In a press release/customer advisory from APMT Gothenburg on Friday
afternoon, the company stated that it has rejected the SDU's latest
compromise proposal.
<font>APMT
Gothenburg's press release on Friday the 2nd of June also stated that
the company had not received a written presentation of the SDU's latest
compromise proposal. The claim is incorrect. As requested by
Maersk/APMT, an extensive reasoning text concerning the CBA issue and
the SDU's concrete compromise proposals was sent to and received by
Maersk/APMT on Thursday morning, the 1st of June. As the text might also
serve to clarify the union's position on the CBA issue at APM Terminals
Gothenburg to other port stakeholders, it is published below:
<u>The CBA Issue at APM Terminals Gothenburg</u>
Background
<font>Founded
in 1972, the Swedish Dockworkers' Union (SDU) was early on engaged in
two national contract disputes- in 1974 and in 1980- where it attempted
to win its own national CBA with the employers´ organization. Both
attempts to win this CBA were unsuccessful, and therefore the SDU sought
other ways to represent its members and to carry out union work in
Swedish ports.
In most ports with SDU members, a practice developed where the SDU was
integrated in the Health & Safety organizations, and included in all
local negotiations concerning terms and conditions. The Port of
Gothenburg was no exception. The SDU regarded itself- together with the
minority Swedish Transport Workers' Union (STWU)- as party to agreements
made, even though they were not allowed to sign the actual agreements
or to be a stakeholder in the CBA´s.</font><font>
<font>When
APM Terminals took over Gothenburg's container port, the company
management (alongside DFDS, a neighboring Ro/Ro operator) raised the
issue of signing a CBA with the SDU, recognizing that a vast majority of
the dockworkers in the terminal were SDU members [some 85% of the
dockworkers at APM Terminals]. The SDU confirmed they were willing to
proceed with the signing of a CBA, but voiced concern with political,
judicial, and practical obstacles that had hindered such a solution in
the past. The SDU also stated that such a solution would be best sought
in dialogue with other parties, noting that efforts to exclude the STWU
or the employers´ organization Ports of Sweden could lead to new
problems. After making enquiries, the local employers decided not to
pursue the signing of a CBA with SDU, and the previous practice was kept
in place.</font><font>
The APM Terminals – Gothenburg Dispute did not start off as a conflict
concerning the CBA. The SDU tried to address several local issues and
repeatedly stated that a solution could be sought either within the
framework of a CBA or without a formal contract (according to previous
practice). As the conflict progressed during the second half of 2016,
the SDU was barred from negotiations. APMT stated that the SDU would be
stripped of all union rights that were not mandatory for non-CBA
stakeholders according to Swedish law. From the autumn of 2016, APMT
demanded and publically promised customers that a solution to the
dispute would have to be based on a CBA. This statement served to corner
all involved parties and to severely limit the number of feasible
solutions. However, the SDU recognized the right of APMT to do so, and
has since sought a mutually acceptable solution to the CBA issue, with
respect to the core issues of the original dispute and in an effort to
address and resolve production problems at the terminal.
The CBA Framework and Challenges
The Swedish Labor System
The Swedish Labor System states that any union that signs a CBA with an
employer gives up its right to take industrial action. Basically, the
right to strike is traded for other rights awarded to a CBA stakeholder
for as long as the contract is valid. The SDU fully accepts this rule
and is willing to make that trade-off, if the union in practice actually
gets the same level of influence as any other union which is primary
party to a CBA in the Swedish Labor market.
The National CBA
The practical challenge for all parties involved in this dispute is that
APM Terminals is already covered by the national CBA between the
employers´ organization Ports of Sweden and the STWU, which therefore
applies to all dockworkers in the container terminal regardless of union
affiliation. When national contract negotiations for the ports started
this year, the SDU made a concrete proposal
to transform the existing national CBA between the STWU and Ports of
Sweden into a tripartite agreement between SDU, STWU, and Ports of
Sweden. The proposal was rejected and the national framework remains the
same: A new three-year contract has been signed between STWU and Ports
of Sweden.
