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Collective Bargaining in Labour Law Regimes

Part of the book series: Ius Comparatum - Global Studies in Comparative Law ((GSCL,volume 32))

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Abstract

The chapter embarks on an analysis of the regulatory system of collective bargaining in Denmark and its particularities, which naturally encompasses the voluntarist nature of the model. The analysis gives a brief historical overview of the major developments, i.e. legislative reforms and institutional changes contributing to the current framework for collective bargaining. It then takes a closer look at the social partners as the legislative power on the labour market and the reason behind this structural development. The voluntarist nature and its consequences are then described with reference to the types of collective agreements and their coverage with particular emphasis on non-unionised workers and crown servants. Although the regulation of pay and working conditions is almost entirely left to the social partners by way of collective bargaining, the chapter describes how the legislator can provide assistance to the partners by mediating in industrial disputes and intervene by passing legislation, which has been criticised by the ILO committee. The focus is then directed towards the challenges faced by the Danish model due to the globalisation of the labour market with reference to the free movement of service providers and the mobility of workers. The chapter ends with a conclusion assessing the main advantages of the Danish model and its shortcomings.

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Notes

  1. 1.

    Denmark Population (2018)—Worldometers. http://www.worldometers.info/world-population/denmark-population/. Accessed 19 April 2018.

  2. 2.

    Report WH (2017) World Happiness Report 2017.

  3. 3.

    Hasselbalch (2016), p. 27.

  4. 4.

    WJP Rule of Law Index® 2017–2018. http://data.worldjusticeproject.org/. Accessed 18 April 2018.

  5. 5.

    Hasselbalch (2016), p. 35.

  6. 6.

    Kristiansen (2015), p. 24.

  7. 7.

    Hasselbalch (2016), p. 35.

  8. 8.

    Ibid., p. 26.

  9. 9.

    Ibid., p. 32; Kristiansen (2015), p. 25.

  10. 10.

    Hasselbalch (2016), p. 38.

  11. 11.

    Ibid., p. 44; Kristiansen (2015), p. 13.

  12. 12.

    In 2008 the average on unionization in Europe was less than 25%. Kristiansen (2015), p. 45.

  13. 13.

    ‘European Trade Union Institute (ETUI)—Benchmarking Working Europe 2017 / Books / Publications / Home’, 44 The benchmark does, however shown a small decline in the unionization level from the period 2000–2008 untill now.

  14. 14.

    Dagpengekommissionen (2015), p. 22.

  15. 15.

    There are only three minor exceptions: vocationel trainees are by statutory legislation ensured a minimum wage equal to the wage in the normal collective agreement in the trade in question and the pay of ‘crown servants’ is ultimately fixed by the Parliament, if the organisations do not come to an understanding during the negotiations. And finally, if the job is created as a initiative under the public unemployment scheme, a statutory act requires the pay to be settled according to the collective agreement within the trade. Hasselbalch (2016), p. 135.

  16. 16.

    Ibid., p. 120.

  17. 17.

    Kristiansen (2015), p. 31.

  18. 18.

    Statutory Act no. 1003 of 24/08/2017 on the Labour Court and industrial arbitrations. The English version is available at The Labour Court and Industrial Arbitration Act—Arbejdsretten. http://arbejdsretten.dk/generelt/labour-court/labour-court-act.aspx. Accessed 19 April 2018, p. http://arbejdsretten.dk/generelt/labour-court/labour-court-act.aspx.

  19. 19.

    Statutory Act no. 709 of 20/08/2002 on Conciliation in Collective Disputes.

  20. 20.

    Hasselbalch (2016), p. 51.

  21. 21.

    Kristiansen (2014), p. 112.

  22. 22.

    Hasselbalch (2016), p. 44.

  23. 23.

    Ibid., p. 44.

  24. 24.

    There is a continuous dialogue between the parties with the latest agreement being an agreement on continuing training from October 2017 and an agreement on apprenticeships from August 2016. Trepartsaftaler. http://bm.dk/da/Aktuelt/Politiskeaftaler/Trepartsaftaler2016.aspx. Accessed 19 April 2018.

