The Supreme Court has ruled that the Danish Freedom of Association Act does not protect against discrimination during employment.

Two workers covered by a collective agreement were reported sick for a period in 2011-2012. They were not members of the union behind the collective agreement.

The collective agreement provided additional sick pay to workers with 13 weeks' active membership of 3F Industri/HK Privat. The contracts of employment did not provide a right to any other payment than what appeared from the collective agreement.

At the beginning of the sick periods, the employer paid full salary, but subsequently, the employer requested repayment of excess sick pay by way of a set off against future salary payments.

The matter was brought before the Western High Court, which had to decide whether it was contrary to the Act to make additional sick pay conditional on membership of a specific union.

Negative freedom of association under the Freedom of Association Act

The right to freedom of association includes a positive right to join a union and a negative right not to join a union or to resign as member of a union.

The Act ensures the employee's freedom of association on the labour market in connection with employment and dismissal. The Act was amended in 2006 when closed shop provisions were prohibited.

However, the Act does not contain an explicit prohibition against discrimination during employment, and the Western High Court therefore had to decide whether the protection of the Act could be extended to cover also discrimination during employment.

Discrimination during employment was not contrary to the Freedom of Association Act

The Western High Court found that it was not contrary to the Act that the collective agreement discriminated between employees who were members of the union behind the collective agreement and employees who were members of other unions - like the two workers. However, the employer was not entitled to request repayment of the already paid additional sick pay.

Legal to give advantages to members of unions which are parties to a collective agreement

The Supreme Court also found that the Act only aims at protecting freedom of association in connection with employment and dismissal, and that the Act does therefore not contain a prohibition against discrimination during employment.

The Supreme Court referred to the practice of the European Court of Human Rights according to which it would usually not be contrary to the right to freedom of association that non-membership of a union had other negative implications for an employee than non-employment or dismissal.
But the Supreme Court found that the specific discrimination may not have such impact that it will in fact force the employee to join a union or be of such nature that it constitutes a threat against the employee's means of existence.

However, in the specific case, the Supreme Court found that the discrimination had in fact forced the workers to joint 3F as they were still entitled to sick pay equivalent to the benefit rate in the same way as many other employees. They were therefore only prevented from receiving additional sick pay.
Based on the above, the Supreme Court affirmed the Western High Court ruling.

Comments

The ruling proves that freedom of association is only extended to cover circumstances in connection with employment and dismissal and generally not during employment. It is therefore not contrary to the Act if an employee who is member of a union which is party to a collective agreement enjoys certain rights and privileges compared to other employees.
However, the Supreme Court's grounds show that if discrimination is of a nature implying that the employee is in fact forced to join a specific union or constitutes a threat against the employee's basis of existence or is otherwise of a similar drastic character, the discrimination may be contrary to the right to freedom of association under article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

contacts

Marianne Lage

Partner

Maria Schmiegelow

Attorney