Administrative Tribunal awards ALEBA trade union nationally representative status

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In October 2000, following an appeal initiated by the ALEBA bank workers' trade union against the Minister of Labour, Luxembourg's Administrative Tribunal awarded the union "nationally representative" status, thus allowing it to conclude collective agreements. This decision ignores earlier case law which required a nationally representative trade union to represent members in several sectors of the economy.

On 29 April 1999, a new collective agreement for the banking sector was signed by the Association of Luxembourg Banks and Bankers (Association des banques et banquiers du Luxembourg, ABBL) and, on the trade union side, by the Luxembourg Association of Bank Staff (Association luxembourgeoise des employés de banque, ALEBA), acting on its own behalf and also representing the ALEBA-Union of Private Sector White-Collar Employees (Union des Employés privés, UEP) Federation (Fédération syndicale ALEBA-UEP) (LU9905104F). The agreement was not signed by the Luxembourg Confederation of Independent Trade Unions (Onofhängege Gewerkschafts-Bond Lëtzebuerg, OGB-L) and the Luxembourg Confederation of Christian Trade Unions (Lëtzebuerger Chrëschtleche Gewerkschafts-Bond, LCGB).

By a ministerial decree of 1 December 1999, the Minister of Labour blocked registration of the collective agreement, on the grounds that the signatory unions did not have "nationally representative" status, thereby denying ALEBA and UEP such status (LU9912117N). For a collective agreement to be valid, it must be registered and have the support of one or more of the "most representative trade union organisations at national level". On 2 December, ALEBA and ABBL filed an emergency appeal and a basic appeal against the Minister's decision before the Luxembourg Administrative Tribunal (Tribunal Administratif). In January, the president of the Tribunal ordered that the measures contained in the collective agreement should be made provisionally applicable on the grounds that failure to do so would cause employees serious and lasting detriment (LU0002128F).

On 24 October 2000, the Administrative Tribunal delivered its verdict on the substance of the case as to whether ALEBA met the statutory criteria to be considered a nationally representative union.

Administrative Tribunal ruling

The idea of "nationally representative status" is not at all clearly defined in law. Two rulings from the Council of State (Conseil d'Etat- the supreme administrative court in Luxembourg until it was abolished in 1996) have stated that a trade union's nationally representative status does not flow ipso facto simply from being established in a sector, but that a union also has to provide evidence of substantial membership, and of a presence in various sectors of economic life.

In 1997, the government asked the Economic and Social Council (Conseil économique et social, CES) for an opinion on a clearer definition of nationally representative status, but the social partners failed to reach an agreement on the issue (LU9705107F).

The rules on nationally representative status were further called into question when ALEBA complained about its treatment by the Luxembourg government to the International Labour Office (ILO) in Geneva. In March 2000, the ILO Committee on Freedom of Association called on the Luxembourg government to review the criteria for nationally representative status on the grounds that they run counter to the principles of freedom of association (LU0004135N).

New criteria

The judges on the Administrative Tribunal first carried out an detailed analysis of the law of 12 June 1965 on collective agreements, establishing that the "sectoral" aspect of representativeness, which had always been used as a basic component in assessing representative status, is not based on any provision of that law. Accordingly, in their subsequent deliberations, the judges no longer took this concept into account, considering that it did permit an accurate determination of what the law meant.

On this basis, the judges laid down a pyramid of criteria for trade union representativeness as follows:

1. at the basis are all trade union organisations;

2. in the middle are those organisations that are the most representative in a given occupation (in this case, bank staff), and which must be able to demonstrate substantial membership, activities and independence; and

3. at the top are organisations which meeting the first two criteria and which can be considered as the most nationally representative trade unions, in that they represent a substantial proportion of all white- or blue-collar workers in the country as a whole.

The ALEBA case

The judges then analysed the ALEBA's case in the light of these new criteria. The first criterion was not discussed at all as no one questioned that the ALEBA is deemed to be a trade union. The second criterion was the subject of a number of discussions in which the Tribunal stated that the ALEBA has a large number of members in the banking sector (9,200 out of a total of 20,700 employees in the banking sector in 1998) and that, contrary to certain statements, it is notable for its activities and its independence. As for the third criterion, the judges believed that ALEBA's national membership is substantial compared with the total number of white-collar workers who are covered by a collective agreement. In this context, the judges considered two sets of figures:

1. at the last elections of representatives on the Chamber of Private-sector White-collar Staff (Chambre des Employés Privés, CEP) in 1998 (LU9812185N), there were 19,543 voters in group 3 (banking and insurance) and ALEBA won 68.19% of the vote - a 7.15% improvement on the previous elections in 1993; and

2. of approximately 45,000 unionised private-sector white-collar staff in the country as a whole, ALEBA's 9,200-strong membership represents over 20%.

After due deliberation, the judges came to the final conclusion that ALEBA should be deemed a nationally representative trade union.

Reactions

It goes without saying that ALEBA gave the decision a warm welcome, and pointed out that it was now the third trade union that could sign collective agreements (alongside OGB-L and LCGB).

ABBL announced that it had always held the view that it was valid for it to sign a collective agreement with the trade union that had most members in the banking sector.

In contrast, LCGB and OGB-L regretted the terms of the decision, and are currently looking into the possibility of appealing to the Administrative Court (Cour Administrative), Luxemburg's supreme administrative court. They stress that discussions on the question of nationally representative status have been taking place for years, and that there is a need both to avoid fragmentation of the trade union movement and to guarantee strong, independent unions.

The Minister of Labour announced that he was looking into the possibility of appealing against the decision; at all events, he stated that there is now an urgent need to review the 1965 law on collective agreements. The Administrative Tribunal's decision will not make parliamentary discussion on such a review any easier.

Commentary

Ten long, fruitless years of talks on the concept of nationally representative status have culminated in the Administrative Tribunal having to take a decision that is properly a matter for the government.

Without wishing to enter into discussion on the purely legal decision delivered by the Administrative Tribunal, which can clearly only be based on existing statutory provisions, one of the elements on which the "Luxembourg model" is founded, that is to say the award of nationally representative status only to trade unions with a multi-sectoral membership, has now been brushed aside. However, this condition is essential if a trade union is to be prevented from blocking the entire national economy through strike action. Holding the whole country to ransom over particular demands has so far proved impossible, with representative trade unions being established in several sectors and necessarily having to think of the interests of all their members.

Luxembourg will quickly have to introduce new legislation structured around the following two issues:

1. allowing the most representative sectoral trade unions in a given occupation, and representing a large number of all the country's (private sector) white-collar or blue-collar staff to sign a collective agreement in their sector; and

2. awarding nationally representative status, with all the obligations and powers associated with it, only to the largest unions established in several sectors. (Marc Feyereisen)