LAWIN

Collective Labor Agreements

Collective Labor Agreements

Collective labor Agreements (Law Materials)

In this section, find out some resources in relation to Collective labor Agreements legal materials (as legal instruments) and resources in relation to Contracts (Including Collective labor Agreements and Deeds) legal materials (as legal instruments).

Other Legal Instruments

Other legal instruments include:

  • Affidavits
  • By-laws
  • Charters and articles of incorporation
  • Commercial arbitration agreements
  • Contracts (including Collective labor agreements and Deeds)
  • Cooperative agreements
  • Legal memorandums
  • Legal petitions (including Remonstrances)
  • Patents
  • Wills
  • Writs

Cross-Border Collective labor Agreements

Classification of Problems: The Extraterritorial Application of National Collective Agreements and Transnational Collective Agreements

The different regulatory models mentioned above also have an impact on the existence, validity and scope of collective agreements,87 leading to legal discrepancies between countries. The sharpest differences are to be found in their scope of application, as a collective agreement can be binding exclusively on both parties or on third parties or have an erga omnes effect. This normally depends on who is allowed to engage in collective bargaining and the conditions under which they are allowed to do so. In some countries, the party or parties bound by the agreement depends on how representative the relevant trade union is, whether it is limited to its members or not and whether the agreement is signed by a trade union association or an employers’ association. A further relevant factor is the role granted by the legal system in question to the principle of non-discrimination between employees, which may oblige employers to apply a collective agreement to their entire workforce.

Moreover, a collective agreement can be automatically incorporated into an individual employment contract as long as it has a normative effect, it can specifically require a compulsory and direct effect or it can be considered a gentleman’s agreement as in the UK, where such agreements are not binding unless explicitly declared part of an employment contract. As a consequence of all these differences, there are different types of collective agreement, but no significant problems of characterisation are posed insofar as these agreements continue to be the products of negotiations between social partners, who are granted the capacity to conclude them as they are considered equals in form and substance and thus enjoy equal bargaining power.

The terms in which collective bargaining is carried out depend on the legal system of reference, which generally constrains the existence, validity and scope of a collective agreement to the social partners who negotiate it and on condition that certain specific formal requirements, such as publication in an official journal, are met. In view of these constraints, the transnational nature of collective agreements has been approached from a unilateralist standpoint such as those in France89 and Germany, where in the absence of specific conflict rules national courts decide on the scope of application on grounds of the principle of territoriality, among other reasons, because collective agreements usually start with a clause along the following lines: it applies to all establishments in the country where the collective agreement has been approved, irrespective of their appurtenance to national or international companies and of the law governing the employment contracts of the workers providing services for these establishments.

This unilateral approach works smoothly when the employment contracts point to a single country. However, international contacts lead to considerations relating to the potential extraterritorial application of collective agreements, in particular in the light of the situation of workers posted to other countries. In this regard, by interpreting the personal scope of application of collective agreements, the German courts have resorted to the notion of Ausstrahlung—already used in relation to social security law—with a view to justifying extraterritoriality. The same interpretation has been used in France91: if the employees work abroad, the application of the relevant collective agreement rests on the maintenance of sufficient contacts with the country of origin and with the company located there.92 As a general rule, contacts are not held to be sufficient when employees spend all their time abroad, but exceptions have been made for cases in which the employment contract stipulated the right to return.

The debate on the establishment of a German international registry revealed this discussion to be present in the maritime and fishing sectors as well. The relevant law emphasised that seafarers who were not resident in Germany did not necessarily have to submit to the law of the flag, and the question then arose as to whether German unions could represent non-resident seafarers and conclude collective agreements on their behalf and whether foreign unions could conclude collective agreements with German shipowners subject to German law to be applied to vessels flying the German flag. The German Constitutional Court gave an affirmative response, although with the clarification that collective agreements in Germany could be applied to seafarers’ employment contracts if included in the law that governed the contracts.