Conflicting Contracts
There are no legal obstacles preventing APMT and the SDU from signing a
CBA that covers terms and conditions appliable to SDU members at the
container terminal. It is legal for the SDU to fight for such a CBA and
it is legal for APM Terminals to agree to it. The Swedish Labor Court
clarified this again in case on May 17, 2017.
However, if APM Terminals has two different CBA´s covering the same
group of employees (dockworkers), legal issues could arise with regards
to which CBA should be applied to any particular situation. In the
Swedish labor market, this is generally handled with an inter-union
framework. When no such framework exists, however, the basic legal
principle is that the oldest CBA should be applied. This means that if
APM Terminals and the SDU sign a CBA concerning SDU's members without
involving the STWU, the company could be fined in court for breaching
their first CBA by applying the later.
APMT's Proposal: Side Letter to the CBA
For the last seven or eight months, APMT Gothenburg has proposed that
the SDU sign a side letter, committing the majority union to all
existing and future CBA´s between the minority union STWU and Ports of
Sweden/APM Terminals. By doing this, the SDU would gain some formal
rights – the right to paid union time, the right to information, the
right to automatically be summoned to negotiations.
Since December, the SDU has continuously asked to see the full catalogue
of CBA´s that it is supposed to commit to in this proposed solution,
and likely in any other CBA solution as well (including the new CBA´s
established since the SDU was excluded from negotiations). The company
has yet to presented this catalogue.
The SDU has rejected APMT's side letter proposal on the grounds that it
would not, in practice, make the majority union- the SDU- an equal
stakeholder but a rather a subordinate stakeholder to the STWU. Such a
solution would mean that even though the SDU would have the right to
participate in initial negotiations about new work patterns, layoffs, or
production models, the majority union could then be by-passed and left
out of an agreement between APMT and the STWU. The new CBA would
automatically bind the SDU and all of its members. There are no legal or
economic incentives for either the STWU or APMT to seek compromises
with the SDU within such a framework, as the majority union would lack
both the right to take industrial action and the legal tools awarded to
any fully recognized CBA stakeholder. Such an unequal CBA relationship
between the SDU and APMT, and between SDU and STWU, does not provide the
groundworks for a fair or sustainable working relationship. </font></font></font>
<font><font><font>
The SDU Compromise Proposals
</font></font></font>
<font><font><font>
<font>Normally,
any union that signs a CBA also has the right to appoint Health &
Safety Officers as well as a Head Health & Safety Officer. However,
there is no legal precedent on how the H&S issue should be handled
if there are two ¨competing¨ unions who both have signed CBA´s regarding
the same group of employees. Any principle decided upon by APMT – for
example the majority union in each sector of the workplace appoints the
H&S Officer – may be legally challenged if it infringes on the
rights of any of the unions. If the Swedish Labor Court rules that such
matters should be settled by the principle that the union that signed
the first CBA takes precedence, then the SDU would not have the right to
appoint H&S Officers or a Head Health & Safety Officer even if
it has signed a CBA. To address this issue, the SDU has proposed that in
any CBA solution, the Health & Safety issue should be regulated in a
separate CBA that secures the SDU's right to appoint H&S Officers
as well as a Head H&S Officer. To minimize the risk of conflicting
contracts, we believe it could be safer not to try and decide on any
general appointment principle that might be considered to infringe on
the STWU's rights in this regard. If APMT does not live up to its
commitments towards SDU regarding H&S Officers, such a contract
could either open up for legal action or the possibility for the SDU to
opt out of the whole CBA arrangement.
