Hot off the press: the latest judgment in the series on solidarity actions in the port of Rotterdam

Seafarers hardly ever strike. They are all too aware that ‘the show must go on’. A ship that is off-hire costs an awful lot of money. It is sometimes even illegal for seafarers to refuse working. This makes it more difficult for them to stand up for themselves, for example if working conditions leave much to be desired.

It is easier for dockworkers to take a stance from shore, for example by not unloading a ship. This can have significant consequences: cargo arriving too late at its destination and perishable goods going to waste. Dockworkers carry out this kind of action with some regularity, not for themselves, but to help their seafaring colleagues in the transport industry. Solidarity boycotts are held not just in the Port of Rotterdam, but in ports all over the world.

From a legal point of view, solidarity actions are interesting because they raise numerous questions. Striking is a fundamental right, but can you use it on behalf of someone else? And if so, to what extent?

Dutch courts have now considered the legality of a number of solidarity actions in the Port of Rotterdam. This blog contains an overview of the rulings, and includes a recent ruling by the Rotterdam District Court, dating from 26 July 2024.

First the theory: the right to strike in the Netherlands

Derived from the European Social Charter

National Dutch law does not contain a right to strike. Nevertheless, it is a fundamental right applicable in the Netherlands. This follows from Article 6(4) of the European Social Charter, which stipulates that workers may take collective action in cases of conflicts of interest, including the act of striking. Collective action may be restricted or prohibited if prescribed by law and necessary in a democratic society to protect the rights and freedoms of others or to protect the public interest, national security, public health or morals. This fundamental Charter right can be directly invoked in the Netherlands.

Supreme Court: broad interpretation

According to the Dutch Supreme Court, the scope of the Charter’s right to strike is a broad one. Any action - regardless of its nature - that can reasonably contribute to the effective exercise of the right to collective bargaining is in principle lawful. In principle, no distinction is made between organised actions and wildcat strikes, as long as the aim of the action is to improve working conditions. However, the right to strike can be restricted or prohibited. The Supreme Court applies a balancing of interests in which the various circumstances are taken into account. An employer or a third party claiming a restriction or a prohibition of industrial action must make it plausible that the restriction or prohibition is justified. This is only the case if such a limitation of the right to strike is urgently needed from a societal point of view.

Solidarity actions: how are they judged?

The above theoretical framework is applied by judges when ruling on solidarity actions in the port. How this is framework is applied and what the outcomes are follows from the rulings discussed here below (in chronological order).

2014: Enerco

The case

The unions FNV and HZC had a dispute with the employer, the transhipment company Rietlanden. At Rietlanden, the ship Evgenia, containing coal for Enerco, was to be unloaded. The ship was not fully unloaded due to an unannounced strike by dockworkers of Rietlanden. The unions had subsequently declared the ship ‘contaminated’, calling on dockworkers at other transhipment companies not to unload the ship in solidarity with and in support of the strike at Rietlanden. Enerco suffered damages as a result of not having its coal unloaded and took the unions to court on the grounds that the union actions were unlawful.

The judgment

The Dutch Supreme Court ruled that a declaration of contamination falls under the protection of the right to strike if it can reasonably contribute to the effective exercise of the right to collective bargaining. This is the case, for example, if the declaration of contamination and the ensuing solidarity actions could induce Enerco to exert pressure on Rietlanden. Moreover, the Supreme Court saw no reason to limit the right to strike. The fact that Enerco as a third party claimed to suffer significant and increasing damage over time was not sufficient. The declaration of contamination was therefore lawful.

2017: Vitakosmos

The case

Kosmos was the owner of the ship Vitakosmos, which berthed in the Port of Rotterdam at the terminal EBS. There, an inspector from the International Transport Workers' Federation (ITF)[1] visited the ship and talked to the crew. He found that the wages of the ship's crew were below minimum international standards and that no collective agreement applied. Thereupon, after consulting with the union FNV, he shared his findings with the ship's managers and requested them to authorise the ship's captain to sign an ITF standard collective agreement.

The EBS Terminal was responsible for unloading the ship's grain. FNV employees visited EBS staff and informed them about what FNV had heard from the ITF inspector, after which the unloading operations were stopped by EBS dockworkers. EBS did unload part of the cargo three days later, after which the ship sailed to another terminal so that the rest of the cargo would be unloaded there. Kosmos requested the Rotterdam District Court in summary proceedings to order ITF London, FNV and EBS to cease the boycott of the ship at EBS.

The judgment

The Court ruled that sharing information obtained from the ITF inspector about the situation on board and attending meetings of (the FNV members of) the dockworkers of EBS did not qualify as actively calling for or supporting actions, such as a boycott, against the ship. Rather, the boycott by the EBS dockworkers can be characterised as a wild cat strike / solidarity action. While it is established that FNV was involved in the boycott of the ship to some extent, its role was informational in nature and that role cannot be denied to a trade union. The Court further took into account that at the time of the hearing, the ship was already being unloaded elsewhere. The claims of shipowner Kosmos were dismissed.