This opens the door to the application of foreign collective agreements in another country, as it is not a matter of territoriality but of the law governing individual employment relationships; in other words, it applies if the law acknowledges the relevant collective agreements. Directive 96/71/EC on the temporary posting of workers supports this conclusion as it primarily embraces the application of the lex laboris, usually the law of employees’ country of origin, including its collective agreements, except for cases in which the law of the destination country improves specific workers’ rights, including cases in which these rights were granted by collective agreements. In short, the application of collective agreements to specific employment contracts depends on the law governing the latter and whether it recognises the agreement as such. Nevertheless, it should be noted that the scope of a collective agreement is equally relevant as it may exclude the contract in question, as it will apply on its own terms. At any event, it is important to bear in mind that, as a source of rights and obligations, the provisions of collective agreements may be applicable as overriding mandatory rules.

The problem identified above—collective agreements’ scope of application—concerns the nature of an agreement as a potential source of rights and obligations. As a collective agreement, it is likely to give rise to other disputes that are not related to it as a governance mechanism but whose subject matter is the collective agreement itself. According to Gérard Lyon-Caen, a collective agreement is both a source of rights and obligations as well as an instrument providing standards for employment relationships while at the same time being subject to rules to decide on its existence, validity and scope. The latter type of litigation requires establishing the law applicable to collective agreements as such.

In this regard, a bilateral instead of a unilateral approach is preferred, as the latter does not pay attention to truly transnational cases, i.e., those involving a company or group of companies operating in more than one state. A new category of collective agreement may therefore be established, transnational agreements, whose scope should not be made to depend on the rules applicable to national agreements as they are supposed to be applied in different countries. Against this background, what appears to be the first bilateral conflict rule on the matter has come into existence, Article 92 of the 2014 Panamanian Private International Law Code,95 whose wording reads as follows: ‘International collective agreements shall be governed by any clauses agreed between trade unions and the employer or, failing that, by the law of the place of performance’.

Agreements of this kind are not unknown on this side of the Atlantic. Transnational collective agreements are currently part of European Social Policy and the subject of European social dialogue, as well as of numerous studies aimed at providing the ad hoc answer required by the topic in question, although rather unsuccessfully thus far. However, the prospects are not entirely gloomy, given that collective bargaining has flourished under the umbrella of Article 155 of the TFEU.

European social dialogue has been fruitful and produced Council Directive 2009/13/EC of 16 February 2009 implementing the Agreement concluded by the European Community Shipowners’ Association (ECSA) and the European Transport Workers’ Federation (ETF) with respect to MLC, 2006. So far there is no directive along these lines in the fishing sector, but the European Union has already requested and granted authorisation for member states to ratify WFC, 2007.98 In line with MLC, 2006, trade unions and business associations have reached an agreement at European level on its application that should enable the European Union to issue a directive with a view to harmonising the provisions laid down in WFC, 2007, within the European Area of Justice.99 This commitment to the Work in Fishing Convention is highly necessary, and we can only hope that it will soon come into force.

Transnational Collective Agreements and Private International Law

Introduction

The inadequacies of the division in national labour markets are obvious in cases involving seafarers and fishermen. It is easy to find collective agreements between an employer and a union where those represented are not union members. Furthermore, collective bargaining may take place hundreds or even thousands of nautical miles away from the employer’s company headquarters and the crew’s country of origin, and their employment contracts may also be subject to different laws. This background is in fact at the heart of the ITF-initiated campaign against flags of convenience, which is based on coordinated trade union action to avoid inter-union competition for a larger market share.

This coordination has prompted ITF trade unions to pull in the same direction, and although the process has been very uneven, the result is that shipowners sailing under what the ITF considers being a flag of convenience have been successfully pushed to sign one of the standard collective agreements drawn up by the ITF itself. Shipowners agreeing to do this are given a blue certificate, which means that ITF inspectors will refrain from impeding the respective vessel from sailing; otherwise, hurdles might well crop up in the form of boycotts or other industrial actions if the minimum living and working conditions on board as guaranteed by the collective agreement are not respected.

