ECHR rules against Danish closed-shop agreements
It is a violation of the European Convention on Human Rights for a person to be compelled to be a member of a specific trade union in order to be employed in a Danish enterprise. This was the landmark ruling delivered by the European Court of Human Rights (ECHR) on 11 January 2006 in a case concerning closed-shop agreements that had been brought by two employees against the Danish government. Danish trade unions have taken note of the judgment and will no longer enforce the contested closed-shop clauses, while the government will legislate to bring the law into line with the ruling.
On 11 January 2006, the Grand Chamber of the European Court of Human Rights in Strasbourg convened to deliver the Court's long-awaited judgment in the case of Sørensen & Rasmussen v Denmark (applications nos. 52562/99 and 52620/99). The question at issue was whether it is a violation of Article 11 of the Council of Europe's European Convention on Human Rights and Fundamental Freedoms to prevent people from obtaining employment if they refuse to be a members of a trade union that has concluded a closed-shop agreement with the enterprise in question - in other words, Danish closed-shop agreements were being put definitively to the test.
The ECHR's judgment was in favour of the applicants, Morten Sørensen and Ove Rasmussen. It was stressed in this connection that Denmark and Iceland are among a limited number of 'contracting states' (states which have ratified the Convention) that continue to permit the conclusion of closed-shop agreements. In Denmark, such agreements affect less than 10% of the workforce, or no more than 200,000 people. The ECHR ruling is expected to lead to a change in the legislation and agreements in this area.
Sørensen & Rasmussen v Denmark
A closed-shop clause is a provision in a collective agreement whereby the employer agrees to employ only trade union-organised workers, workers who are members of a particular union, or workers who agree to join the union once employed. In Denmark, this occurs only in areas of the private sector not covered by the basic agreement between the Confederation of Danish Employers (Dansk Arbejdsgiverforening, DA) and the Danish Confederation of Trade Unions (Landsorganisationen i Danmark, LO). Closed-shop clauses thus typically appear in agreements between individual enterprises not affiliated to employers' organisations and a trade union. For instance, such an employer might conclude a closed-shop agreement with the United Federation of Workers (Fagligt Fælles Forbund, 3F), with the result that it will from then on be a condition for new employees to be members of 3F.
Mr Sørensen and Mr Rasmussen would not accept this state of affairs, though the particular circumstances of their cases differed (DK0508104F). Through respectively the Danish Free Trade Union (Danmarks Frie Fagforening) and the Christian Trade Union (Kristelig Fagforening), they brought proceedings against their employers on the grounds of unfair dismissal; but they both lost in the Danish High Court(DK9802153F). The Court found that there had been no violation of the Act on Protection against Dismissal due to Association Membership (Lov om beskyttelse mod afskedigelse på grund af fagforeningsforhold). This Act mainly protects 'positive' freedom of association and only to a smaller degree 'negative' freedom of association, ie the right not to be a member of a trade union. The Act thus provides that if a newly recruited employee refuses to become a member of the specific trade union that has a collective agreement with the enterprise, employment may be refused provided that he or she had been informed of this fact prior to the recruitment. On the other hand, the Act stipulates that employees already in employment at a company when a closed-shop agreement is signed cannot be forced to join the signatory union. Both Mr Sørensen and Mr Rasmussen were informed about these issues before they began work. They both, however, chose to bring an appeal before the European Court of Human Rights claiming that Article 11 of the European Convention - setting out the right to 'freedom of assembly and association' - had been violated.
Denmark found in breach of Article 11
In January 2006, the European Court of Human Rights ruled in favour of the applicants and held that it was a violation of the European Convention that they had been dismissed for refusing to become a member of the then General Workers’ Union (Specialarbejderforbundet i Danmark, SiD) (now 3F) although SiD had concluded a closed-shop agreement in both cases - in the case of Mr Sørensen with the supermarket chain FDB and in the case of Mr Rasmussen with a nursery (Gartneriet i Regnmark I/S). It was found that the Danish government had not adequately protected the applicants against being compelled to join a trade union which had basic political views that they could not support. At the time of the complaint, part of SiD's membership dues went to the Social Democratic Party. Furthermore, Mr Sørensen had been dismissed without notice because he had still not joined SiD after three weeks’ employment in his holiday-relief job (he was then a university student). In the case of Mr Rasmussen, a gardener, the judges found that if he had joined a different union, it would still be difficult for him to find a new job in the horticultural sector as closed-shop agreements are very common in this sector.
