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ECJ endorses the Danish social partners' Cooperation Agreement

April 2010 - Employment. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

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The Information and Consultation Directive does not require a higher level of protection for employees sitting on a cooperation committee – this was recently established by the European Court of Justice.

The Information and Consultation Directive prescribes that employees elected to a cooperation committee (the Danish term for a works council) must enjoy adequate protection to enable them to carry out their committee duties. In Denmark, the Directive is implemented by statute, but with an option - as envisaged in the Directive - for the social partners to implement the Directive by collective agreement instead (in which case the implementing act will not apply).  

That option was used by the Confederation of Danish Employers (DA) and the Danish Confederation of Trade Unions (LO) in their Cooperation Agreement. The Cooperation Agreement lays down the framework for cooperation by management and labour at the workplaces covered by the Cooperation Agreement and it also covers employees who are not members of an organisation under the Confederation of Danish Employers or the Danish Confederation of Trade Unions.  

In the case at hand, the question put to the ECJ was whether the Cooperation Agreement afforded an employee, who was not a member of a trade union under the Danish Confederation of Trade Unions, the minimum protection required by the Directive.  

Dismissed on normal notice
As part of general cutbacks, an employer decided to dismiss an employee who was also a member of the cooperation committee. The Cooperation Agreement entitles cooperation committee members to an extended period of notice, but the employee in question was already entitled to six months' notice under the Danish Salaried Employees Act. His period of notice was therefore not extended as a result of his membership of the cooperation committee. Nor was there any additional protection in the employment - other than the usual right to a fair dismissal.   The employee sued the employer. In the High Court, however, doubts arose as to how to interpret the Directive. The Court therefore referred a number of questions to the ECJ for a preliminary ruling.  

Higher level of protection not required
The ECJ ruled that the Directive must be construed so as to not preclude an employee from being covered by a collective agreement even though the employee is not a member of the union that is a party to the collective agreement. The ECJ further ruled that the Directive contains no requirements for a higher level of protection for employee representatives on cooperation committees - such as an extended period of notice - but only requires the minimum protection prescribed in article 7 of the Directive.