The crew itself can bring about the signing of a collective agreement by resorting to strike action if necessary, or an agreement can be the result of action by a third party such as dockers, who might refuse to load and unload a vessel as a pressure tactic. All this may happen in a port other than the one where the ship is based or in a country other than the one where the vessel is registered. Hence, the signing of a collective agreement under these conditions may lead to various types of litigation, the most relevant being in cases where workers seek to bring about its implementation, for example if owners do not fulfil their obligations in terms of the wages established in the agreement. In principle, these are considered individual claims and are referred to in other sections of this book, as the applicability of a collective agreement depends on the law governing individual employment contracts. Nevertheless, and given the transnational nature of this kind of collective agreement, in addition to establishing its applicability to the employment relationship in question—decided in accordance with the relevant lex laboris as said before—it may be necessary to examine the collective agreement’s existence, validity and scope and, hence, what the applicable law there is.

The Canadian jurisdiction provides a useful example of this type of litigation: a Filipino crew was employed on a ship flying a Liberian flag after a collective agreement had been signed between an Australian trade union and the shipowner in Australia. The crew had been recruited by the shipowner’s agent in the Philippines, meaning that the individual employment contracts were subject to Philippine law, and the crew was paid lower wages than those fixed by the collective agreement in question, which had been drawn up according to ITF standards. During a port stop in Montreal the crew decided to request the arrest of the vessel and claim the payments due in accordance with the collective agreement. In answer to the question as to whether shipowner and crew were bound by the collective agreement signed in Australia, the court concluded that the applicable law to decide on the existence, validity and scope of the agreement was the law of the flag, in this case Liberian law, although in the end the scope of the agreement was examined in the light of Canadian law, as the foreign law was not proved at the proceedings. The decision upheld the seafarers’ petition on the ground that the ITF is a representative trade union and the collective agreement was therefore also applicable to seafarers recruited after its conclusion.

The existence, validity and scope of a collective agreement may also be directly challenged by the owner seeking a declaration of invalidity, for example, on the ground that the agreement was concluded under duress.101 Another example of this kind of litigation is a case involving the Norwegian shipowner of a vessel owned by a Maltese company, flying a Maltese flag and crewed by Norwegian officers and Spanish seafarers. A Spanish union had concluded a standard ITF collective agreement—to which the trade union was affiliated—on behalf of the Spanish seafarers. The vessel operated between Swedish ports, an argument put forward by a Swedish union in order to request the ITF to include a clause that committed the shipowner to recruit Swedish seafarers in the agreement. The ITF agreed to denounce the collective agreement signed on its behalf by the Spanish trade union, but the union, which disagreed with the clause, instead renewed it on the ITF’s behalf. The vessel was boycotted on its arrival in Sweden, sparking off a dispute between the Norwegian company and the ITF in London, the key point of which was the scope of the collective agreement signed by the Spanish trade union on behalf of the ITF. The British Court of Appeal determined the law applicable to the collective agreement by taking into account the closest link, which led them to Spanish law.

The problems of international jurisdiction and conflict of laws posed by disputes dealing with the existence, validity and scope of a collective agreement are discussed below. They are covered by EU Regulations on private international law and so need to be examined in the light of the provisions of the Brussels I bis Regulation—the Lugano Convention is thus applicable here—and the Rome I Regulation: despite differences between legal systems, there is a certain degree of consensus as to the fact that collective bargaining gives rise to a contract. English case law expressly stated this in two cases involving the ITF,107 while CJEU case law supports this conclusion by a broad interpretation of the term ‘contractual matters’, including situations in which one identifiable party voluntarily assumes obligations towards another identifiable party.108

International Jurisdiction

Disputes arising from collective agreements per se are also covered by the Brussels–Lugano system,109 as they are characterised as civil and commercial matters and are not among the exclusions mentioned in Article 1 of the Brussels I bis Regulation and the Lugano Convention. As is already known, the application of these legal instruments depends on the defendant’s domicile being located in a member state,110 but they are also applicable in the event that there is a choice of a member state’s forum.

