T2-01: Collective bargaining and the labour law

5 September 2019, 14:00–15:30

Chair: Mia Rönnmar


The freedom of association and the extension of collective labour agreements

Isabelle Van Hiel, Ghent University

» Full paper: ilera-2019-paper-266-Van Hiel.pdf

Collective bargaining can only be an adequate means to defend an promote workers’ interests, if the resulting agreements are respected. Therefore, collective agreements must be made enforceable, also at the request of the individual worker. The individual worker must be able to claim  the substance of the agreement against his employer, although neither of them might be a party to the collective agreement.

In the past, different means have been  developed to achieve this goal. Some means were based on the membership of the worker to the signatory workers’ organisation. To cover all the workers in the workplace, signatory trade unions imposed  an obligation to be trade union member in order to be hired, or to become one when hired. Other means were grounded on the membership of the employer of the signatory employers’ organisation. Those systems of collective labour relations  demanded for the use of pressure on the employer to become member of an employers’ organisation, or to accede to the collective agreement signed by the employers’ organisation. Where no employers’ organisations existed or had been involved in collective negotiations,  the collective agreement was enforced by a requirement in the individual labour contract to apply the labour conditions set in the collective agreement. Eventually, in many countries, the process of collective bargaining was formalised and the government started to declare generally binding the content of the collective agreement. As a consequence of the declaration, all workers are covered, whether or not their employer is a member of an employers’ organisation.

The possibility to enforce the result of the process of collective bargaining, must be considered as an element of the right to collective bargaining, which in itself is an aspect of the freedom of association. However, this right has been challenged over the years, mainly by invoking the freedom of association. Increasingly, it is judged to comprise a negative aspect which aims to protect individuals against pressure to become a member of an association. Since its first recognition by the European Court of Human Rights, the negative freedom of association has been invoked several times. First, in Young, James and Webster, it has been used to oppose closed shops. Later, in Gustafsson, the pressure exerted by a trade union on an employer to become member of an employers’ organisation, or to enter into the collective agreement, was questioned. As the attempt failed, similar complaints were introduced before the European Committee of Social Rights and the EU Court of Justice. More recently, in Geotech Kancev, the previous efforts cumulated in the claim of an employer against the application of a collective agreements which was declared generally binding. In this contribution the facts and outcome of the case will be discussed, while placing it in the evolution of the negative freedom of association and the right to collective bargaining at European and international level.


Interplay between labour law and collective bargaining in the promotion of elderly workers and prolonged working lives

The differences in job quality among higher education graduates in Europe: A cross-national analysis of 17 countries

Jenny Julén Votinius, Faculty of Law, Lund University

The ageing of Europe’s population will have fundamental implications for the labour market. For labour law, the ageing population in Europe has brought to the fore questions on age discrimination and ageism, along with an urgency to enable and encourage employees to stay longer in the labour market before retiring. Starting from legislation and policies on EU and national level, this paper argues that collective bargaining may considerably contribute to realizing the prolongation of working lives, due to its unique ability offer tailor-made solutions. When it comes to older employees, this ability is particularly important, as the ageing workforce is a group that is characterized by an unusually high level of heterogeneity.

Collective bargaining for older employees takes place within a legal and policy framework where the ban on age discrimination in EU law and the agenda for active ageing in EU policy forms an important part of the background. As regards age discrimination, EU law feeds into national legislation in a very direct and specific way – not least through the CJEU’s case law on the Equal treatment (framework) directive 2000/78/EC. This is in contrast with the policy agenda on active ageing; although this agenda is strongly promoted by the EU, almost all the details are left to the Member States.

Many EU Member States have introduced at least some form of statutory regulation to promote extended working lives (Eurofound, 2013). Normally, statutory law provides the general framework, and in many cases also financial incentives, while the social partners to varying degrees contribute to the detailed design and implementation. In a number of countries, comprehensive tripartite agreements have been concluded to introduce longer working life strategies. This is the case in, for instance, Finland, Denmark, Belgium, Ireland, Germany and France (Claisse, Daniel and Naboulet , 2011). In some countries, such as France, Germany and Denmark, the social partners have also concluded sectoral-level agreements in the matter, beyond the statutory framework. The paper discusses such collective bargaining practices in relation to a number of measures that often are highlighted as key factors in the promotion of longer working lives: working conditions, work environment and work organization; workforce and career development; and age-awareness and attitudes in the workplace (Edge, Cooper and Coffey, 2017; Blackham, 2016).

Drawing on labour market research and using a number of national examples of collectively bargained solutions to promote longer working lives, the paper discusses how effective strategies to meet the challenges of an ageing workforce can translate into collective agreements and thus become a part of the everyday life in the workplace. The paper claims that there is an important unused potential in collective bargaining for targeting the situation of older workers, and suggests that it would be rational for both employers and trade unions to increase their engagement in the area of collective bargaining for older employees.

Compulsory arbitration in wage setting in Norway­

Use and effects on industrial action Influence of organisational citizenship behaviour on organisational effectiveness: Experiences from Indian banks

Åsmund Arup Seip, Fafo Institute for Labour and Social Reserach, Oslo

Use of wage committees for arbitration in labour disputes in Norway has roots far back. The Scandinavian labor congresses of the 1880s wanted to establish arbitration courts that could resolve labor disputes. While the Danes, by the turn of the century, had adopted arbitration to resolve disputes in working life, neither Sweden nor Norway had adopted a similar court system.

When a clearer understanding of the differences between disputes of interests and legal disputes was established through the use of collective agreements, arbitration became the normal way to handle legal disputes in Scandinavia and elsewhere, and labour court systems were institutionalized. However, from 1916 to 1922, the Norwegian government, with parliamentary support, started an extensive use of compulsory arbitration in disputes over wages. After the Second World War the government resumed this practice and established in 1952 a permanent wage board that could handle wage disputes. Since then, the government has regularly intervened on ad hoc basis with a peace duty in disputes of interests in the labour market. The National Wages Board will then settle the dispute by compulsory arbitration. The ILO and the Committee of Experts under The European Social Charter have criticized the Norwegian government on several occasions, arguing that the interventions have been violating the right to industrial action.

Despite the criticism from ILO and the Committee of Experts, state intervention in industrial action has a legitimate place in the Norwegian wage setting system. Both the social partners and the political institutions recognize compulsory arbitration as a mechanism to solve disputes in in the labour market, especially where “essential services” are involved. It seems therefor relevant to ask how this mechanism works, and why it is used. This article will examine the use of compulsory arbitration in labour disputes in Norway after 1990, and try to explain some off the effects of the mechanism on industrial action and public administration.


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