TRADE unions have formally asked the Dutch court of appeal to reconsider a recent provisional ruling that seafarers cannot be banned from conducting cargo handling operations.
The issue arises out of the so-called dockers’ clause — officially named the Non-Seafarers’ Work Clause — negotiated between the International Transport Workers’ Federation and the International Maritime Employers’ Council through the International Bargaining Forum mechanism.
The wording is based on the agreement by both sides that forcing seafarers to undertake cargo handling exposes them to the dangers inherent in the task and increases the risk of accidents at sea on vessels made unsafe by badly lashed containers and other cargo.
The latest iteration, which came into force in 2020, extended earlier prohibitions to take in work historically done by crew, including lashing on smaller ships.
But legal action in the Netherlands was launched by a group of charterers led by Marlow Navigation and also including BG Freight Line, Samskip, Unifeeder and Eucon, which contended that the clause is invalid.
The Hague-based judicial body set out its findings in a recent interlocutory judgment, ruling that the clause impedes the provision of services in the European Union and cannot be justified by overriding public interest.
However, final judgment was stayed pending a request to the European Court of Justice for guidance on points of EU law, including the balance between economic freedoms and social rights in the context of the internal market.
The outcome could have far-reaching implications for trade unions across Europe, both in the maritime sector and more broadly.
According to an analysis from Dutch law firm AKD, the decision was made on the basis that free movement of services may only be restricted if that pursues a legitimate objective, and is justified by overriding reasons of public interest, such as the protection of workers.
But the dockers’ clause does not meet these conditions, and the protection of seafarers is at best a secondary objective.
Nor is the stipulation being applied systematically, coherently and consistently, as it is dependent on the availability of qualified dockers and their membership of an ITF-affiliated union.
But the International Transport Workers’ Federation, backed by two Dutch affiliates, contends that these points must be clarified in a manner that upholds EU-guaranteed rights to collective bargaining and social dialogue.
Its counterargument is that interim judgment is based on incorrect assumptions and does not violate the principle of free competition.
It believes the ITF does not constitute an “undertaking” within the meaning of EU competition law, as it is a trade union federation and not a service provider.
The NSWC is therefore not an unjustifiable breach to the freedom to provide services within the EU, as established EU case law protects collective action and the autonomy of social partners.
In consequence, the court of appeal should rephrase the preliminary questions it intends to send to the CJEU.
Livia Spera, general secretary of the European Transport Workers’ Federation, which is part of the ITF structure, said: “When a court questions well-established principles of collective bargaining, even in one sector, it risks weakening it everywhere.
“Europe’s transport systems rely on skilled, organised workers, and those workers rely on strong collective agreements.
“We expect the Dutch court to uphold the European model of social dialogue, not to undermine it.”
Should the court decline to make these corrections, the ITF has also requested approval to lodge an interim appeal with the Dutch Supreme Court.
The European Trade Union Confederation has also requested permission to intervene in the appeal proceedings.
The full judgment is available online, in Dutch, here.