Following the structure of the Brussels–Lugano system, and given that this is not an exclusive matter, the first thing that needs to be checked is whether there has been a tacit submission or a choice of forum.112 In the absence of these, plaintiffs can choose to file their claims either before the courts of the defendant’s domicile or the courts determined according to the principle of proximity to the matter in dispute, in this case those dealing with contractual matters.113 The lodging of a claim against a co-defendant before the courts where the defendant is domiciled is also foreseen,114 as this head of jurisdiction has already been resorted to bring the trade union in charge of carrying out the boycott before the courts of the ITF’s headquarters, with the aim of examining whether or not the collective agreement signed by the shipowner under the pressure of ITF strategy is valid, as occurred in the Dimskal case mentioned above.

Signing a collective agreement necessarily involves the parties’ consent, and so the special head of jurisdiction on contractual matters may come into operation to determine whether the agreement is valid or not. The paradox here is that if the collective agreement is declared void, there would have been no consent. Nevertheless, the CJEU has already clarified that non-existence and invalidity issues also fall within the scope of Article 5(1) of the Brussels I Regulation and Lugano Convention, 7(1) of the Brussels I bis Regulation, since the real issue at stake is precisely the existence and validity of a contractual obligation.

Further problems emerge when it comes to specifying the competent court, as the place where the obligation that is the basis of the lawsuit was, or is to be, fulfilled has to be determined. The head of jurisdiction—as stated in the provision mentioned above—contains two presumptions, but these only apply to the international sale of goods and provision of services. In all other cases, the seized court has to proceed to identifying the contractual obligation that gave rise to the lawsuit. When the existence and validity of a contract is in question, this obligation is the characteristic performance of the contract.

The point is that a collective agreement gives rise to complex obligations, none of them simply involving one party’s obligation to pay the other, and serious problems therefore arise regarding the determining of the characteristic performance of the contract, i.e., establishing the obligation that is at the root of the lawsuit.117 In view of the contents of collective agreements, it is advisable to identify this connection by locating the agreement’s centre of gravity, which suggests an approach based on the principle of proximity, i.e., seeking the closest link. Given the transnational nature of these agreements as well as their contents—focusing on improving workers’ living and working conditions—that could be the place where the employer has to fulfil these obligations, i.e., the habitual workplace.

If the defendant is not domiciled in a member state, the international jurisdiction must be determined according to national law. In the Spanish legal system, Article 25 of LOPJ states that in social matters, the Spanish courts have jurisdiction to deal with the legality of collective agreements entered into in Spain and with claims arising from collective labour disputes lodged in Spain. This provision seems to confirm the unilateralist approach prevailing in this area. In fact, Spanish lawmakers do not even address cases where disputes arise in respect of collective agreements that are potentially subject to a foreign law, for example if a collective bargaining dispute based on a transnational collective agreement is initiated against an employer domiciled in Spain. As a matter of fact, there is no case law here since no umbrella organisations are based in Spain—unlike England, which hosts the ITF headquarters in London. However, the assimilation of a collective agreement to a contract opens the door to Spanish jurisdiction for cases that not fall within the strict terms of Article 25(2). In these cases, Article 25(1) of LOPJ, which deals with individual employment contracts, may be of use and may provide a head of jurisdiction where stakeholders can discuss transnational collective agreements based, for example, on the fact that the terms of a foreign collective agreement have to be met in Spain.