The sequel

The boycott was then continued by dockworkers at the terminal RBT. The shipowner tried to put an end to that boycott in new summary proceedings against the ITF inspectorate, FNV and RBT. The judge did not rule that the action must be terminated. According to the judge, it is unlawful to provoke a boycott using distorted and grossly exaggerated information. To the extent that the ITF inspector provoked a boycott based on accurate information, this is not unlawful. The ITF inspector was directed to share only accurate information about the ship.[2]

2022: Non Seafarers’ Work Clause

The case

A very different issue relevant in the maritime context, and that should be mentioned in this blog, is the case about the so-called ‘Non Seafarers’ Work Clause’. That case was not about a collective action, but about compliance with a clause in a collective bargaining agreement. Many international collective bargaining agreements for seafarers stipulate that on container ships, local dockworkers should do the lashing and unlashing in the port. This involves securing and loosening containers. If insufficient dockworkers are available, then the crew is allowed to perform these activities under certain conditions. A shipowner did not comply with this clause and the involved unions demanded compliance.

The judgment

These were proceedings on its merits before the Rotterdam District Court's Plenary Chamber. The judgment is lengthy; relevant for this blog is that the Court considered the following:[3]

As considered [...] social dialogue in this sector has a certain asymmetry, because ITF includes not only seafarers' unions but also unions of (only or also) dockworkers. [...] ITF c.s. [deploy] their combined role (of dockworkers‘ representatives and seafarers’ advocates) to negotiate better working conditions for seafarers by threatening, where necessary, to deny ships the cooperation of dockworkers. This expresses a certain solidarity between dockworkers and seafarers. It is a fact of common knowledge that the working conditions of seafarers - especially those from low-wage countries - have traditionally left much to be desired, and to that extent the aforementioned solidarity is understandable and not undesirable.

The solidarity between seafarers and dockworkers is thus explicitly recognised in this ruling. That solidarity, according to the court, is understandable and not undesirable. This consideration underlines the special situation in ports and the solidarity between transport workers in the maritime sector. It is against this background that solidarity actions by dockworkers take place.

2024: Liberty

The case

The ship owned by Liberty entered the Port of Rotterdam and wanted to unload soy at the ADM terminal. Not only was this cargo to be unloaded at that terminal, but (a sister company of) ADM had also chartered the ship. That lease agreement (a charter party) stipulated that the crew on board the ship had to be covered by an ITF agreement or an agreement acceptable to the ITF with a bona fide trade union.

An ITF inspector visited the ship and discovered irregularities and violations of regulations. There was insufficient free fresh drinking water and insufficient fresh fruit and vegetables for the crew. The crew also did not have free internet access and no collective agreement applied to the crew. The ITF inspector informed the shipowner, the terminals and FNV, and suggested to the shipowner to conclude an ITF collective agreement. No response followed from the shipowner.

A week later, the ITF inspector visited the ship again, together with FNV members who are dockworkers at the ADM and EBS terminals. Although some of the violations had been resolved, a collective agreement was still not in place. The following night, ADM dockworkers decided to stop unloading operations; a third of the soy had yet to be unloaded at that time. The next day, the shipowner concluded a collective agreement with another non-ITF-affiliated union. The dockworkers continued their boycott.

The shipowner initiated summary proceedings against terminals ADM and EBS, ITF, FNV and the ITF Inspectorate to end the boycott.

The judgment

The Court ruled that this was a spontaneous solidarity action covered by the Charter's right to strike. The fact that the crew of the ship itself was not on strike was irrelevant. The action was an appropriate means of inducing the crew's employer to improve working conditions and comply with specific agreements to that end (the charter party), and thus served a legitimate purpose. There was also sufficient cause for the action because initially there was no collective agreement at all. The problems had been made known, but no action from the employer followed and the employer showed no willingness to engage. The continuation of the strike was also lawful, according to the Court, because the collective agreement concluded later did not prima facie appear to be equivalent to an ITF agreement or acceptable to the ITF.

Regarding the involvement of unions, the judge ruled that it was not proven that this was a union-organised strike. The fact that the ITF inspector reported his findings to the terminals and dockworkers is insufficient to reach this conclusion. Disclosing the findings of a ship visit falls within the normal duties of such an inspector.

Finally, the court ruled that there was no ground to restrict or prohibit the strike. The claim of the shipowner that the remainder of the soy would soon be unmarketable and the shipowner suffered financial loss was insufficient. There was no infringement on the interests of third parties of such nature that restricting the right to strike was urgent from a societal point of view. It was taken into account that the shipowner was not a complete outsider in the relationship to the crew of her ship and therefore had more to bear.

The bottom line: solidarity actions are covered by strike law

Ask a lawyer a question and the familiar answer is: it depends on all the facts and circumstances. Such an answer, of course, gives little guidance. Even when assessing the legality of a specific strike, the facts and circumstances of that strike are very important. However, it follows from Dutch case law that solidarity actions fall under the fundamental right to strike and that it takes more than purely financial interests to restrict or prohibit a solidarity action in the port. The special solidarity between dockworkers and seafarers can thus make things difficult for shipowners who have insufficient regard for working conditions of seafarers on board ships that visit Dutch ports.

[1] The ITF in London is a federation whose members are trade unions. The ITF inspectorate in the Netherlands falls under a separate foundation. The Dutch ITF inspectorate is fulfilled from that foundation.

[2] This ruling is a so-called abbreviated ruling and has not been published.

[3] The consideration is in Dutch and has been translated into English for the purpose of this blog.