Case law Developments in PIL

The Swedish Labour Court on International Sympathy Actions

The Swedish Labour Court held on 1 June 2022 (interim decision AD 2022 No. 33)  that an industrial action taken in Sweden in sympathy with Ukraine was not lawful as it was not proven that a lawful primary action had taken place in Ukraine according to Ukrainian law on international sympathy actions.

Since Russia invaded Ukraine earlier this year, the Swedish Dockworkers Union has taken industrial action to support Ukraine by refusing to load and unload Russian ships. As the trade union had given notice on a renewed industrial action to support Ukraine in May, the trade union pleaded to the Swedish Labour court that it should declare the industrial action lawful in an interim decision. As there is a collective agreement between the employer and the Swedish Dockworkers Union and consequently a strong mutual peace obligation, industrial actions may only be taken in extraordinary situations. One such extraordinary situation is a sympathy action.

Sympathy actions are lawful even though the collective agreement parties are bound by a collective agreement if the primary action is lawful, and the sympathy action is limited in time. This applies also when the sympathy action is taken in solidarity with someone in another country. In such a situation, the Swedish substantive law assessment is dependent on the content of foreign law even if both parties are Swedish. Another exception are political strikes that trade unions may take to demonstrate a political opinion if it is limited to a short period of time.

In the case, the trade union argued that the planned industrial action was a sympathy action to support Ukrainian and Belarusian trade unions in their industrial actions. According to Swedish labour law, the exception for sympathy actions is applicable also in international situations. The employer objected and stated that there were no lawful primary industrial actions in Ukraine or Belarus. As the Swedish substantive law assessment in this regard is dependent on the content of foreign law, the Labour Court pointed out that the parties had not presented proof of the content of foreign law.

Pursuant to the Swedish procedural code, foreign law is both a matter of fact and a matter of law. It is not subject to the principle of iura novit curia, but the court may use the knowledge it has or research the content of foreign law on its own motion. In the decision, the court seems not to have made any effort to research the content. If it would, it is not self-evident how to assess foreign law or even what law that shall be applied as some of the alleged primary industrial actions were taken in Ukrainian territory occupied by Russia.

After having declared that it was not a sympathy action, the Labour Court held that the planned industrial action was not either a lawful political industrial action as the intended time period of three weeks was too long. Hence, it would have been a disproportionate limitation of the employer’s right to conduct a business.

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