Swedish sympathy action for Danish workers challenged in the Labour Court

During the major strike in Denmark in April-May 1998, the Nordic airline companies tried to reroute their flights from Copenhagen to Swedish airports. However, as a result of sympathy action taken by members of the Swedish Transport Workers' union, the flights had to be cancelled. Swedish employers will now go to the Labour Court and seek to have the industrial action ruled as unlawful.

The major strike in Denmark's private sector in April-May 1998 (DK9805168F) indirectly caused a dispute in Sweden. When the SAS airline tried to reroute its flights scheduled for Copenhagen to Sweden, the Swedish Transport Workers' Union (Svenska Transportarbetareförbundet, Transport) notified SAS and the catering company Gate Gourmet on 1 May of its intention to impose a blockade which was due to begin seven days later. Transport workers at Arlanda airport refused to load and unload luggage and refuel the rerouted aircraft before the blockade was due to take effect. Consequently, SAS had to cancel several long-distance flights.

The Swedish Air Transport Industry Employers' Association (HAO Flygbranschens arbetsgivareförbund, HAO Flyget) immediately brought a case against Transport in the Labour Court. It claimed that the boycott amounted to unlawful industrial action and asked the Court for an injunction to order the trade union to cease its action, or pay a fine of SEK 15 million. The Danish strike, as well as the Swedish workers' sympathy action, ceased on the very day that the court proceedings were due to take place. HAO Flyget had to withdraw its claim, but only to draw up another claim for compensation.

No individual right to strike

In Sweden, industrial conflict and industrial peace has traditionally been a matter for employers and trade unions alone. The Swedish Constitution states that: "associations of employees and also employers and employers' associations have the right to take industrial action to the extent that it is not prohibited by law or by contract." This means that the right to take industrial action on the employees' side belongs exclusively to the organisation, and that individual employees have no right on their own to embark on industrial action.

Parliament has been reluctant to regulate conflict and peace in the labour market. The rules are to be found in the Act on the Joint Regulation of Working Life (or the Co-determination Act, MedbestŠmmandelagen) which regulates the conduct of employers and trade unions only according to very loose principles. It stipulates that as long as they are bound by a collective agreement in force, industrial action aimed at changing the agreement or its interpretation is prohibited. The Act also forbids industrial action which is aimed at assisting another party which is not itself permitted to take industrial action due to law or contract. Otherwise - that is, when the primary action is legal - sympathy strikes and blockades are permitted as long as they are decided in line with trade union procedures.

However, the trade union or the employers' association has to give a warning of at least seven days of any proposed industrial action, providing that it does not involve "valid hindrance" to do so. This exception is intended for cases where such proposed industrial action would be meaningless if it had to be postponed, and it is mostly used to impose blockades against ships which are in port for only a very short time.

Individual right to stay neutral?

In the present case, both the union and the employers' association seem to consider the Danish strike as the primary action, and as such, lawful industrial action. It is thus possible for a Swedish union to take sympathy action. The essence of the employers' association case is that the union took immediate action without regard to the stipulated seven days' warning period.

Jonas Bernunger, head of HAO Flyget, claimed that: "The union had given a warning of a sympathy blockade but the action was put into effect immediately." Transport, however, claims that those who refused to work with the rerouted flights only made use of their individual right to stay neutral in relation to the Danish strike. "There is a right for an individual employee to refuse to do work which would otherwise be done by someone else who is on strike. But it can be difficult for an individual to decide if work is affected by the strike or not. Therefore we advise our affiliated unions to decide for themselves on whether to impose blockades," stated Dan Holke, legal adviser to the Swedish Trade Union Confederation (Landsorganisationen,LO).

The employers deny that there is such a thing as an individual right to stay neutral. Even If the Labour Court agrees with the employers on this point, Transport also claims that there was "valid hindrance" to adhering to the requirement for seven days notice in this case, as it is "just as easy to move an aircraft as a ship". Thirdly, Transport claim that the need to adhere to the stipulated notice period is in any case only an minor breach of procedure. It does not make the boycott itself illegal, the union claims.

The outcome of the case will probably not be settled until 1999.

Commentary

Legislation and the rules of industrial conflict have evolved within the Swedish industrial relations tradition. As the economies of EU Member States become increasingly integrated, industrial action will involve secondary parties in other countries to an increasing extent, and sympathy disputes of this kind will become much more common. (Claes Leo Lindwall, NIWL)

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