The practice of closed-shop agreements under pressure

A February 1998 High Court ruling has given rise to debate on whether the Danish practice of closed-shop agreements is in breach of the European Convention on Human Rights. The key issue is one of forced trade union membership and the right to individual choice of union representation

In 1996, legal action was taken by Denmark's Christian Trade Union (Den Kristelige Fagforening, DKF) against a company that had dismissed an employee on grounds of non-compliance with a closed-shop agreement concluded with the General Workers' Union in Denmark (Dansk Specialarbejderforbund, SiD) in 1990. The closed-shop agreement stated that employees recruited after 1990 should already be or become a member of SiD. Having been employed for a year at the company when the closed-shop agreement with SiD was reached, the employee at the centre of the case became a member of SiD. Later, he regretted the membership and refused to pay union dues, resulting in his exclusion from the trade union and later his dismissal.

DKF was founded in 1899 as a Christian trade union and, with 145,000 members is the largest of three trade unions in Denmark which represent alternatives to the mainstream - essentially the three confederations, the Danish Confederation of Trade Unions (Landsorganisationen i Danmark, LO), the Confederation of Salaried Employees and Civil Servants (Funktionærernes og Tjenestemændenes Fællesråd, FTF) and the Danish Confederation of Professional Associations (Akademikernes Centralorganisation, AC). The other two alternative unions are Denmark's Free Trade Union (Danmarks Frie Fagforening, DFF), which was established in 1983 as a union independent of political parties, and Sammenslutningen af Firmafunktionærerne.

The High Court ruling

On 2 February 1998, the High Court (Vestre Landsret) ruled in favour of the defendant company, stating that the dismissal was legal, according to the Act on Freedom of Association. The Act offers protection for the individual employee against compulsory union membership. Protection is regarded as satisfactory, if no worker already employed is threatened with dismissal for refusing to join an organisation with which the employer has concluded a closed-shop agreement, and if all job applicants, prior to their employment, are explicitly informed that membership of a specific organisation is a prior condition for employment at that particular workplace.

In its preliminary conclusion, the High Court underlined that the key point is whether the Act on Freedom of Association, and consequently the dismissal, is in conflict with Article 11 of the Council of Europe's Convention for the Protection of Human Rights and Fundamental Freedoms, which states that "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." Whereas the Convention is clear about the right of association, it is ambiguous about the right not to joint an association/trade union. However, according to the High Court, a 1993 ruling from the European Court of Human Rights (ECHR) on the right not to join (judgment of 30 June 1993 in the case of Sigurður Sigurjónssons v. Iceland) raises doubt as to whether the Danish Act on Freedom of Association is in accordance with the new practice of the ECHR. The High Court additionally states that it may be in conflict with the Convention's provisions on freedom of speech to oblige individuals to become member of a trade union with a political affiliation that runs counter to their beliefs.

Acknowledging the consequences of overruling the use of closed-shop agreements, and hence the impact this would have on Danish industrial relations, the High Court leaves it up to the Danish Government to assess whether an adjustment of the Act on Freedom of Association is needed.

In the European Parliament's Annual report on respect for human rights in the European Union (1996), due to be considered at the February 1998 plenary session, closed-shop agreements in Denmark, together with France and Sweden, are singled out as violating the principle of freedom of association: "The exercise of monopoly-like power by a trade union is contrary to the right of employees freely to choose their representation and indeed their right not to belong to any trade union at all."

Prior to the High Court's ruling, DKF announced that if necessary it will bring the case before the Supreme Court and even to the ECHR in Strasbourg.

Will the Government act?

Whereas the right-wing opposition in the Danish Parliament demands that the use of closed-shop agreements be prohibited totally, the Social Democrat-led Government is of the opinion that the existing legislation in the area is sufficient and in harmony with the way that industrial relations is practised in Denmark.

