Union representatives from AU win industrial arbitration case

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When the university informs an AU employee that they are in line for dismissal, the union representative must be informed either at the same time or immediately afterwards – and be informed of the name of the employee in question. This was the decision handed down in an industrial arbitration case on Monday As a consequence, AU will be forced to change its practice in this area.

2018.06.14 | Lotte Bilberg & Marie Groth Andersen

Joint union representative for university graduates employed in the administration, Anders Kragh Moestrup, and joint union representative for commercial and clerical employees, Helle Colding Seiersen, are pleased about the ruling, which means that the university must change its practice. Photo: Colourbox.com and AU Photo

The issue at stake in the dispute

The issue at stake in the dispute was when a union representative should be informed that the management intends to fire one or more employees – and whether the management has a duty to disclose the names of the affected employees. 

The answer is yes, according to the union representatives at AU, who were backed up by the trade union cartels the Danish Confederation of Professional Associations (AC), the Danish Confederation of Public Employees of 2010 (CO10) and the Confederation of Teachers’ Unions. All agree that this information is necessary to enable union representatives to perform their duties and provide the best possible support to the employee who stands to be fired. 

According to AU, the answer is no. The university has no obligation to disclose the names of the affected employees or to inform union representatives in advance. The Agency for the Modernisation of Public Administration agrees with this position, which AU justifies with reference to issues of personal data security. 

Specifically, the dispute is about the interpretation of Section 3(4) in the agreement on union representatives in the state sector. The agreement states: 

The union representative must be kept informed in connection with planned dismissals of personnel who are not temporary employees, and kept informed to the greatest extent possible about the hiring of personnel and other steps which affect the group of employees in question.

Because the parties were unable to reach an agreement, the case was sent to arbitration, and was ruled on by the Labour Court on Monday. 

According to current practice, AU’s management does not inform the union representatives when one or more employees are in line for dismissal. With the support of their respective unions, the union representatives have contested this practice, arguing that it prevents them from performing their duties to the full. 

And now this practice will have to change. This was the outcome of an industrial arbitration case announced on Monday.

Better prepared in case of dismissals

Helle Colding Seiersen, who is joint union representative for employees under the National Union of Commercial and Clerical Employees at AU, is pleased about the ruling.

“This will hopefully help us to be better prepared in the event that we have a situation with multiple dismissals again,” Seiersen says.

The joint union representative stresses the relevance of the decision to situations involving multiple dismissals because the problem originally arose in connection with the mass layoffs at AU in 2014. But it’s not only in connection with mass layoffs that union representatives now have the right to be informed of the identity of an employee management is planning to dismiss. This also applies in cases involving a single employee.

“This means that we will be able to provide much better support to a member, and that we will be able to take a more proactive approach to these events. So I’m really pleased about the ruling. I only have one criticism, which is that it’s taken four years to reach it. We could have used it before now, because after all, there have been dismissals at AU since 2014.”

What was the point? 

Anders Kragh Moestrup, acting joint union representative for university graduates in the administration, is also pleased about the decision in the case. 

“The practice of not informing union representatives in connection with dismissals which AU has had up until now is the strictest possible interpretation in relation to the union representative’s right to information. And as far as I know, it’s far more rigid than the practice at the other Danish universities,” says Moestrup. 

When asked how this practice has affected union representative’s ability to assist their members in connection with dismissals, he also refers to the layoffs of 2014. 

“At that time, I had a general idea of how many of my members were going to be dismissed. But I didn’t know which members. And I didn’t know where they were physically, and by extension where I should be myself to be of the greatest possible help.”

Moestrup continues:

“For us union representatives, it’s been impossible to understand the point of the practice that was policy here at AU up until now.”  

AU's practice aimed to protect employee privacy

The matter was sent to arbitration as a consequence of the mass layoffs at AU in 2014. The university’s position was that it was not, as an employer, obligated to disclose the names of the employees selected for dismissal by management to the union representatives. 

In support of this position, the university argued that the disclosure of information of this kind “may be presumed to constitute a problem in relation to both personal data and criminal law...and the university does not believe itself in a position to disclose this type of sensitive information without the prior consent of the employee.” 

The Agency for the Modernisation of Public Administration supported the university’s position that it was not obligated to disclose the names of the affected employees to the union representatives.