The Law Governing Collective Agreements: Choice of Law Agreements

The relevant instrument in the conflict of laws field is the Rome I Regulation. Party autonomy is also admitted as a conflict rule, and Article 3 supports both the express and the implied choice of law.118 Collective agreements may contain a choice of law clause, but this is most likely to appear tacitly inasmuch as collective agreements usually contain a reference to the relevant national legislation such as the Spanish Workers’ Statute.119 Other important factors implying a choice of law are the signatories, i.e. the intervention of unions and business associations based in a given territory and, if applicable, the place where the collective agreement was published, since in countries where these agreements have normative force, publication in the relevant official gazette and other formalities are indeed required. In this regard, an implied choice could be inferred from the ITF’s conclusion of a collective agreement to be applicable to all ships flying the flag of the negotiating state.120 Along the same lines, the fact that owner and crew come from the same country has been considered a tacit choice of law.

However, it is debatable whether party autonomy is indeed admissible in this matter, as it can be contradictory to the normative effects of some collective agreements: collective bargaining is designed to achieve social peace in a given territory, which is why the relevant market needs to be identified, not to give the parties the opportunity to choose the governing law and thereby avoid the social and economic order of reference.122 On the basis of this rationale, distinguishing between the normative and obligatory parts of a collective agreement has been proposed to limit the possibility of choosing the applicable law to the obligatory part, as it is only binding on the contracting parties.

Other approaches have been suggested for the normative part of the agreement, such as considering these provisions overriding mandatory rules,124 or as a problem of the legal reception of a foreign rule, once again requiring the collective agreement’s territorial scope of application to be determined such that only an agreement signed by a party with representation in the territory where it will be effective would be enforceable. Against this background, union capacity to conclude collective agreements with effects in countries other than the one where they are based has been challenged.

The proposal to split agreements into their obligatory and the normative parts for conflict of laws purposes has been contested on the ground that this differentiation is very difficult and only helps to denature collective agreements. In fact, as collective agreements are shaped in legal systems that grant them normative effect, the obligatory part only seeks to ensure the efficacy and effectiveness of the normative part, for which reason it would be meaningless to subject the two parts to different laws. Furthermore, normative collective agreements do not merit special treatment with respect to other legal sources, the application of which depends on conflict rules as well, i.e., the mandatory rules of a given legal system can be avoided in accordance with the country’s private international law system. In the same vein, the fact that a collective agreement has normative effects cannot be enough to invalidate choice of law as a connecting point, given that there is no consistent reason to consider the provisions dealing with collective bargaining as overriding mandatory rules.126 The mere possibility that private stakeholders might conclude a collective agreement suggests that choice of law clauses must be allowed in this area.

A third approach makes the point that distinguishing between the obligatory and normative parts of a collective agreement is indeed possible and it is hence equally feasible to determine the laws applicable to each of them separately, provided that the parts are severable, namely, that their differentiation does not break the internal harmony of the collective agreement.127 However, with the exception of this point, this stance concludes that the Rome I Regulation, including its conflict rule on party autonomy, should be applied to the normative part of collective agreements as well, on the grounds of the reasons mentioned above. All in all, there is no consistent reason for preventing choice of law clauses for collective agreements; indeed, Article 92 of the Panamanian private international law code has already enshrined this connecting point.

In any event, the discussion is of little practical consequence as the parties tend to apply for the closest law.128 The features of collective bargaining, linked to a labour market that is generally territorially bounded, for the most part leave no choice as to the law applicable to the collective agreement. When parties to the collective agreement decide to submit it to a foreign legal system in spite of this, the limitation to party autonomy imposed by Article 3(3) of the Rome I Regulation comes into operation, so that all mandatory provisions of collective labour law in force in the state to which all relevant elements of the case refer are applicable. The same must be held for Article 3(4) of the Rome I Regulation, taking into account EU law on these matters.
The Law Applicable to Collective Agreements in the Absence of Choice of Law

With respect to the Rome Convention, the Rome I Regulation modified the conflict rule through which the law applicable by default of choice of law is determined. But in essence, the law of the habitual residence of the party who has to perform the characteristic obligation remains as the general rule. The difficulties in identifying the characteristic performance in a collective agreement have already been highlighted;130 thus, the law applicable cannot be determined in accordance with paragraphs 1 or 2 of Article 4 but by resorting to the law of the country that the collective agreement has the closest connection with.

