EFTA Court’s landmark ruling on dockers’ pools
The Court of Justice of the European Free Trade Association States, more commonly known as the EFTA Court, has delivered a landmark judgement on the incompatibility of the monopoly of Norwegian dockers with EU rules on free competition, free movement and human rights.
At stake was the legality of a boycott by the dockers’ unions to force international freight forwarder Holship to accept a Collective Labour Agreement, granting priority of employment for loading and unloading operations to the dockers supplied by the Administration Office, or AO, for dock work in the Port of Drammen.
Under the Collective Agreement, the AO could decide whether it had the capacity to take on an assignment or whether Holship would be allowed to use its own employees. Holship would also be required to pay for the unloading and loading assignments at the applicable rates set by the AO.
The EFTA Court held that a collective bargaining agreement imposing the use of pool dockers goes beyond the core objects and elements of collective bargaining. Also, the exemption from the competition rules applicable to collective bargaining agreements does not cover the assessment of a priority of engagement rule. What’s more, the Court said, a pool agency employing dockers and supplying these to port operators is an undertaking subject to the competition rules.
It also highlighted the notion of abuse of a dominant position which, according to the EFTA Court, could consist of obliging port operators to obtain all or most of their requirements from that undertaking; charging disproportionate prices as a result from the pay rates fixed by the AO for using dockworkers; and reducing incentives for the AO to employ modern technology which could, in itself, imply higher costs for stevedore services.
In addition, the Court held that the pool system is contrary to the freedom of establishment, only protects a limited group of workers to the detriment of other workers, and is contrary to the freedom of establishment.
The fundamental human rights such as the negative freedom of association which is infringed by a closed shop arrangement under which employment as a docker is contingent on the workers joining a trade union, it added.
The EFTA Court judgement considerably reinforces the effect of earlier rules by the European Court of Justice and national law courts, which declared classic pool systems in ports contrary to fundamental treaty principles.
New elements are the explicit confirmation by the Court of the applicability of the competition rules to collective labour agreements establishing a monopoly for pool dockers and the emphasis on the right of employment for non-pool workers, as well as the recognition of the fundamental freedom of workers not to join a dockers’ trade union.
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