for the country's lost production - without receiving an overtime rate of pay. This 'missed time' rule, as it was called, was much debated and one of the last hurdles to be overcome before a final compromise settlement for the whole bargaining round could be signed between the central organisations, the Confederation of Danish Trade Unions (Landsorganisationen i Danmark, LO) and the Danish Employers’ Confederation (Dansk Arbejdsgiverforening, DA) (DK0403103F). It was the members of the General Workers’ Union (Specialarbejderforbundet i Danmark, SiD) and the National Union of Food and Allied Workers (Nærings- og Nydelsesmiddelforbundet, NNF) in particular that were against the rule. Consequently, it was these unions' members who, in the ballot on the overall compromise, voted 'no' by a significant majority. In spite of this, the settlement was accepted by a majority of all those union members voting in the combined ballot (DK0405102F).

Nevertheless, the rule was still a source of disagreement, and during summer 2004 it became obvious that CO-industri and DI - the partners in the key industrial sector - did not agree on how the rule should be applied in practice. Consequently, their disagreements were referred for settlement by an industrial arbitration tribunal (faglig voldgift) according to the standard rules for handling industrial disputes in Denmark.

Ruling

The central element of the arbitrator's September ruling (which essentially supports CO-industri's view) is that working to cover production that has been lost in connection with an unlawful strike is overtime work and should not be dealt with as ordinary working time. Only the premium rate of pay usually paid in connection with overtime work does not apply to cases of 'missed time' working. All other collectively agreed rules on overtime (TN0302101S) still apply. Thus, notice must be given according to the normal rules of notification, which give individual employees the right to abstain for personal reasons - this could be due to sickness or because the employee is beginning a holiday after the termination of the strike. Rules on working in shifts and at weekends must also be observed - thus, if missed time working involves shifts, staggered hours or weekend working, the relevant allowances must be paid. Only the overtime pay premium is not applied. The arbitration decision also made it clear that the period of missed time working cannot be prolonged. For example, if an employee goes sick or goes on holiday five days into the 14-day period of missed time working, that employee will not have to work the remaining nine days of missed time after returning to work. This part of the ruling is important since this issue could be subject to many disputes, because it is not clearly dealt with in the agreement.

A company that has been affected by an unlawful strike is allowed to implement the missed working time rule without being obliged to document that it has suffered a loss of production because of the work stoppage. However, the arbitration ruling states that employees are entitled to demand the overtime premium for hours they have been compelled to work according to the missed time rule, if they are subsequently able to prove that the unlawful work stoppage did not result in loss of production that necessarily had to be made up by overtime working.

Commentary

Provisions on missed time are not new in the industry sector collective agreement, being covered in the clauses about overtime. However, the provisions on missed time in connection with unlawful strikes - ie strikes in breach of the collective agreement - were introduced only in the 2004 agreement, although it had earlier been accepted by CO-industri that unlawful strikes count as missed time. The present agreement states that 'an unlawful work stoppage is to be regarded as missed time from the beginning of the work stoppage' and that, when the missed time is due to an unlawful work stoppage no overtime premium is paid before the missed hours are made up by the employees by working outside their normal working time. The employer can give notice of the overtime work according to normal rules, to be performed within 14 days of the first day back at work after the strike.

Because of this provision, many members of SiD and NNF, which have often used short strikes in breach of the collective agreement as a weapon in disputes with employers, voted against 2004's final compromise settlement. The slaughterhouse workers organised in NNF are well known for using this tactic (DK0301105F). The majority of 'no' votes in these unions in the ballot was a clear sign of dissatisfaction. Seen in this perspective, the outcome of the arbitration process came at an opportune moment for the leaders of CO-industri, so shortly after the ballot. The decision of the industrial arbitration tribunal has also underlined the fact that work covering missed time is considered as overtime work and that the only exception to the normal rules concerning overtime is that missed hours working due to unlawful work stoppages does not attract the overtime pay premium. (Carsten Jørgensen, FAOS)