ILOlle vuonna 2011 annettavat raportit ratifioitujen yleissopimusten soveltamisesta

Työ- ja elinkeinoministeriö
PL 32
00023 Valtioneuvosto

TEM/825/04.03.02./2011

Suomen Ammattiliittojen Keskusjärjestö SAK ry täydentää 27.6.2011 päivättyä lausuntoaan, viite SAK 7729/2011, tällä lausunnolla seuraavasti:

Yleissopimus Nro 87 Ammatillinen järjestäytymisvapaus ja ammatillisen järjestäytymisvapauden suojelu (1948).

Viittaamme siihen, mitä olemme raportoineet yleissopimuksen nro 98 osalta ja toteamme lisäksi seuraavaa:

Labour Court Judgment SLSY v. ASSI and Finnair

The Labour Court (The Labour Court is in Finland the single national instance and exclusively competent to decide on disputes involving interpretation and breach of a collective agreement when the employer is a member of the employer organisation concluding a collective agreement. The operation of the Labour Court is based on the principle of tripartism. The president, the vice-president and two other members are appointed from among persons having the legal degree required for judges and who cannot be considered to represent either employers’ or employees’ interests. Other members are appointed upon the nomination by the most representative central organizations of the employers’ and employees’ associations).rendered on 9 October 2009 its judgment (TT:2009-90) in case Suomen Lentoemäntien ja Stuerttien Yhdistys SLSY (Finnish Air Hostesses&#;8217 and Stewards’ Association SLSY) v. Palvelualojen Toimialaliitto (Association of Support Service Industries, ASSI) and Finnair Oyj. The case necessitates reporting as it entails a violation of the SLSY’s bargaining rights under Conventions No. 87 and 98.

The collective agreement in force in 2008 between SLSY (a member organization of the SAK) and ASSI (hereinafter referred to as “SLSY-ASSI agreement”), covering the cabin crew in the Finnish air line companies, included a full range of terms and conditions of employment, such as those on pay, working time and rest arrangements, holidays etc. The agreement also included the following clause (hereinafter referred to as “SLSY-ASSI clause”):

Agreements concerning subcontracting or hiring-out of manpower are equipped with a clause where the subcontractor or lessor of manpower binds itself to comply with this collective agreement and labour and social legislation.

Finnair, a member of ASSI and therefore de jure bound by the collective agreement concerned, concluded for the winter season 2008-2009 an agreement with the Spanish company Air Europa on the so-called wet lease of the latter’s air plane so as to operate Finnair flights between Helsinki and Thailand. A wet lease agreement means (i.a.) that the air plane is leased with the cabin crew. The wet lease agreement with Air Europa did not contain the above clause on subcontracting or hiring-out of manpower but the lower pay and other terms and conditions of employment in a Spanish collective agreement were applied, in accordance to a reference in the wet lease agreement to the application of that collective agreement. Finnair’s ex-CEO publicly announced that Finnair this way saved 1.1 M€ during six months.

SLSY sued ASSI and Finnair before the Labour Court and claimed a confirmation that Finnair had knowingly breached the SLSY-ASSI agreement and that ASSI, as a party to that collective agreement, had neglected its active surveillance obligation over its member Finnair. Furthermore, SLSY claimed a compensatory fee against ASSI and Finnair.

In the proceedings Finnair maintained that the SLSY-ASSI clause was invalid as violating the free movement rights in the EU, notably the freedom to provide services. This plea led to the initiative of the Court on a further debate about the effect in this case of the judgments Laval, Rüffert and Luxembourg of the Court of Justice the European Union (CJEU, Cases C-341/05 Laval, C-346/06 Rüffert and C-319/06 Commission v. Luxembourg.), as well as about that of Article 49 of the EC Treaty (now Article 56 of the Treaty on the Functioning of the European Union) on the freedom to provide services. These judgments mean that the Posted Workers Directive’s (96/71/EC; hereinafter “directive”) list of terms and conditions of employment applicable to posted workers is exhaustive.

SLSY found that the directive was applicable to the Spanish cabin crew which ASSI and Finnair denied, based on the idea of the applicability of the law of the home state (SLSY also found that, as such, there are solid grounds for challenging the interpretation line of the directive reflected by the above CJEU judgments. Such a challenge can be based on the fundamental right to freedom of association that also covers the right to collective bargaining, as confirmed in the monitoring practice of Conventions No. 87 and 98, as well under the European Human Rights Convention (see case Demir, judgment of 12.11.2008, application No. 34503/97, para. 154, and para. 157 on the status of a collective agreement resulting from the bargaining). However, the SAK does not deepen this aspect here because the violation of the SLSY’s bargaining rights is evident irrespective thereof).

