The right to undertake industrial actions against an employer already bound by a collective agreement - An analysis in the light of the conflict in the port of Gothenburg

Abstract: The aim of the thesis is to analyse the right to undertake industrial actions and freedom of association, especially in the case where a collective agreement already is in place. The thesis applies mainly three perspectives: a national, an international and lastly one with the concrete use of the ongoing conflict in the port of Gothenburg. To achieve the aim a legal dogmatic method is applied. The conflict in Gothenburg concerns the complex situation where the employer is bound by a collective agreement with Transport, but the third party, Hamnfyran, undertakes actions to attain a collective agreement of their own. Using the report from the mediators, the underlying problems and discussed solutions to the conflict are described. As result, the thesis lays down that the case law from the Labour Court consistently rule equivalent actions as lawful and thus that the legal positon is unproblematic. It is also established that the occurrence of industrial actions against employers already bound by another collective agreement not are a commonality. Further, the thesis describes the unusual occasions the government historically has interfered in the social partners’ otherwise sacred autonomy to undertake industrial actions. Additionally, an international perspective is described. The section scrutinizes the rights within EU, ECHR and ILO. It is concluded that the right to strike is one of the most essential ways to secure freedom of association, but not the only one. Every country has a wide margin to ensure the regulations within the conventions. A union must however have the possibility to be recognized. Further on, these international obligations are applied in a reasoning of de lega ferenda when discussing a potential future restriction of the right to undertake industrial actions. In this reasoning, a principle of proportionality, a rule of representation and a restriction of third party’s right to take action are discussed with consideration of all three perspectives. The thesis also concludes that there in fact are a fair number of potential solutions to the conflict in Gothenburg within today’s legislation, and thus it is questioned whether a restriction is necessary at all.