CEDH · CASELAW;COMMUNICATEDCASES;ENG — 26 mars 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } Published on 15 April 2024   FIRST SECTION Application no. 25947/23 SWEDISH DOCKWORKERS’ UNION against Sweden lodged on 15 June 2023 communicated on 26 March 2024 SUBJECT MATTER OF THE CASE On 5 March 2019 the applicant, the Swedish Dockworkers’ Union ( Svenska Hamnarbetarförbundet ), entered into a collective agreement (“the secondary agreement”) with Ports of Sweden ( Sveriges Hamnar , an employers’ organisation). Ports of Sweden had already, in 1974, entered into a collective agreement (“the primary agreement”) with the Swedish Transport Workers’ Union ( Svenska Transportarbetarförbundet ). As a member of Ports of Sweden, the company Gothenburg Ro/Ro Terminal AB (“the employer”) was bound by both agreements, which were identically worded. On the basis of the secondary agreement the applicant union claimed damages from the employer for exceeding the stipulated limits on overtime concerning seven workers who were members of the applicant union. The employer contested the claim. The applicant union brought the case before the Labour Court. The parties agreed that the overtime of the seven employees had exceeded the limits on overtime, which were regulated by identical provisions in the two agreements. However, the employer contested the applicant union’s claim for compensation on the grounds that it was only bound to apply the provisions on overtime in the primary agreement and, since the applicant union was not a party to that agreement, it had no right to damages. In a judgment of 26   April 2023, the Labour Court found that the simultaneous application of the relevant provisions of the two agreements could be unduly burdensome for the employer. This was due to the fact that, even though the provisions were identically worded, the parties could have different views on their meaning and application in a specific situation. Relying on domestic precedent, the Labour Court gave preference to the primary agreement. The relevant provision in the secondary agreement was thus found inapplicable, which meant that the applicant union was not entitled to damages. When adjudicating the case, the Labour Court was composed of three professional judges and four lay judges. Lay judges in the Labour Court are nominated by three organisations representing employers and three confederations of trade unions. In all proceedings the bench must include an equal number of lay judges nominated by organisations representing employers and lay judges nominated by confederations of trade unions, so as to ensure a fair balance. The Labour Court’s judgments are not subject to appeal. The applicant union complains that the Labour Court’s judgment violated its rights under Articles 11 and 14 of the Convention. The applicant union submits that, as a consequence of the judgment, it has no effective sanctions against the company for breach of the secondary agreement, having adverse effects on the situation of the employees. Hence, the applicant union, which organises a majority of all organised workers in the sector and at the company in question, is deprived of its right to protect its members’ interests in the workplace. This in turn makes it less attractive to be a member of the applicant union than of the Swedish Transport Workers’ Union. Moreover, the applicant union complains that the lay judges were not impartial, as required under Article 6 § 1 of the Convention, since they had been nominated by organisations which had previously worked to limit the influence of the applicant union and the impact of secondary agreements in general. The applicant union points out that, while the Swedish Transport Workers’ Union is a member of one of the confederations of trade unions nominating lay judges to the Labour Court, the applicant union is not. QUESTIONS TO THE PARTIES 1.     Has the applicant union exhausted all effective domestic remedies, as required by Article   35 §   1 of the Convention?   In particular, did the applicant union rely before the Labour Court, at least in substance, on the right under Article 6 § 1 on which the applicant union now wishes to rely before the Court? If not, would that have been an effective remedy within the meaning of Article 35 § 1?   2.     Was the court which dealt with the applicant union’s case impartial, as required by Article   6 §   1 of the Convention?   3.     Has there been an interference with the applicant union’s freedom of association, in particular the applicant union’s right to form and join a trade union, within the meaning of Article   11 §   1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article   11 § 2?   4.     Has the applicant union suffered discrimination in the enjoyment of its Convention rights, contrary to Article 14 of the Convention read in conjunction with Article 11?