  25. 25.

    Kristiansen (2015), p. 17.

  26. 26.

    Denmark: Heated debate about introducing minimum wage, Eurofound.

  27. 27.

    Kristiansen (2015), p. 173.

  28. 28.

    COLLECTIVE AGREEMENT WITH ERGA OMNES APPLICABILITY, Eurofound. https://www.eurofound.europa.eu/efemiredictionary/collective-agreement-with-erga-omnes-applicability. Accessed 19 April 2018.

  29. 29.

    Kristiansen (2015), p. 40; The members of the signing organisations are can be seen as ‘parttakers’ rather than ‘parties’ given the very limited right to supplement or deviate from the agreement they are bound by through their membership of the organisation. Hasselbalch (2016), p. 58.

  30. 30.

    Available in English at http://www.da.dk/bilag/General%20Agreement_net.pdf.

  31. 31.

    Hasselbalch (2016), p. 60.

  32. 32.

    Main Agreement between Lo and DA, section 12(1).

  33. 33.

    If the employer is not a member of an employer organisation, the employer can accede to the industry wide agreement by concluded an adoption agreement with a national trade union party to such a industry wide agreement.

  34. 34.

    Hasselbalch (2016), p. 60.

  35. 35.

    Ibid., p. 259.

  36. 36.

    Industrial action used in these situations is known as ‘collective action affecting release’ ibid., p. 260.

  37. 37.

    Kristiansen (2015), p. 32; Kristiansen (2014), p. 310.

  38. 38.

    Kristiansen (2015), p. 14.

  39. 39.

    Ibid., p. 40.

  40. 40.

    The term Non-unionised semantically only suggests non-membership, but for the purposes of this report, the term also includes employees that are members of a trade union, however a trade union that is not party to the collective agreement covering the work of the employee.

  41. 41.

    Kristiansen (2014), p. 213.

  42. 42.

    The contract principle of fordringshavemora.

  43. 43.

    Hasselbalch (2016), p. 251.

  44. 44.

    The Supreme court utilized the principle in its judgement U.2005.332H in which it granted a non-unionised employee a right to protection against dismissal under section 4, subsection 3 in the Main Agreement between DA and LO, which was part of the collective agreement.

  45. 45.

    See Sect. 7 below.

  46. 46.

    Kristiansen (2015), p. 46.

  47. 47.

    Hasselbalch (2016), p. 325.

  48. 48.

    Mailand and Larsen (2017), p. 13.

  49. 49.

    Kristiansen (2015), p. 41.

  50. 50.

    Hasselbalch (2016), p. 81.

  51. 51.

    Statutory Act no 511 of 178/05/2017.

  52. 52.

    Kristiansen (2014), p. 81.

  53. 53.

    Case 1950, complaint date: 22-JAN-98: The Danish Union of Teachers (DUT) and the Salaried Employees’ and Civil Servants’ Confederation (FTF).

  54. 54.

    Kristiansen (2014), p. 429.

  55. 55.

    Enerji Yapi-Yol Sen v. Turkey (Application No. 68959/01).

  56. 56.

    Statutory Act no 1002 of 24/8/2017.

  57. 57.

    Statutory Act no 1177 of 9/10/2015.

  58. 58.

    Current Holiday Act section 6, 10, 20, 21, 27, 30a, 31 and 40.

  59. 59.

    Statutory Act on Temporary Agency Workers, Vikarloven, no 595 of 12/06/2013, Section 3(5).

  60. 60.

    Statutory Act on Holiday, Ferieloven, L 116 2017-18 of 25 January 2018 in force 1 September 2020, http://www.ft.dk/ripdf/samling/20171/lovforslag/l116/20171_l116_som_vedtaget.pdf.

  61. 61.