A Side Letter to the CBA with Supplements
In order to find a long-term solution, the SDU sought compromises
connected to APMT's own side letter proposal. This winter, we made
several proposals for supplements to such a side letter in order to- in
practice- gain the same obligations, rights, and influence as a fully
recognized CBA stakeholder. APMT rejected these proposals by saying that
the SDU seeks a “veto” power in response to APMT making new agreements
with the STWU when the majority union disapproves. There is merit to
such a claim only if the company means that the STWU hold such a “veto”
right against APMT making new agreements with the SDU in the company's
own proposal. The SDU does not seek a “veto” right, but merely seeks the
same right as any other union signing a CBA in the Swedish Labor
market. The SDU seeks a framework which pushes all parties to
continuously seek mutually accepted agreements involving SDU, STWU and
APMT. The SDU remains open to any alternative suggestions of how this
could be achieved.
A Local Tripartite CBA
While a tripartite agreement was once again rejected on the national
level, the SDU considers a local tripartite agreement at APM Terminals
as the best long-term solution to maintain stable labor relations in the
workplace. A tripartite CBA would include instruments to handle
inter-union disagreements and remove all risks connected to conflicting
CBA´s, as well as securing equal standing of all respective unions in
relation to the company. According to the mediators, APMT accepted this
proposal but the STWU rejected it. As such a solution is dependent on
the approval of the STWU, the SDU has limited means to influence the
STWU and has no intention of fighting the minority union in order to
force them in that direction.
A parallel identical CBA (“mirror agreement”)
The SDU's latest proposal, presented before APMT's lockout was launched,
is an attempt to try to accommodate all the concerns raised by involved
parties and work around the obstacles. The SDU suggests a structure of <font>parallel
identical CBA's covering SDU members at the terminal, mirroring all
existing national and local CBA´s concerning the dockworkers. The SDU
has been part of negotiations and agreements since the container
terminal was first built, so the union regards itself as part of those
agreements it is familiar with and can sign them immediately. The
reservation for such a solution is that the SDU cannot 'in blanco' agree
to sign CBA´s it has not participated in forming or does not know
about, especially from the last 6-month period when the union has been
shut out of negotiations. Such exceptions need to be identified and
reviewed. In these cases, and on current issues that need to be solved
quickly (perhaps within the company's proposed working groups) in order
to establish an effective and reliable production, the union proposes
immediate direct talks (preferably including the STWU) with the goal of
reaching mutually acceptable parallel identical CBA´s as well.
Such a solution is less than optimal from the SDU's point of view, but a
structure of independent but identical CBA´s gives the SDU more legal
tools and bring it closer to an equal standing with the STWU in relation
to APM Terminals. Contrary to the tripartite solution, this proposal is
not dependent on STWU's approval. Furthermore, it does not carry the
risk of conflicting contracts covering the same group of employees (with
the risk of legal challenges for the company) as the contract wording
is identical. If the company continues to concern itself with reaching
identical agreements with both dockworker unions, the exposure remains
limited. This option is legal, practically manageable, and immediate.
<font>[An
alternative to this, which in some regards would allow all parties more
space to manoeuver, would be to establish a largely but not fully
identical structure of CBA´s between the SDU and APMT covering the SDU´s
members, while at the same time reaching a separate agreement with the
STWU where the minority union relinquishes it's right to take legal
action if the different contracts conflict in relation to SDU members.
This would mean APMT could freely apply CBAs with the SDU on SDU members
even if they in part conflict with the company's CBA´s with the STWU.
This, however, is once again dependent on the STWU's approval, which the
SDU cannot influence and is a less preferable option than a tripartite
agreement.]</font><font>
<font>The
SDU remains open for feedback or other suggestions. The union continues
to invest a lot of time and resources in trying to find a mutually
acceptable solution to the CBA issue in accordance with the company's
demand, and feels the need to receive constructive response from
APMT. It needs to be stressed once again that the primary concern of the
SDU is to resolve the local issues at hand - with or without a final
solution to the CBA issue- not only to end the dispute but to try to
rebuild an efficient and reliable terminal.</font></font></font></font></font></font></font>
Swedish Dockworkers Union
Länk: http://hamn.nu/article/2438/The-CBA-issue-and-the-SDUs-compromise-proposals.html
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