Dragsted Schlüter Helmer Nielsen
The Danish Supreme Court has passed two milestone decisions in civil court cases involving the so-called negative aspect of freedom of association, ie the freedom not to join a trade union or not to join a specific union, and the use of closed shop systems in the Danish labour market.
In the first case (judgment of May 6 1999) an employee had been employed since September 1989. In August 1990 a closed shop agreement was entered into between the employer and the Danish trade union SID. The employee was not a member then, but joined the trade union two months after, in October 1990. However, he was excluded from the trade union in January 1996 because of membership fee arrears. Subsequently the employee was dismissed in March 1996. He asserted a claim for compensation for unlawful dismissal under the Danish Act No. 285 on Safeguards against Dismissal Due to Union Membership of June 9 1982 and Promulgation Act No. 443 of June 13 1990.
The Act was passed by the Danish Parliament in order to comply with Article 11 of the European Convention on Human Rights and, especially, to comply with the European Court of Human Rights' decision in the British Rail case, granting three employees the right to refuse to join a trade union, because no closed shop agreement was in force at the time, when their employment commenced. The European Court of Human Rights has not expressly opposed dismissals on the grounds of an existing closed shop agreement in situations where the employee was duly informed of the closed shop agreement before he or she was hired. Nor has the court opposed dismissals due to subsequent closed shop agreements in cases where the employee was a member of a trade union at the time the closed shop agreement was entered into between the employer and the trade union. Thus, these exemptions were included in the Danish Act.
The Danish Supreme Court has now reviewed the above exemptions in the light of Article 11 of the Human Rights Convention. Examination of the European Court's case law convinced the Danish Supreme Court that the Court had not interpreted Article 11 as encompassing the freedom not to join a trade union as defined in the exemption rules in the Act.
As the Danish Supreme Court did not find case law evidence that Article 11 does indeed safeguard against all negative aspects of freedom of association, the Supreme Court unanimously abstained from setting aside the Act passed by the Danish Parliament and rejected the employee's argument to that effect.
However, as the plaintiff in the case was not a member of a trade union at the time of conclusion of the closed shop agreement, the exemption rule in the Act was not applicable, even though the employee did in fact join the union only a few months after.
The other milestone decision was passed only a few weeks later, on June 8 1999. Not surprisingly, the Danish Supreme Court followed its preivous decision.
Relying on the exemption rule that notice be given that membership of a particular trade union was a condition of employment, the Supreme Court ruled that the employee had not been dismissed unlawfully, because he refused to join either of the trade unions, which had been expressed as a condition for the employment before hiring.
This probably means that the Court is unwilling to set aside Danish legislation at its own discretion. Only if a conflict with the European Convention is clear, will it do so.
Closed shops are actually widespread in some industries in the Danish labour market, and most likely will be until a new clear decision is passed by the European Court of Human Rights in respect of other aspects of the freedom not to join a trade union. In such event, parliament will have to amend the legislation in this respect, or the Danish Courts will set aside such legislation if it is in conflict with Article 11 of the European Convention.
It is too early to say if the last of the Supreme Court decisions will be followed by a complaint to the European Human Rights Commission. It is likely though as the employee was supported by a trade union, outside the umbrella trade union, LO, (Landsorganisationen i Danmark), an advocate for the abolishment of the closed shop system in Denmark.