    These consist of Det faglige Hus (dvs. Funktionærkartellet/Teknikersammenslutningen, Fagforeningen Danmark og 2B – Bedst og Billigst) and Kristelig Fagforening.

  62. 62.

    According to the survey Ibsen (2016), p. 2.

  63. 63.

    An example is the preliminary works on the new Holiday Act, L 116 2017–2018, p. 155.

  64. 64.

    http://www.ft.dk/samling/20171/lovforslag/L116/bilag.htm—Consultation note p. 18f.

  65. 65.

    Hasselbalch (2016), p. 291.

  66. 66.

    Ibid., p. 291.

  67. 67.

    According to Section 1 of the Act no. 709 of 20/08/2002 on Conciliation in Collective Disputes.

  68. 68.

    See Section 3, subsection 3 of the Ac and Hasselbalch (2016), p. 296.

  69. 69.

    See more on the proposal and the right to of the conciliator to combine the solution to several agreements as one proposal, which however is not common practise in conciliation in the public sector, ibid., p. 300.

  70. 70.

    See Section 4, subsection 3 of the Act and ibid., p. 297 It is a prerequisite of the Act, that the conciliator may not propose such a solution in the shape of a new collective agreement renewing the existing one, if there isn’t a reasonable chance of it being approved by the members of the parties.

  71. 71.

    This was the case in the year 1993, where 89% of the members of the Danish Union of Journalists (DJ) voted ‘no’ to the single draft settlement drawn up by the Public Conciliator, which by way of the ‘linking clause’ encompassed the dispute concerning renewal of their agreements with the Danish Newspaper Employers’ Association (DDFF). The single Draft Settlement for the covered renewal of collective agreements that were then in effect in most of the private sector. Kristiansen (2014), p. 501 A complaint by the Danish Union of Journalists (DJ) was brought before the ILO Committee, which in Case no. 1725 expressed its concern that ‘the extension of an agreement to an entire sector of activity - in this case, journalism - contrary to the views of the organization representing most of the workers in a category covered by the extended agreement is liable to limit the right of free collective bargaining of that majority organization and that this system makes it possible to extend agreements containing provisions which might result in a worsening of conditions of work of the category of workers concerned.’

  72. 72.

    Report No 317, June 1999, Case No 1971 (Denmark), para 13.

  73. 73.

    Report No 317, June 1999, Case No 1971 (Denmark), para 35.

  74. 74.

    Report No 317, June 1999, Case No 1971 (Denmark), para 35.

  75. 75.

    Report No 317, June 1999, Case No 1971 (Denmark), para 50.

  76. 76.

    Report No 317, June 1999, Case No 1971 (Denmark), para 52.

  77. 77.

    Kristiansen (2014), p. 504.

  78. 78.

    Ibid., p. 507.

  79. 79.

    See more about the intervention in industrial disputes here: Hansen and Seip (2018).

  80. 80.

    Kristiansen (2014), p. 507.

  81. 81.

    International E Denmark: Union dismay as Government intervention ends teachers’ lock-out. In: Educ. Int. https://www.ei-ie.org/en/detail/2234/denmark-union-dismay-as-government-intervention-ends-teachers-lock-out. Accessed 12 May 2018.

  82. 82.

    Høgedahl and Ibsen (2017), p. 595.

  83. 83.

    Act 409 of 26-04-2013 on the extension and renewal of collective agreement and agreements for certain groups of employees in the public sector.

  84. 84.

    Høgedahl and Ibsen (2017), p. 604.

  85. 85.

    Recently it was discovered that the lock-out was planned by the government and executed by KL, which supports the theory about how a master plan had existed from the outset on how the dispute was supposed to end, Ibid., p. 606. and; ‘Danish Government Orchestrated Teacher Lockout: Former Minister’, 28 September 2017, https://www.thelocal.dk/20170928/danish-government-orchestrated-teacher-lockout-former-minister.

  86. 86.

    Mailand and Larsen (2017), p. 40.

  87. 87.

