Conflict on strike and lockout led to the company's release from the collective bargaining agreement

The Industrial Court found that a conflict involving a strike and employees subject to lockout for 14 weeks was of such a duration, intensity and scope that the company could rightly be considered released from the collective bargaining agreement, including all attached agreements, protocols, practices and customs.

Consequences

The ruling of the Industrial Court confirms that an employer may be considered released from a collective bargaining agreement if a conflict has been of a certain duration and scope, including if the conflict has resulted in a significant risk – both financially and in relation to the customers' trust. But it still depends on an overall assessment of the specific case.

Background

The case concerned the question whether the conflict between company C and the unions A and B had had the scope and intensity necessary for company C to be considered released from the collective bargaining agreements.

The rules of conflict between the parties provided that both parties were obligated to comply with the collective bargaining agreements although terminated and expired until another collective bargaining agreement had been entered into or a strike/lockout had been initiated. Both collective bargaining agreements also involved a restriction of the free right of conflict.

The findings of the Industrial Court

Initially, the Court noted that it is assumed under labour law theory and practice that a party to a collective bargaining agreement cannot be released from the bargaining agreement without starting a conflict with all the risks and consequences thereof. It is thus necessary to make certain requirements for the scope and intensity of a strike/lockout in order to release a party.

The Court found that, according to the wording of the collective bargaining agreements, nothing prevented a requirement for release, but that a strike/lockout respecting the agreed restrictions could have the scope and intensity necessary to be a releasing factor.

In this connection, the Court attached importance to the fact that the strike/lockout had been initiated after several years' of unsuccessful negotiations concerning the basis of a new collective bargaining agreement, and that the lockout/strike had included a very significant part of the members able to participate in the strike/lockout under the conflict agreements. Finally, the lockout/strike had lasted for 14 weeks.

Based on an overall assessment of the duration of the aggregate term of the conflict, the Court found that, at the time of the company's release notifications, the conflict had had such a duration, intensity and scope that the company could rightly be considered released from the collective bargaining agreement, including all attached agreements, protocols, practices and customs.

The content of this Newsletter is not, and should not replace, legal advice.

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Erik Wendelboe Christiansen

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Marianne Lage

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