By JP Alho, Carola Möller, Emmi Mäkelä
A recent ruling of the Finnish Supreme Court may indicate a significant change to the general practice of employee representation.
According to the ruling, non-union employees are entitled to elect a representative from amongst them even if a shop steward has already been elected.
Employees may generally be represented by a shop steward elected based on the applicable collective bargaining agreement or by an elected representative elected based on the Finnish Employment Contracts Act. Only employees who are members of a relevant trade union are entitled to take part in the election of a shop steward.
A shop steward's main duty is to supervise compliance with the applicable collective bargaining agreement and employment legislation at the workplace. The shop steward also represents employees in consultation and co-operation procedures at the workplace by, for example, making local agreements referred to in many collective bargaining agreements. The trade unions do not as such take part in any co-operation or consultation processes and the shop stewards usually represent the voices of both the employees and the trade union.
An elected representative represents employees in matters concerning the terms and conditions of employment and the workplace but is not entitled to represent the employees in matters concerning the collective bargaining agreement.
The shop steward's position has been considered primary compared to an elected representative; if a shop steward has been elected on the basis of the applicable collective bargaining agreement, an elected representative may not be elected separately.
This limitation, as such, does not cause harm to non-union employees in general. The shop steward represents all employees belonging to the scope of application of the applicable collective bargaining agreement (including the non-members of the trade union being a party to the applicable collective bargaining agreement). This practice has, however, been seen problematic in the sense that employees who are not members of the relevant trade union are not entitled to take part in the election of the shop steward.
The Finnish Constitution guarantees the freedom of association, according to which individuals have the right to join or not to join an association. Similarly, the Finnish Employment Contracts Act contains a provision on the freedom of association. According to the said provision, any prevention or restriction of the freedom of association is prohibited. Additionally, it has been established that resorting to the freedom of association may not cause illicit harm to the person resorting to it. Therefore, an employee may not, for example, be treated less favourably or be dismissed due to his/her participation/non-participation in a trade union.
In its latest ruling the Finnish Supreme Court argued that the current practice relating to the priority of a shop steward means that non-union employees are in the risk of being treated less favourably due to their choice of not joining a trade union.
Non-union employees are not entitled to elect a representative from among themselves but they are represented by a shop steward elected by the unionised employees. According to the Supreme Court, this may cause harm to the employees particularly in a situation where the interests of the non-union employees and unionised employees are in conflict (e.g. in a redundancy situation).
The Supreme Court ruled that in order to guarantee the freedom of association, the practice should be changed to entitle non-union employees to elect a representative from among themselves even if a shop steward has been elected on the basis of that collective bargaining agreement.
Previously, non-union employees have not been entitled to elect a representative if a shop steward has already been elected. Prior to the this ruling, the non-union employees' right to elect an own representative from among themselves has been limited to situations where the non-union employees form majority and only for the purpose of co-operation consultations which means that such a representative has more limited rights compared to shop stewards or elected representatives.