    Report in which the committee requests to be kept informed of development—Report No 373, October 2014, Case No 3039 (Denmark), para. 235.

  88. 88.

    Report in which the committee requests to be kept informed of development—Report No 373, October 2014, Case No 3039 (Denmark), para. 264.

  89. 89.

    Kristiansen (2015), p. 189.

  90. 90.

    Case C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundets avdelning 1, Byggettan and Svenska Elektrikerförbundet [2007] ECR I-11767.

  91. 91.

    Kristiansen (2015), p. 177 and the traveaux préparatoires to the act implementing the Directive mentioned in Folketingstidende, issue 1999–2000, appendix A, column 1216.

  92. 92.

    Ibid., p. 177 and the political agreement of 21 February 2008 on Denmark’s European policy in a globalised world. The complete text of the agreement was included in the traveaux préparatoires to the statutory act acceding to the Lisbon Treaty, see report of 14 March 2008 from the Parliaments European Affairs Committee on the Bill No 53 amending the Act on the accession of Denmark to ECC and the EU.

  93. 93.

    In question no. 250 a member of Parliament asked the Minister, at what time Denmark had conferred the competency to review industrial actions and the reasonableness of such to the CJEU in relation to the inner market and the Laval-case C-341/05 and the Viking Lin-case C-438/05. The Minister gave the answer that the Lisbon Treaty does not alter the fundamental right of the CJEU to interpret the Treaty and other legislative acts issued by the EU institution.

  94. 94.

    Kristiansen (2015), p. 190; Kristiansen et al. (2015), p. 30 where the author also mentions the case between the Danish trade union 3F and the Italian undertaking Solesi mentioned in the present chapter.

  95. 95.

    Case AR2015.0254.

  96. 96.

    Kristiansen et al. (2015), p. 30.

  97. 97.

    Kristiansen (2014), p. 435.

  98. 98.

    Case AR2015.0083.

  99. 99.

    (2014) S vil forhandle overenskomster på tværs af lande. In: Berlingske.dk. https://www.berlingske.dk/content/item/227093. Accessed 15 October 2018.

  100. 100.

    (2014) Fagbosser dumper forslag om overenskomster over landegrænser. In: Altinget.dk. http://www.altinget.dk/artikel/fagbosser-dumper-forslag-om-overenskomster-over-landegraenser. Accessed 15 October 2018.

  101. 101.

    See European Trade Union Institute (ETUI)—Benchmarking Working Europe 2017 / Books / Publications / Home. https://www.etui.org/Publications2/Books/Benchmarking-Working-Europe-2017. Accessed 18 April 2018 for an analysis on the decline of the unionisation rate.

  102. 102.

    Danish unions stand up to threat to bargaining system | EPSU. https://www.epsu.org/article/danish-unions-stand-threat-bargaining-system. Accessed 11 May 2018; What is wrong in the state of Denmark? In: Your Dan. Life. http://www.yourdanishlife.dk/what-is-wrong-in-the-state-of-denmark/. Accessed 11 May 2018.

  103. 103.

    Declaration of Support to all Public Sector Workers and their Unions in Denmark | ETUC. https://www.etuc.org/documents/declaration-support-all-public-sector-workers-and-their-unions-denmark#.WvXZQ4iFNPY. Accessed 11 May 2018.

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Authors and Affiliations

  1. Department of Law, Aarhus University, Aarhus, Denmark

    Natalie Videbæk Munkholm

  2. Department of Law, University of Southern Denmark, Odense, Denmark

    Christian Højer Schjøler

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Correspondence to Natalie Videbæk Munkholm .

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  1. Faculty of Law, University of Helsinki, Helsinki, Finland

    Ulla Liukkunen

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Munkholm, N.V., Schjøler, C.H. (2019). Denmark. In: Liukkunen, U. (eds) Collective Bargaining in Labour Law Regimes. Ius Comparatum - Global Studies in Comparative Law, vol 32. Springer, Cham. https://doi.org/10.1007/978-3-030-16977-0_8

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