Anne Lindholm Behnk, deputy director for AU HR, explains the reasoning behind the university’s former practice: 

“Previously, our position was that it should be up to the individual employee to decide whether to contact their union representative – or another observer –before an dialogue on the intended dismissal. In other words, it’s a choice that should be up to the individual. What’s new is that the employer has to inform the union representative of the name of the co-worker in question simultaneously with or immediately after the co-worker is informed. At the same time, the ruling makes it clear that employees are still to be informed of planned dismissal before the union representative.”

Deputy Director Behnk adds:

“Of course, we will comply with the ruling, and we are awaiting more detailed guidelines from the Agency for the Modernisation of Public Administration.”

What does the University of Copenhagen do?

The University of Copenhagen’s staff policy states that management has a special duty to inform relevant union representatives of planned dismissals. And management is required to encourage employees to draw on their union representative or union for support. 

The ruling also states that the University of Copenhagen has a mail template managers can use when writing to affected employees – which includes union representative contact information. Similarly, the union representatives are encouraged to be present at the department in question on the day on which the employee will be informed of their dismissal. However, as at AU, the University of Copenhagen’s management does not disclose the names of individual employees for reasons of confidentiality. 

The ruling

Both Aarhus University and the University of Copenhagen must now change their practice: the arbitrator, Supreme Court judge Oliver Talevski, ruled that union representatives are to be informed in a way that makes it possible to identify the employee in question – typically by disclosing the name of the employee to the union representative. In this connection, the arbitrator stressed the necessity of knowing the employee’s name in order for the union representatives to perform their duties in the best possible way. 

The arbitrator also ruled that union representatives are to be informed at the same time or immediately after the employee is informed of the planned dismissal. 

Food for thought for HR

“I hope that the ruling with give HR food for thought, so that we don’t see more attempts to limit our ability to be there for our members,” says Seiersen.

What do you mean when you say ‘more attempts to limit’?

“Previously, we were given information in connection with new hires for use in connection with salary negotiations on behalf of our members, such as their CVs and applications. But for the past few years, HR has not been willing to give the union representatives this information, as HR considers the union representatives to be external parties in this connection, not as part of AU. This means that we are less well-prepared when we negotiate. And that’s why I hope that this ruling will also encourage HR to begin seeing the union representatives as partners again, rather than opponents,” she explains. 

Not obstruction, HR says 

Anne Lindholm Benhk, Deputy Director for AU HR. Photo: Anders Trærup 

Deputy Director Benhk says that she finds it regrettable if anyone perceives these decisions as obstruction. And explains them with reference to the rules in the new General Data Protection Regulation.

“The union representatives have a right to be given information about salaries and job descriptions in order to negotiate salaries in connection with hires. But we can’t disclose applications and CVs, because we’re not authorized to do so under the General Data Protection Regulation. But we do encourage applicants to provide their union representative with relevant information.”

And you’re sure that you’re not authorized to do that?

“Not according to AU’s management.”

Translated by Lenore Messick

The issue at stake in the dispute

The issue at stake in the dispute was when a union representative should be informed that the management intends to fire one or more employees – and whether the management has a duty to disclose the names of the affected employees. 

The answer is yes, according to the union representatives at AU, who were backed up by the trade union cartels the Danish Confederation of Professional Associations (AC), the Danish Confederation of Public Employees of 2010 (CO10) and the Confederation of Teachers’ Unions. All agree that this information is necessary to enable union representatives to perform their duties and provide the best possible support to the employee who stands to be fired. 

According to AU, the answer is no. The university has no obligation to disclose the names of the affected employees or to inform union representatives in advance. The Agency for the Modernisation of Public Administration agrees with this position, which AU justifies with reference to issues of personal data security. 

Specifically, the dispute is about the interpretation of Section 3(4) in the agreement on union representatives in the state sector. The agreement states: 

The union representative must be kept informed in connection with planned dismissals of personnel who are not temporary employees, and kept informed to the greatest extent possible about the hiring of personnel and other steps which affect the group of employees in question.

Because the parties were unable to reach an agreement, the case was sent to arbitration, and was ruled on by the Labour Court on Monday. 

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Revised 19.06.2018