Yesterday, the European Court of Human Rights in Strasbourg issued an important ruling on the Norwegian dockworkers’ monopoly.
In several European countries, port labour is still organised on a monopolistic and corporatist basis, more specifically an exclusive right for a closed pool (i.e. a labour reserve organised as a unique employment agency for the entire port), which is controlled by a dockers’ union. Individual port companies have little or no say in the organisation of the work, and external job-seekers are barred or confronted with all kinds of obstacles.
The Norwegian trade unions had gone to the Court in Strasbourg following a ruling by the Norwegian Supreme Court. The latter Court had declared a boycott by a dockers’ union against a port company, aimed at imposing the employment of its own members, to be illegal. The Norwegian Court ruled that such a boycott, aimed at imposing the monopoly of a dockworkers’ pool, goes beyond normal industrial action, threatens to deprive other workers of their jobs and violates the freedom of establishment of the port companies. The Norwegian Supreme Court came to this conclusion after a crystal-clear 2016 ruling by the Court of the European Free Trade Association, which applies the same rules as the Court of Justice of the EU in Luxembourg, and had found the monopoly illegal across the board.
The unions argued in Strasbourg that the Norwegian Supreme Court’s ruling impinged on the freedom of association, which is protected by Article 11 of the European Convention on Human Rights. The trade unions complained that their right to engage in industrial action was curtailed.
However, the Human Rights Court rejected this argument and fully upheld the judgment of the Norwegian Supreme Court.
The practical lesson is that boycotts to impose an illegal dockers’ monopoly are themselves illegal. This is relevant for all countries where trade unions try to force companies through industrial action to employ their members, and to keep other workers or service providers out of the docks. The Human Rights Court took into account the court cases on dockers’ monopolies in Belgium and Spain. The ruling is indeed important for all countries where a dock labour monopoly still exists.
On 31 May 2021, the Spanish Audiencia Nacional issued another important ruling on port labour monopolies. The Audiencia Nacional is the Spanish Supreme Court for Criminal, Administrative and Labour Affairs. The national employers’ association Asoport had sought the annulment of a series of clauses in the national collective agreement on port labour. In 2014, the EU Court in Luxemburg had already declared the monopoly of Spanish port pools to be contrary to EU law.
The Spanish Supreme Court now ruled that all clauses on the privileges of pool companies, pool workers and trade unions are indeed null and void. The annulled collective bargaining clauses regulated the special status of pool workers and their priority for employment in the port. They restricted the free choice of personnel for the companies and imposed training requirements that went beyond the applicable laws and regulations. They imposed trade union intervention in recruitment, as well as compulsory gang compositions, submonopolies based on a classification of workers into job categories and the compulsory takeover of pool workers when a company decided to stop working with the pool.
The Spanish Supreme Court explicitly denounced the fact that since the 2014 ruling of the EU Court in Luxembourg, there has been no change on the ground. There is still 1 exclusive labour provider per port, controlled by the trade unions. The Court notes that this is due to strike and boycott actions and the illegal imposition of the takeover of pool workers on companies wishing to leave the pool. Finally, the Court finds that existing Spanish port companies, which were forced to work with the pool, are disadvantaged compared to new entrants, who do not suffer from the social liabilities of the old illegal monopoly. The Spanish Supreme Court also refers, among other things, to the court cases concerning dock work in Belgium.
The practical implications of the Spanish ruling, which is largely based on EU law, are also far-reaching. The Court specified the many consequences of the illegality of a monopolistic dock work system, which can even extend to matters such as vocational training, the composition of gangs and professional categories.
The two recent judgments confirm the findings of the Portius port labour study for the European Commission from 2013-2014. That study had found that an increasing number of European countries regulate port work on the basis of ordinary labour law, but also that anachronistic and inefficient monopolies still exist. The rulings also confirm that governments and social partners are often unable to normalise port labour, and that the judiciary often has to bring the solution.