- 24 Jun 2015
Benefits may be exclusive to members of a trade union having concluded the applicable collective agreement. So the Danish Supreme Court ruled in a recent case.
In Denmark, there is a principle of freedom of association in the labour market. This principle is laid down in the Danish Freedom of Association Act and in article 11 of the European Convention on Human Rights. Freedom of association means, among other things, that employers are prevented from not hiring or from dismissing an employee because the employee is or is not a member of a trade union. But what rules apply during employment?
This case concerned two employees working at a packaging company. Both of them had had periods of sickness absence in 2011 and 2012. The first time around, the two employees received full pay during their sickness absence, but when the employer found out that they were not members of the trade union which had concluded the applicable collective agreement, they only received sick pay at a rate equivalent to sickness benefits. If the employees had been members of one of the trade unions with an applicable collective agreement, they would have been entitled to full pay during their sickness absence.
The two employees claimed that they had been discriminated against because the employer, when reducing their pay during their sickness absence, had referred directly to the fact that they were not members of the trade union with the applicable collective agreement. According to the two employees, this was de facto a closed shop forcing the employees to join a specific trade union.
Differential treatment allowed
Like the High Court, the Supreme Court agreed with the employees that, according to its wording and as expressly stated in the preparatory notes, the Danish Freedom of Association Act aims exclusively at protecting freedom of association in recruitment and dismissal. The Act does not prohibit differential treatment in employment.
The Supreme Court noted in this connection that the case law of the European Court of Human Rights shows that it is usually not contrary to article 11 of the European Convention on Human Rights to make an employee suffer other adverse effects of non-membership of a trade union than not recruiting or dismissing him or her. However, based on the European Court of Human Rights, it may constitute discrimination within the meaning of the Convention if the effects of non-membership may de facto force an employee to join a trade union – especially if the differential treatment threatens the employee's means of existence or is similarly invasive in nature.
The Supreme Court dismissed the contention that the differential treatment of the two employees had de facto forced them to join one of the trade unions with an applicable collective agreement as the differential treatment had only meant that they were not entitled to a supplementary payment during their sickness absence. The two employees had not joined one of those trade unions. Accordingly, there was no discrimination under the Danish Freedom of Association Act or article 11 of the European Convention on Human Rights.
Norrbom Vinding notes
- that with the judgment it is established that, as a general rule, the Danish Freedom of Association Act and article 11 of the European Convention on Human Rights only protect against discrimination in recruitment and dismissal;
- that, accordingly, it is not contrary to the principle of freedom of association for non-membership of a trade union to have certain adverse effects on the employee in employment so long as it does not in effect force the employee to join the trade union; and
- that this outcome is certainly in line with the legislature's intentions behind the most recent update of the Danish Freedom of Association Act, where it was specifically emphasised that collective agreements which exclusively cover members of the trade union which has concluded the collective agreement would still be allowed.