After the ruling by the High Court, the Minister of Labour was summoned by the parliamentary Labour Market Committee and asked in Parliament at question time to explain whether legislative action will be taken. The answer was clear: the Minister will take no legislative action, as the ruling did not compromise the way freedom of association is practiced in Denmark. The Minister underlined that the Government saw no need to generate unrest on the Danish labour market by changing the balance of power/competencies between the legislators and the social partners, hence infringing on the social partners' right to conclude agreements. Furthermore, the Minister was asked whether she would gather information from the LO and the Danish Employers' Confederation (Dansk Arbejdsgiverforening, DA) and initiate a scientific examination of the number of employees covered by closed-shop agreements. The reply was again very clear: since the Government does not intend to take any legislative action to prohibit the social partners' use of closed-shop agreements, it does not see the use of further examination.

DA's statutes explicitly forbid its member firms and member organisations from concluding closed-shop agreements and DA regards this type of agreement as being contrary to the intentions of the basic agreement between DA and LO. LO has informed the Minister of Labour that it has no information on the number of employees covered by closed-shop agreements and for that reason cannot meet a request for information. On the public sector labour market, closed-shop agreements are rendered invalid by the principle of administrative law which states that citizens must be accorded equal treatment. According to DKF, approximately 200,000 workers are covered by closed-shop agreements.

With the intentions of prohibiting what they saw as forced trade union membership and the lack of an individual right for employees to choose trade union representation, the right-wing parties submitted in the autumn of 1980 a legislative proposal (L45 Forslag til lov om begrænsning af organisationers rettigheder over for erhvervsudøvere) aimed at reducing organisations' rights vis-à-vis employees. The proposal was rejected by a majority consisting of the Social Democratic Party and socialist parties, and thus not passed in Parliament.

The views of the social partners

After the High Court ruling, the president of SiD, Poul Erik Skov Christensen, said that "there is nothing wrong in concluding closed shop agreements ... We have a sound Danish principle saying if one wants to enjoy then one most contribute." Mr Christensen's argument is that if one wants to enjoy the rights ensured by collective agreements, then one must be a member of the trade union which concluded the agreements and thus produced the rights.

While the president of LO, Hans Jensen, will defend the right to conclude closed-shop agreements, DA is advising the trade union movement to re-evaluate its view on the use of such agreements.

Closed-shop agreements are a means to ensure agreement-based employment conditions for employees working for an employer which does not belong to an employers' organisation and refuses to become organised. The agreements ensure that only workers who are members of a particular union, or who agree to join the union once employed, are recruited. These workers are covered by the collective agreements signed by the union and thus no-one is employed in the company concerned on lower terms than those set out in the relevant sectoral collective agreement. Finally, closed-shop agreements are the established trade union movement's means of excluding competitive organisations.

Commentary

Beyond the principal question of the human right not to join an association/trade union because of closed-shop agreements, the case is one example of the ongoing controversy between the "alternative" and the established trade union movement in Denmark. Since DKF rejects a united trade union movement - as DKF views this as outdated - the conflict is based on fundamental differences in views between a trade union struggle for rights and solidarity on one side and individual and Christian viewpoints on the other. Beyond the ideological and political differences, the dispute is linked to the struggle over members. Although DKF with its 145,000 members does not threaten the established union movement as such, DKF has managed to recruit new members. In 1997 alone, DKF's figures show a net recruitment of some 4,000 new members.

Both the Government and the established trade union movement argue that in order to enjoy the individual rights laid down in collective agreements and produced by trade unions, it is only reasonable to demand membership of these trade unions. Taking away the right to use closed-shop agreements would alter the balance of power between trade unions and unorganised employers, and consequently generate unrest in Danish industrial relations.

Furthermore the case has challenged the collective and agreement-based nature of industrial relations in Denmark - ie, the balance between individual rights via legislation and collective rights via agreements.

The use of closed-shop agreements goes beyond agreements reached with unorganised employers. Agreements of the same nature are practised within the dentistry, legal, medical and pharmacy professions, and any change in the present practice will have widespread consequences. (Kåre FV Petersen, FAOS)

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