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Supreme Court of Denmark

The Dispute Board's decisions were not void 

Cases no. 548/2006 and 585/2006
 

United Federation of Danish Workers (3F) acting for A
and
United Federation of Danish Workers (3F) acting for B
vs.
The Employers' Association of Danish Restaurant Owners – 2000 acting for Café C
and
Nyhavn's Employers' Association of Restaurant Ownersacting for Restaurant D

and

The Disputes Board
vs.
The Employers' Association of Danish Restaurant Owners – 2000 acting for Café C
and
Nyhavn's Employers' Association of Restaurant Owners acting for Restaurant D

A decision from the Disputes Board could not be tried by the courts due to lack of cause of action. Another decision from the Disputes Board was not void, and the case was remitted for further action to the High Court.

In one of the cases, A was employed as an apprentice chef in Café C. A dispute arose between A and C regarding which collective agreement applied between them.  A brought the case before the Disputes Board which agreed with C that the apprentice collective agreement between HORESTA and 3F did not apply to the parties. Neither party appeared when the Disputes Board later was due to consider an issue regarding back pay of salary to A, for which reason the issue was dropped without consideration.
Then, the Employers' Association of Danish Restaurant Owners – 2000, acting for C, referred the case to the courts claiming that the Dispute Board's decision was void due to the composition of the Board and that A should recognise that the salary had to be fixed in accordance with the collective agreement between Employers' Association of Danish Restaurant Owners – 2000 and the Christian Trade Union.
The Supreme Court ruled that C did not have a current and concrete interest in having the issue of the Disputes Board's decision tried by the courts, as there was no current conflict between A and C. In addition, the Supreme Court stated that if the Employers' Association of Danish Restaurant Owners – 2000 wished to have the courts consider the Disputes Board's composition, it had to be by way of a declaratory action instituted by the organisation. The Supreme Court also noted that C had not proved that it had an interest that could justify the Supreme Court considering which collective agreement etc. applied to the relationship between A and C.
The case regarding C was, thus, dismissed by the courts.
In the other case, B was employed as an apprentice chef in Restaurant D. When B at one point did not show up for work, a dispute arose between B and D concerning the legitimacy of B's absence. D referred the matter to the Disputes Board where B's claim that his absence from D was justified was upheld, which meant that D's termination of the apprenticeship was unjustified. The issue before the courts was whether the Disputes Board's decision was void due to the Board's composition.
The Supreme Court declared that the concept of "the organisations authorised to negotiate" in S. 64(2) of the Danish Vocational Education Act must be interpreted to mean the organisations that represent the required expertise within the relevant field by virtue of their membership coverage and collective agreement coverage in the field and by virtue of their contribution to the organisation of the apprenticeship education. Consequently, it was justified that it was HORESTA and 3F that had appointed ad hoc members for the Disputes Board for the hearing of this case. The composition of the Board did not infringe the European Convention on Human Rights and none of the Board members were disqualified under the administrative law.
The decision of the Disputes Board was, thus, not void, and the Supreme Court remitted a claim for payment against B for further action to the High Court.
In both cases, the High Court had reached different conclusions.  

 

To the top Last modified: 20-03-2009 
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