In these circumstances, the Court concluded that both applicants were compelled to join SiD, 'which struck at the very substance of the freedom of association guaranteed by Article 11' (quotation from the judgment). Thus the Court finally concluded 'that Denmark had failed to protect the applicants’ negative right to trade union freedom and that there had, therefore, been violation of Article 11 in respect of both applicants'.
Although the Danish government, through its agent in Strasbourg, loyally defended Danish closed-shop agreements and the substance of the Danish Act on freedom of association in the ECHR proceedings, it is no secret that the liberal/conservative government would itself like to see the complete abolition of closed-shop agreements. Shortly after coming to office in 2001, the government had tabled a bill before parliament (the Folketinget) to abolish closed-shop agreements (DK0207103F), but the bill failed to secure the necessary majority. A subsequent bill suffered the same fate. However, it is now clear that, although the ECHR judgment formally deals only with the two individual cases, the Danish government will in practice be forced to do away with the system of closed-shop agreements. The Minister for Employment has already indicated that a bill to this effect will be tabled in the near future. It seems that a broad majority in parliament will be in favour of bringing Danish legislation into line with the judgment.
While the independent Danish Free Trade Union and Christian Trade Union welcomed the ECHR judgment warmly, the trade unions affiliated to LO were, unsurprisingly, disappointed. However, as early as the day after the ruling had been delivered, they said that they would take note of its implications. Shortly afterwards, the presidents of LO and 3F announced that, owing to the judgment, they would no longer enforce closed-shop agreements, even before new legislation is adopted. 'The legal basis and the jurisdiction of the European Court of Human Rights in relation to Danish legislation are so clear that we will not enforce any closed-shop clauses in individual collective agreements. This means that such clauses will no longer be operative. As from today the right of individuals to join a trade union of their own choosing will apply', stated Poul Erik Skov Christensen, the president of 3F.
The ECHR judgment puts an end to a protracted industrial and political dispute concerning closed-shop agreements. From this point of view, the independent 'alternative' unions and the ruling Liberal Party (Venstre) and Conservative Party (Det Konservative Folkeparti) have emerged as winners. The question arises of what impact this will have on Danish industrial relations.
Acceptance of the use of closed-shop agreements is not an important feature of the Danish industrial relations model. The distinctive Danish collective bargaining system is based on regulating pay and employment conditions mainly through the conclusion of collective agreements between voluntary interest organisations. Most parts of the labour market are thus covered by collective agreements, the great majority of which do not contain closed-shop clauses. The right of trade unions to take industrial action against unorganised employers may now still be enforced, but without any demand for closed-shop agreements. Although the ECHR judgment may lead to a further loss of members for some already hard-pressed LO unions, union density - at about 80% - continues to be very high by European standards. The balance of power between the 'old' and the alternative trade unions is in no imminent danger of changing. Measured in terms of services offered to the individual member, the LO trade unions have the best offers: bargaining rights and the possibility of bringing collective cases before the Industrial Court or having them decided through the system for settlement of industrial disputes. A lower membership fee is arguably more or less the only offer from the alternative unions. This situation will hardly be changed in any significant way by the judgment.
A different question is whether the ECHR has 'bullet-proof' authority for the judgment it has delivered. Jens Kristiansen, a Danish labour law professor, argues that it does not. In a feature article in the Berlingske Tidende newspaper (on 17 January 2006) he wrote that the judgment may perhaps not have any major impact on the Danish labour market model, but that developments in European law will also challenge the Danish labour market in other fields where a decision may have much more far-reaching practical consequences. According to Professor Kristiansen: 'It must, however, be clearly established that decisions from European courts of law must also be based on acceptable interpretations of the rules in force and this requirement is not satisfied by the European Court of Human Rights in the case concerning closed-shop agreements. At the time of the adoption of the Convention by the political assembly of the Council of Europe there was a clear understanding that the freedom of association did not include a right not to be a member of an association. This was a central issue during the negotiations and especially the Nordic countries were opposed to such a protection due to the widespread use of closed-shop agreements. According to the 'travaux préparatoires' for the Convention the member states were agreed not to include a provision to the effect that an individual could not be compelled to join an association. But the European Court of Human Rights has ignored this vital presumption for the Convention with reference to the general development in the Member States’ conception of justice in this field.'
In the opinion of Professor Kristiansen, this means that the ECHR has in fact incorporated a new provision into the Convention, thus bypassing the established political system of the Council of Europe and he adds: 'It is problematic that the Court exercises legislative power without the public mandate that characterises the legislative power in democratic systems.' (Carsten Jørgensen, FAOS)