Commentators have identified a number of factors to be considered when establishing the closest law to the case in question, such as the territorial scope of the collective agreement, the state in which most employment relationships covered by the agreement are performed,131 nationality and habitual residence of the parties to the collective agreement, the language of the agreement and the contents of the provisions,133 the law applicable to most individual employment contracts covered by the agreement134 and the law of the place where the obligations set out in the agreement will be carried out.

For our purposes, the common domicile of shipowner and union is relevant,136 as well as the place of origin of the crew benefited by the collective agreement137 and, in particular, the location of the workplace where it is to be applied.138 The Nervion case139 is a good example of how to determine the applicable law in these cases even though at that point neither the Rome I Regulation nor the Rome Convention was in force. The vessel, which was registered in Panama, manned by a Polish crew and owned by a company registered in Panama, was boycotted by a Swedish union and the ITF in a successful bid to improve the crew’s living and working conditions. The employer did not comply with the resulting agreement and was sued by the crew in Sweden. The defendant pleaded the invalidity of the collective agreement, and the court applied the law of Panama to decide on the issue, emphasising the fact that it was also the law governing the individual employment contracts. In a similar vein, a German decision also pointed to the flag state as the centre of gravity of the collective agreement in question.

Public Order and Overriding Mandatory Rules

The application of the law governing the collective agreement may be corrected by both overriding mandatory rules, as set out in Article 9 of the Rome I Regulation and the public order clause enshrined in Article 16 thereof. In the Nervion case, for example, the Swedish court applied Panamanian law exclusively, considering the collective agreement in question invalid as the industrial action behind it was illegal. This was the consequence of the Swedish court also submitting the latter issue to Panamanian law, for which reason the agreement was set aside in the end. Paradoxically, the industrial action had been carried out in Sweden, and the boycott would have been considered legal had Swedish law been applied. The decision was heavily criticised for this reason, and the outcome of the resulting dissatisfaction was a new provision in the law governing collective labour relations in Sweden, indicating that the invalidity of the collective agreement cannot be pleaded when the industrial action is undertaken legally in Sweden. This provision is deemed an overriding mandatory rule in the light of Article 9.141

Scope of the Law Governing a Collective Agreement

As the Rome I Regulation is applicable, the scope of the law governing collective agreements is to be found in Article 12, which establishes that it governs their conclusion, content, modification and termination. The lex contractus consequently establishes the conditions under which a collective agreement is to be concluded, including non-existence and nullity; its contents, including the legal obligations attached to it, i.e. those inherent to the agreement even without the intervention of the parties’ consent, such as peace obligations and respect for the terms of the agreement; its interpretation; fulfilment of the obligations agreed on; the consequences of infringement; and the termination of the agreement. The same law governs the personal scope of the agreement, which may be binding exclusively on the contracting parties and their affiliates, and also on third parties.

In many jurisdictions, especially in countries in mainland Europe, collective agreements are legally characterised by their normative effect, which has raised many doubts with respect to determining conflict of laws issues, as seen previously.142 At this point, it must be emphasised that these normative effects impose certain conditions on the conclusion of collective agreements, in particular that the signatories have to be deemed to be representative by the legal system of reference and that they must follow a specific procedure, including, where appropriate, the publication of the collective agreement in an official journal. Thus, given the connection required between the scope of the collective agreement and the capacity to conclude it, as well as the publication requirement, the question arises whether these issues should be subject to the lex contractus as well.

The lex contractus does specify who is entitled to enter into a collective agreement—whether individual workers, trade unions or chambers of commerce—since this is not an issue of legal capacity or legal personality but rather an essential element of collective bargaining, which cannot be submitted to any law other than the one applicable to the agreement resulting from the bargaining process. Other opinions point to the law governing the union,144 i.e., the one dealing with the existence and features of the trade union in question. However, this law has no bearing on the problem under discussion—the bargaining power to conclude a collective agreement—since this issue is linked to the very existence, validity and scope of the agreement.

