Definitive Report - REPORT_NO324, March 2001

1. 485. In communications dated 26 November 1999 and 11 January 2000 the Danish Nurses' Organization (DNO) and the Confederation of Salaried Employees and Civil Servants in Denmark (FTF) submitted a complaint of violations of freedom of association against the Government of Denmark.
2. 486. The Government sent its observations in a communication dated 27 April 2000.
3. 487. Denmark has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 488. In their communication dated 26 November 1999, the Danish Nurses' Organization (DNO) and the Confederation of Salaried Employees and Civil Servants in Denmark (FTF) indicated that the negotiations between the DNO and the employers at county, local and city levels on renewal of the collective agreements as at 1 April 1999 concluded in a result on 16 March 1999. However, the result of the negotiations was rejected in a ballot among the nurses, after which a declared strike became effective on 13 May 1999.
2. 489. Approximately 10 per cent of all nurses were affected by the strike and, in accordance with the general agreements, the DNO and the employers had concluded agreements to maintain emergency and vital services. The agreements to maintain emergency and vital services implied that all nursing/radiograph functions which the doctors of the respective departments prescribe as vital, urgent or required in order to avoid potential consequences that may endanger the health of patients or have permanent health effects would be maintained to ensure that the life, personal safety and health of the patients were not unduly threatened.
3. 490. On the other hand, the strike did mean that planned surgery that did not threaten the life, personal safety and health of the patients was postponed, leading to an increase in the so?called "waiting lists", but experience has shown that the delays in relation to surgery, etc., are recovered within a fairly short period of time. Furthermore, the strike covered home-care services in selected municipalities, but again all vital functions were carried out, ensuring that, for example, diabetic patients received the necessary insulin treatment.
4. 491. The complainants emphasized that it was being indicated from all quarters, including the Danish Government, that the emergency services functioned as intended. After just seven days of conflict, the Danish Parliament passed an Act on 21 May 1999 on extension and renewal of employment contracts and agreements for nurses, radiographers, district nurses, etc., terminating the strike from midnight on 21 May 1999. A copy of the Act is attached to the complaint. The intervention had the effect that the draft settlement which had been rejected was given the force of law, and the contracts and agreements were extended and renewed for a period of three years.
5. 492. In reference to, inter alia, the provisions of the general agreements on the setting up of emergency services in connection with lawful conflicts, the complainants contend that the Danish Parliament should not generally interfere in lawful conflicts, and certainly not as prematurely as was seen in the spring of 1999. Furthermore, they consider that the duration of the extension is unacceptable in the light of the fact that the intervention enacted the very result of the negotiations which had been rejected in a ballot among the members. According to the complainants, this is a violation of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
6. 493. The complainants request that the Government be informed of the conclusion of the Committee on Freedom of Association with respect to this complaint and that - if indicated in the light of that conclusion - the Government should within a reasonable time limit present a report on any corrective measures that might be taken. In this respect, the complainants hope that the Government's repeated violations will persuade the Committee on Freedom of Association to: (1) adopt a harsher critique of the measures terminating the strike in spite of well-functioning emergency services; (2) make forceful recommendations regarding appropriate guarantees to protect the interests of employees deprived of the right to bargain collectively; and (3) condemn even more forcefully the repeated practice of statutory prolongation of collective agreements.
7. 494. In their communication dated 11 January 2000, the complainants highlight the differences between this case and a similar case which had been examined by the Committee in respect of Denmark (Case No. 1882). In connection with the strike by the DNO in 1995, the employers' side had effected an extensive lockout, and this was undoubtedly a factor which strongly contributed to the legislative intervention by the Government. The strike in 1999 however covered approximately 10 per cent of the total of 50,000 nurses and the conflict was not extended by a lockout from the employers.
8. 495. According to the complainants, the Government cannot therefore use the argument that the conflict was extremely extensive, as was the case in 1995, to justify the legislative intervention in 1999. Furthermore, the complainants believe that the employers speculated in legislative intervention, since several of the political parties in the Danish Parliament intimated in the daily newspapers already a few days after the conflict started that there would be rapid legal intervention.
9. 496. The complainants moreover submit that the legislative intervention in 1999 was more extensive than the intervention in 1995 since, for the latter, a provision was included in the Act to the effect that the nurses' conditions of pay and employment should be investigated and adjusted within a specified framework by a committee with equal representation of the parties.
10. 497. When the Government intervened in 1999, 6,000 operations and 28,000 preliminary examinations had been cancelled, whereas in 1995, 26,000 operations had been cancelled. The delays in relation to surgery that had been cancelled in 1995 were recovered within a fairly short period of time. There are no publicly available statistics on the number of operations and preliminary examinations that are cancelled in normal circumstances. Furthermore, when the Bill came up for reading in the Danish Parliament, the Government stated that the conflict did not give rise to any situations that threatened the life, personal safety and health of the patients. The result of the negotiations was rejected in a ballot among the nurses on 16 March 1999 and the strike became effective on 13 May 1999. There was no immediate reaction from the employers and there were no further negotiations between the employers and the employees.

