Nordic governments' sigh of relief as collective bargaining rights still intact

The cabin crew involved in the case consists mostly of women, while most pilots are men. As previously reported by the Nordic Labour Journal, the women felt discriminated against when they realised that the pilots’ collective agreement granted them higher travel allowances than what they received.

The question the EU Court of Justice had to answer was whether this differential treatment could constitute indirect gender discrimination, even though it was based on the fact that different collective agreements apply to the two groups. 

Both the Danish and Swedish governments expressed their opinions before the Court. They argued that if this were found to be illegal discrimination, it would have far-reaching and negative consequences for the autonomy of the social partners and their ability to negotiate and conclude collective agreements.

Their worries intensified when the EU Court’s Advocate General issued an opinion in June this year.

The Advocate General argued that the fact that the allowances were regulated in two separate collective agreements, negotiated with two different trade unions, did not exclude the possibility of discrimination. The difference in allowances could only be justified if the employer could prove it was due to factors unrelated to gender, such as the unions prioritising different things during negotiations. And the burden of proof would have to be high.

Therefore, the EU Court's ruling in early October came as a real anticlimax. The court did not address the issue of collective agreements at all. It simply stated that allowances are a form of pay and that the principle of equal pay applies to jobs that are equal or of equal value. Since the work of cabin crew and pilots is not of equal value, the cabin crew had not been discriminated against.