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The Labour Court: Unlawful blockade warning against Russian-linked ships made by Swedish Dockworkers Union AD 2022 No 33

July 01, 2022 Legal Cases

On two occasions, the Swedish Dockworkers Union has warned of a blockade against ships to and from Russia and against Russian-flagged, Russian-owned and Russian-controlled ships that are currently not sailing in Russian ports. The Swedish Dockworkers Union argued that the blockade should be regarded as a lawful industrial action as it was primarily an act of sympathy and in solidarity with, among others, Ukrainian dockworkers. Secondly, the blockade should be considered as a form of legitimate political industrial action. However, the Ports of Sweden disagreed, which the union is bound by a collective bargaining agreement with. Following an application for an interim decision on the matter, the Labour Court found that the Swedish Dockworkers Union had failed to show that it was likely that there was a primary trade union conflict in Ukraine. The blockade could not be regarded as a lawful sympathy act. Furthermore, the Labour Court found that the blockade could not be considered as a form of lawful political industrial action as the blockade lacked the character of a protest and demonstration action due to the period of time the blockade would last and the not insignificant impact it would have on the business management rights for the Ports of Sweden’s member companies.

Vinge’s comments

It is important to remember that the present case concerns two parties that are bound by a collective bargaining agreement. Accordingly, they are also obliged to respect the peace obligation. This means that specific conditions must be fulfilled for industrial action to be considered as permissible. 

The Labour Court has, based on previous case law, taken a position on when political industrial action can be considered lawful. In light of AD 1980 No 15, where the Labour Court found that a blockade of transport to and from Chile that lasted for a week could be considered lawful, the Labour Court found that the industrial action that the Swedish Dockworkers Union warned of could not be considered lawful because of the impact the blockade would have on the employer's right to manage its business. The Labour Court found that the admissibility of a political industrial action depends on whether the action has the character of a protest and demonstration action, which in turn depends on the duration of the action.

In the present case, the Labour Court considered that the announced blockade would not have an insignificant impact on the employer's right to manage its business. The blockade could entail a risk that potential customers would choose not to enter into any co-operation with the Ports of Sweden’s member companies which, due to the blockade, would not be able to fulfil the customer's wishes. The Labour Court has confirmed the importance of the employer's right to manage its business and clarified that political industrial action cannot be considered lawful when it loses the character of a protest and demonstration action.

  

Background

On two occasions, the Swedish Dockworkers Union has warned of industrial action in the form of a blockade against ships to and from Russia and Russian-flagged, Russian-owned and Russian-controlled ships that are not currently sailing in Russian ports. On the first occasion, the union reached an agreement with Ports of Sweden that the blockade, which had come into force on 28 March, would end on 13 May. When Ports of Sweden withdrew its action on 17 May, the Swedish Dockworkers Union again announced industrial action in the form of a blockade from 27 May to 26 June.

The Swedish Dockworkers Union argued that the industrial action was taken in solidarity with Ukrainian dockworkers, the Ukrainian working class and Belarusian railway workers in response to Russia's invasion of Ukraine and the impact it had on the aforementioned workers. For example, the union argued that the occupation of certain areas in Ukraine had meant that Russia had become the employer of Ukrainian workers, which had led to conflicts between the parties. The Swedish Dockworkers Union also argued that the announced blockade constituted an act of sympathy in support of primary trade union conflicts in Ukraine and Belarus. Secondly, if the Labour Court did not find that the union had announced a trade union sympathy action, the blockade should be regarded as a form of lawful political industrial action with a trade union background.

Ports of Sweden argued that the Swedish Dockworkers Union's notice of blockade constituted unlawful industrial action, as the union's sympathy action did not respond to a lawful primary conflict in either Ukraine or Belarus. Instead, Ports of Sweden argued that there was a political industrial action with an international connection that was not linked to a trade union interest. Ports of Sweden also argued that the blockade would have consequences for its member companies as business relations could be more difficult to maintain, which would mean a restriction of the employer's right to manage its business.

The assessment by the Labour Court

In the present case, the Labour Court dealt with the union's application for an interim order that the union would be legally unhindered from implementing the blockade in accordance with the issued notice. Ports of Sweden opposed the claim. Hence, the Labour Court has examined whether the blockade was primarily a lawful trade union sympathy action and, secondly, whether the blockade could be regarded as a lawful political industrial action.

On the question of whether the blockade could be regarded as a lawful trade union sympathy action, the Labour Court initially found that the blockade announced by the Swedish Dockworkers Union could be contrary to the peace obligation stipulated in the collective bargaining agreement between the parties. However, the blockade can be considered a lawful industrial action if it constitutes a sympathy action where the purpose of the sympathy action is to support one side of a labour dispute. In the present case, the Labour Court found that the Swedish Dockworkers Union had failed to show the existence of a foreign lawful industrial action and the blockade could not be regarded as a lawful trade union sympathy action.

The second issue that the Labour Court examined was whether the blockade could be considered a lawful political industrial action. The Swedish Dockworkers Union considered that the blockade constituted a political act of sympathy with a trade union background, while Ports of Sweden argued that the blockade should be regarded as unlawful. The reason advanced in relation thereto was that the blockade was intended to change the right to manage the business, which vests in the employer according to the collective bargaining agreement and would be contrary to the peace obligation.

The Labour Court initially found that there was an implied condition between the parties to the collective bargaining agreement that the right to manage a business vests in the employer alone. In light of previous case law, the Labour Court stated that the decisive factor in determining whether industrial action could be regarded as lawful or not was whether it had the character of a protest and demonstration action lasting for a limited period of time. In the present case, the Labour Court found that although the blockade was for a limited period of time, it risked permanently impairing the business relations of the member companies and also the right to manage the business, which solely vests in the employer. For this reason, the Labour Court decided to reject the Swedish Dockworkers Union's request for an interim order to carry out the blockade without any legal obstacle.

Part-time firefighters have priority right to a higher employment rate AD 2022 No 29

Four firefighters on standby employed according to the so-called RiB agreement, notified their employer - a civil protection union - that they wanted a higher employment rate according to section 25a of the Employment Protection Act. The employer subsequently employed 16 full-time firefighters without offering the firefighters on standby a higher employment rate. The parties agreed that the four firefighters had sufficient qualifications for the full-time vacancies. The Labour Court found that the four firefighters on standby were part-time employees within the meaning of section 25a of the Employment Protection Act and that the employer breached the provision by not offering them any of the vacant full-time jobs.
July 01, 2022 Legal Cases