B. The Government's reply

1. 498. In its communication dated 27 April 2000, the Government indicates that, in 1999, negotiations took place in the public sector (the State and the counties/municipalities) concerning the renewal of the collective agreements which were to expire on 1 April. The renewals affected more than 800,000 employees - of which more than 600,000 were in the county/municipal sector.
2. 499. Both in the state sector and in the county/municipal sector, the negotiations started with negotiations concerning the framework for the renewal of the collective agreements. The employees' organizations in both of these public sectors have for this purpose established separate negotiation bodies. Prior to each round of negotiations concerning the renewal of the collective agreement, the organizations agreed on the course of the negotiations and the commitment in relation to the negotiation result.
3. 500. In the county/municipal sector the negotiations about the general framework took place between the county/municipal employers and the employees' negotiating body, the Association of Public Servants and other Public Employees (KTO). The KTO represents 62 member organizations with about 643,000 members. The KTO covers all employees in county and municipal administrations. The aim of the KTO is that the organizations act together in negotiations concerning general pay and working conditions. The KTO concludes collective agreements with the employers (the National Association of Municipal Associations (KL), the National Association of County Associations (ARF), and the municipalities of Copenhagen and Frederiksberg) in connection with the general collective bargaining rounds in the county/municipal field. The KTO cannot enter into binding agreements on behalf of the organizations. Each individual member organization is to approve the agreement(s) concluded by the KTO before it will be bound.
4. 501. The negotiations between the county/municipal employers and the KTO concerning the general framework took place in the months of January and February 1999 and were concluded by a compromise already in the month of February 1999. The main elements of this compromise were the framework for wage increases, the continued financing of a new wage system, a currency period of three years for collective agreements and other benefits. This compromise was based on an assumption of general wage increases of 5.96 per cent over a three-year period. The result of the compromise was a "package solution" and the agreement between the employers and the KTO had been reached on the assumption that it was accepted as a general KTO agreement.
5. 502. After agreement had been reached on the general framework, the negotiations continued successfully on specific themes within individual occupational fields/organizations where agreement was reached. The results of the compromises in the individual fields covered under the framework of the KTO compromise were made the subject of a ballot among the members of the individual KTO organizations.
6. 503. In some fields, the negotiation results were rejected by the members. This was, for instance, the case of nurses, bio-analysts, midwives and teachers. Strike notices were then issued and, at the same time, the negotiating parties in the individual sectors started new negotiations. Following the rejection of the negotiation result in the field of nurses, the negotiations in this field were resumed - this time with the assistance of the Public Conciliator. But, on 12 May 1999, the Public Conciliator had to draw the conclusion that further negotiations would not lead to any result and that there was no basis for postponing the strike which then started as described.
7. 504. In the field of nurses, the negotiators thus failed to reach any new result during the period of four weeks before the notified dispute could start or during the strike. The strike started on 13 May and ran until 22 May when it was stopped by legislative intervention. The Act prolonged and renewed the collective agreements of nurses, radiographers and district nurses with the amendments following from the negotiation result which had been rejected by the employees.
8. 505. The strike affected about 5,000 nurses, of which about 2,500 were district nurses in 15 municipalities. The district nurses are responsible for the care and nursing of elderly and sick persons in their own homes. The emergency services set up were functioning and ensured the performance of tasks which were vital, urgent or necessary to avoid health impairments or permanent health effects. After a period of eight days, however, the Government found the situation serious for exposed groups of the population in spite of the emergency services established in the sectors affected by the strike. A protracted dispute could be foreseen and, against the background of the deadlock positions of the two sides, this would at some point in time involve a risk to the health of the population.
9. 506. It was, in particular, a serious situation that the district nurses in the 15 municipalities affected by the strike were not able to offer the same care as usual to sick and elderly persons; this could lead to insecurity, inconveniences and, in the last analysis, to suffering for a population group which was already an exposed group. Furthermore, the Government was very concerned about the fact that planned operations were cancelled in great numbers which meant that constantly growing groups of the population were experiencing further inconvenience and pains as well as insecurity as to when their suffering could be remedied. The Minister of Health estimated that it was a matter of about 1,500 operations daily. At the same time, pre-examinations were also postponed on a large scale and this could mean that serious diseases were not diagnosed until a (maybe too) late date.
