The purpose of 3F's notice of conflict to an unorganised employer was to pressure the employer to enter into a more burdensome collective agreement with 3F.

Background

3F gave notice about a conflict and sympathetic strike vis-á-vis an unorganised gardening company.

Immediately after receipt of the notice of conflict, the company applied for membership of the employers' organisation GLS-A. GLS-A rejected the application as - due to the notice of conflict - it could not admit the company as a member without the acceptance of 3F, which acceptance 3F was not willing to give.

Instead, 3F presented the company with a draft adhesion agreement, which was less favourable to the company than the collective agreement entered into between 3F and GLS-A, by which the company would have been covered had the membership of GLS-A been accepted.

The company then brought action against 3F before the Industrial Court claiming that the notice of conflict was unlawful as the only objective was to pressure the company to accept 3F's more burdensome collective agreement. 3F claimed dismissal of the action, alternatively judgment in favour of 3F.

Grounds and conclusion of the Industrial Court

The Industrial Court found that, under case law, objective reasons must exist to make stricter requirements for an employer simply because the employer is not a member of an employers' organisation with which the organisation has not entered into any collective agreement.

The Industrial Court then found that the draft adhesion agreement presented by 3F contained terms that were more burdensome to the company than the terms of the collective agreement between 3F and GLS-A, and that no objective reasons existed justifying such stricter requirements for the unorganised employer.

The Court found that the objective of the notice of conflict had been to pressure the company to accept unlawful and non-objective terms. The Court therefore ruled in favour of the company determining that the notice of conflict was unlawful.

Comments

Once again, the Industrial Court has affirmed that a union cannot by way of conflict force an unorganised employer to accept more burdensome terms than the terms applicable to the employers covered by a collective agreement through their membership of an employers' organisation.

Consequently, the Court has affirmed the view that it is not possible to distinguish between organised and unorganised companies unless this distinction is objectively justified. This practice also makes the employers' freedom of association effective.

However, the ruling does not change the fact that a union may still start a conflict under current practice if the unorganised employer does not wish to enter into a collective agreement concerning the working conditions of the employees.

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

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Marianne Lage

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