In a recent case from the Swedish Supreme Court (case no T 3269-13), a former company owner sued the Swedish Building Workers' Association (Sw: Svenska Byggnadsarbetareförbundet) for damages on the basis that the union had taken industrial action against his construction company in breach of the Convention. The trade union had imposed a blockade against the company after the owner had refused to enter into a local collective bargaining agreement. The company later went into bankruptcy, mainly due to the blockade. The question to be answered by the Supreme Court, in this interlocutory judgment, was whether trade unions may be held liable for damage caused by (their) actions in breach of the Convention.

The Swedish Supreme Court initially noted that the right to take industrial action is protected by the Swedish constitution. However, this protection does not include actions that are in breach of the Convention. Nevertheless, since the Convention only applies to the state and state authorities, a trade union cannot be held liable for damage caused directly based on the Convention. The court argued that since trade unions are independent from the state, and since they are not granted any executive or legislative power, a trade union may not be compared to a state authority in such a way that the Convention may be applied directly to the trade union.

However, although the Convention is not directly applicable to trade unions, a trade union may on the basis of Swedish tort law be held liable for damage caused by (their) action in breach of the Convention. Under Swedish tort law, liability for economic loss may be imposed, provided that the tortious action is deemed to be manifestly unreasonable. This may be the case if someone has acted in breach of the Convention, but such an action does not automatically qualify as being manifestly unreasonable. Whether this is the case must be decided in each individual situation. There must also be a proportionate relationship between the action and the damage. Thus, the question of whether a trade union is liable for damage caused by its actions in breach of the Convention must be answered on a case by case basis.

Comments from a Finnish perspective:

We are not aware of similar cases in Finland. However, as in Sweden, it is not excluded that trade unions may be liable to pay damages under Finnish tort law. It should also be noted that the collective bargaining agreement system is different in Finland. Agreements with so called normal binding effect apply only to the parties to the agreement either directly, or through membership in an employers' association, whereas agreements which are universally binding must be complied with by all employers active in the particular field the agreement covers, regardless of whether they are members of the association that is party to the agreement.