The same cannot be applied, though, to special requirements of form such as publication of the collective agreement in specific journals. Form requirements are submitted to the conflict rule provided by Article 11 of the Rome I Regulation, not establishing any special rule on collective agreements for which reason either the lex contractus or the lex loci celebrationis decides on this issue.

Collective Agreements and Plurality of Leges Laboris

Collective agreement themselves may determine their personal, territorial and temporal scope of application, but their application to employment relationships depend on the law governing the latter. Thus, if a crew demands that a collective agreement be applied to their individual employment contracts, the first step is to find out about each lex laboris, as collective agreements are part of this. In fact, the problem is that each employment contract may be subject to a different law, and the collective agreement aimed at covering all seafarers or fishermen on board a ship or a fleet may itself be subject to a different law from the law or laws governing the employment contracts.

In view of the fact that applying a collective agreement to all individuals working on board depends on the relevant lex laboris, it cannot be taken for granted that the agreement is binding on all seafarers. This is the reason why a number of doctrinal opinions seek to avoid this dissociation by submitting the collective agreement to the law of the negotiating union’s headquarters in the absence of choice of law and on the understanding that employment contracts are subject to the same law. It has also been suggested that as many collective agreements should be concluded as lex laboris might be involved. This opinion entails a collective agreement’s legal reception by each law governing an employment relationship, which runs the risk of ‘nationalizing’ the collective agreement, i.e., submitting it to the same requirements and conditions that would apply if it had been concluded in the country. The relevant law should therefore not be applied too strictly, to contribute to the legal reception of the collective agreement in question. This approach has the advantage of the ITF’s proved representativeness,148 which means that it is accepted as a party with authorisation to conclude collective agreements. However, this does not solve the problem of the fragmenting of the collective agreement, i.e., its more than likely non-application to all employment contracts on board a vessel.

The connections set out in Article 8 of the Rome I Regulation enable us to reduce the number of cases of dissociation between the laws governing employment contracts on board and the law governing the collective agreements.149 Employment contracts may be subject to different laws, but these can never deprive employees of the protection afforded to them by provisions that cannot be derogated from by agreement under the applicable law in the absence of choice of law, including the provisions contained in collective agreements. As seen above, this is usually the law of the habitual workplace, which leads us to the law of the flag in the maritime sector. As to collective agreements and in the absence of choice of law, the conflict rule resorts to the closest law, which may also point to the jurisdiction of the flag. In cases where there is a law that is closer to the employment relationship than the law of the place of the ship’s registration, this law comes into play through the escape clause set out in Article 8(4) and Article 4(4) of the Rome I Regulation with regard to collective agreements as this provision submits them to the law of the country with which they are most closely connected.

Such a coincidence is desirable and can be achieved, but not always. Divergences between the two laws can be overcome by resorting to the principle of equal treatment of workers who are subject to different employment laws but employed in the same workplace and by the same company.150 The standard collective agreements drawn up by the ITF appear to be moving in this direction, as they seek to modify individual employment contracts by imposing obligations on employers with the aim of achieving equal living and working conditions for all those on board.151 In these cases, the workers’ implicit consent to the agreement is taken for granted, assuming that the working and living conditions guaranteed them by the collective agreement are more favourable than the ones already applicable.152 The case law to date is contradictory, and these agreements have not always been enforced,153 but a change of interpretation needs to be advocated here, backed by the pro laboratoris principle, a general principle in both the shipping and fishing sectors, as can be inferred from Article 19(8) ILO Constitution, the MLC, 2006 Preamble, and Article 6(2) of WFC, 2007.

Source: Piñeiro L.C. (2015) International Maritime Labour Law. Hamburg Studies on Maritime Affairs (International Max Planck Research School for Maritime Affairs at the University of Hamburg), vol 34. Springer, Berlin, Heidelberg

Contracts (including Collective Labor Agreements and Deeds) may be important in legal research as legal instruments.

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