IS THERE IDENTITY BETWEEN CIMBER A/S AND SAS DENMARK-NORWAY-SWEDEN?
The case concerns the question whether there is identity in terms of labour law between Cimber A/S (Cimber) and SAS Denmark-Norway-Sweden (SAS) with the effect that Cimber cannot lawfully renounce SAS' collective agreement with the Cabin Attendants Union (CAU) under the Transfer of Business Act.
CAU claimed that, as SAS and Cimber are both 100 % owned by the Swedish parent, SAS AB, and as Cimber in fact only performs work for SAS, uses the same systems, uniforms etc. as SAS, there is identity between the two companies with the effect that Cimber's renunciation of the collective agreement between CAU and SAS after the takeover of a part of SAS' activities constitutes a circumvention of the collective agreement. CAU was thus of the opinion that Cimber had breached the collective agreement.
Further, CAU claimed that when transferring part of its staff to Cimber, SAS had tried to undermine CAU's rights under the parties' collective agreement.
THE INDUSTRIAL COURT: NO IDENTITY AND RENUNCIATION IS LAWFUL
The Industrial Court took into account that Cimber and SAS had independent management and staff also after the transfer, and that the companies' business areas were different.
The Industrial Court therefore found that it had not been substantiated that there is such identity in terms of labour law between SAS and Cimber that the transfer could not be considered real, or that the purpose of the transfer had been to circumvent CAU's collective agreement with SAS.
For this reason, Cimber was entitled to renounce the collective agreement with CAU, and the court ruled in favour of SAS and Cimber.
The conflict between CAU and SAS/Cimber was subject to significant press coverage as CAU claimed that SAS' and Cimber's actions were not only a circumvention to obtain a cheaper collective agreement, but their actions also jeopardised the "Danish model".
From a legal point of view, the ruling is interesting and quite surprising. It may have moved previous boundaries as to when transactions between affiliated companies make it possible to renounce collective agreements and where identity cannot be established between affiliated companies.
In this case, it was decisive that the Industrial Court, based on a specific assessment, found that there was no identity in terms of labour law between SAS and Cimber. It presumably also played a part that Cimber was already bound by a collective agreement, which did not place Cimber's employees in a less favourable position than if covered by SAS' collective agreement. It will be exciting to follow whether the Industrial Court has generally set a new course, or whether the ruling will stand alone.