Update Volume 2020/32 'Dockers' Clause' following judgment dated 27 August 2020
Since January 1, 2020, the "Dockers’ Clause" is in force as part of the International Bargaining Forum (IBF) agreement between the Joint Negotiating Group on behalf of shipowners and the International Transport Workers' Federation on behalf of seafarers in relation to cargo operations involving container vessels. The Dockers' Clause is part of the agreements on remuneration and terms of employment that have been agreed at an international level by trade unions and employers (organisations). These agreements are intended to be implemented in the collective and individual employment agreements of seafarers.
In a recent case in the Netherlands, FNV Havens, together with the Nautilus and Verdi divisions of the International Transport Workers' Federation (ITF), filed a case against Marlow (employment agency) and Expert Shipping B.V. (owner of a ship crewed by seafarers employed through Marlow). A number of companies active in the European short sea and feeder transport had joined the defendants. The crew was employed under a Nautilus Special Agreement that included the Dockers' Clause. The procedure dealt with the following:
- Marlow and the owner had, according to the plaintiffs, acted in violation of the Dockers' Clause by having lashing operations carried out by seafarers instead of dock workers. The plaintiffs believed that such work should only be carried out by specialized lashing companies.
- It was argued on behalf of Marlow and the owner that such a strict interpretation of the Dockers 'Clause' would be unreasonable as it posed risks for crew members due to the corona pandemic, would lead to delays and additional costs and would make the port of Rotterdam economically unattractive for container ships. In addition, it was pointed out that the crew was paid separately for this.
- It was also argued on behalf of the shipowner that the Dockers' Clause was in breach of Article 101 TFEU and / or Article 6 of the Competition Act because the clause prevents or restricts competition within the internal market between ship operators, now that they can no longer compete on the flexibility and cost-efficiency of their services through the performance of lashing activities and because all lashing activities are reserved for the ITF affiliated lashing companies.
- The plaintiffs had requested the court to impose a penalty payment of 24,000 euros for each violation.
The claims against the shipowner were rejected. According to the judge hearing the preliminary application, he could not preclude the possibility that the judge in first instance would find that the application of the Dockers' Clause in the manner proposed would be unreasonable.
In particular, the fact that during the drafting process there were no discussions with shipowners and time charterers prior to implementation of the Dockers' Clause, despite the fact that compliance with the clause will have a major impact on their business operations, played an important role in the judgment. In addition, it remains possible that the Dockers' Clause will be found to fall outside of competition law. We shall await with interest the decision of European Commission in the complaint that has now been filed regarding the matter.