Further, the SLSY submitted that while the Directive’s list of host state terms and conditions applicable to posted workers anyway includes the provisions on working time and rest periods, paid annual holidays and minimum pay, and the wet lease agreement on the other hand did not contain a clause obliging the subcontractor to apply those provisions in the SLSY-ASSI agreement, the breach of the subcontracting clause in that agreement by Finnair was already true, without any contradiction with EU law. Therefore, it was not needed to discuss further the above CJEU judgments in the proceedings before the Labour Court. Furthermore, SLSY found that in any case pay provisions, working time and holiday provisions were on the basis of settled case-law acceptable restrictions under Article 49 EC.

In its judgment the Labour Court did not take any position as to the applicability of the Posted Workers Directive but found that restrictions of free movement of services couldn’t receive under Article 49 EC a treatment more lenient than that under the Directive. Furthermore, it found that the SLSY-ASSI collective agreement also included many detailed provisions outside the directive’s list of terms and conditions applicable to posted workers, as well as a reference to the entire social and labour legislation of Finland. It therefore concluded that finding for the plaintiff would also mean that a clause on the subcontractor’s obligations, which surmounts the minimum protection of the posted workers allowed under EU law, would contradict the freedom to provide services in a manner prohibited by Article 49 EC (now Article 56 TFEU). This conclusion was not rubbed by the possibility to include in the SLSY-ASSI agreement a more limited and obviously legally valid clause on the subcontractor’s obligations. However, Finnair neither had an obligation to include the SLSY-ASSI clause in the wet lease agreement nor was it obliged to explore what kind of more limited and thereby legally valid clause would have been possible. As a consequence, the whole suit was rejected.

The judgment was rendered by vote, the two judges appointed upon nomination by the employee organizations finding, based i.a. on the ECrtHR judgment Demir, in favour of the plaintiff.

Assessment

As a preliminary comment the SAK finds that EU law cannot validly restrict the rights inherent in freedom of association (such as the right to collective bargaining), as covered by the ILO Conventions No. 87 and 98 (see, by analogy, the CEARC comments in the BALPA case, Report of the Committee of Experts on the Application of Conventions and Recommendations, 2010, p. 208-9). Collective bargaining is one of the main objectives of freedom of association (Freedom of Association; Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO (ILO Digest), paras 880-882.) and Convention No. 98 requires promotion of voluntary bargaining by the Member States. It is natural that the protection of the right to collective bargaining also means protection for the collective agreement resulting from the bargaining because such agreement constitutes an essential means to promote the interests of the union members (Also see, by analogy, the judgment Demir, para. 157). The SAK also recalls that the coverage of a collective agreement has been recognized as a valid item for collective bargaining in the ILO practice (ILO Digest, para. 913). In this case the SLSY-ASSI clause regulated the collective agreement’s factual coverage.

The SLSY-ASSI clause also meant to protect the level of terms and conditions of employment of the SLSY members and at the same time to guarantee the same level to the employees of the subcontractors. Further, the clause also meant to regulate key terms and conditions of employment although it admittedly included a general and originally pre-EU era reference to the Finnish social and labour legislation.

The Labour Court clearly meant that a clause in the SLSY-ASSI agreement as limited on issues covered by the directive’s Article 3(1), such as working time, rest periods, paid annual holidays and minimum pay would have been acceptable. However, the outcome in the judgment meant that the purpose of the SLSY-ASSI clause, essentially imposing the employer to grant the Spanish cabin crew the working time, rest, holiday and finally pay conditions in the SLSY-ASSI agreement, was completely ignored; in fact, the clause was de facto completely annulled because it included an element contrary to EU rules on freedom to provide services. This amounts to a violation of the SLSY’s bargaining rights under Conventions No. 87 and 98.

Yleissopimus Nro 98 Järjestäytymisoikeuden ja kollektiivisen neuvotteluoikeuden periaatteiden soveltaminen (1949).

Lisäksi viittaamme siihen, mitä olemme edellä raportoineet yleissopimuksen nro 87 osalta.

Suomen Ammattiliittojen Keskusjärjestö SAK ry