10. 507. The emergency services established did not compensate for cancelled operations and the lack of pre-examinations. This situation in the field of healthcare should be seen in the light of the fact that there was no prospect of the two sides being able to solve the dispute on their own. This difficult situation was clearly demonstrated by the fact that the Public Conciliator had to give up any conciliation attempts and even refrained from postponing the announced industrial disputes. But, it became even more clear when both sides to the dispute clearly indicated to the Minister of Labour that there were no signs of a rapprochement between them. The bargaining positions of the two sides had not changed since the outbreak of the dispute. On the part of the strikers, it had been clearly indicated that only an increase in the wage sum beyond the framework laid down in the KTO compromise would be acceptable and that a reallocation of means within this framework had been rejected. The employers had refused to increase the wage sum for these groups which had turned down the negotiation result and other employees' groups within the KTO supported the employer's conception of this matter.
11. 508. Under these circumstances, the Government and the Folketing found that it would be meaningless and irresponsible in relation to the population to allow the dispute to continue and brought the dispute to an end on 22 May 1999 after nine days.
12. 509. The Government does not find that this Act is a violation of ILO Conventions Nos. 87 and 98 and wishes to stress that one of the main elements of its deliberations was the fact that there was no prospect of the two sides being able to find a solution on their own and that the sector within which nurses are working belongs to essential services with a risk of development of situations of dangers to health and safety.
13. 510. The Government also finds it important to note that the two sides had had the chance to continue their negotiations both during the month preceding the outbreak of the strike and during the period of eight days for which the strike had been running. When the complainants argue that the dispute had been running for "just seven days" and that the Government had admitted that the emergency services were functioning satisfactorily, it should be noted that it is true that the dispute had not until then led to any fatal situations. A responsible Government, however, cannot wait for that sort of situation to arise but has to act on the basis of an evaluation of the risk of the occurrence of such situations. Considering the deadlock positions, the Government found that the two sides were not able to solve the dispute themselves within a foreseeable future - a time perspective which was so long that the risk of fatal situations and unacceptable suffering for the population could not be accepted.
14. 511. The Government also wishes to emphasize that the act prolonged and renewed the collective agreements in question, with the amendments following from the overall negotiation result in the county/municipal sector which all other sectors finally accepted. This special joint negotiation body is, of course, of a mutual nature and the reactions from the other groups of employees clearly showed that a breach of solidarity would not be accepted. The compromise had been agreed on the assumption that it was a "package solution" and this had been accepted by all of the organizations in the KTO. The Government did not find it appropriate to propose a reallocation within the given framework as the nurses had already clearly indicated that they were not interested in such a reallocation.
15. 512. Furthermore, the Government does not agree with the complainants' allegation that the Government automatically intervenes in lawfully established strikes. As mentioned above, the midwives also rejected the result which their negotiators had agreed on with the employers; the subsequent lawfully established strike went on for a month before the negotiators reached a new agreement which was then approved by the members.
16. 513. By way of conclusion, the Government finds that the nurses' voluntary participation in the joint negotiating body, the KTO, meant that it would in reality not be possible for them as the only group to break the common framework set for the negotiations which they had all agreed upon. On the other hand, the nurses were not interested in a reallocation of the means within the framework which had solved the problems for other groups (teachers, bio-analysts and midwives) who had turned down their respective agreements in the first round. The prospect was thus a protracted dispute and the Government could not assume responsibility for the risk of fatal situations and suffering for the population that a dispute might have entailed irrespective of the emergency services set up.

C. The Committee's conclusions

1. 514. The Committee notes that the allegations in this case concern the legislative interruption of lawfully undertaken industrial action in the hospital sector at the county, local and city levels and the legislative extension of collective agreements for the nurses and hospital workers concerned. The Committee further notes that the complainants believed that the employers speculated in legislative interventions.
2. 515. The Committee recalls that it had examined a similar case against the Government of Denmark concerning legislative interruption of strike action and legislative extension of collective agreements in the hospital sector in its 306th Report (Case No. 1884). In this case, the Committee had concluded that, given the essential nature of the service in question, the legislative intervention that had put an end to the industrial action could not be considered to be an infringement of ILO principles on freedom of association. On the other hand, the Committee considered that the statutory renewal and extension of collective agreements covering nurses was not in conformity with the principle of free collective bargaining under Article 4 of Convention No. 98 and requested the Government to refrain from taking such measures in the future [see 306th Report, para. 438].
3. 516. The complainants in this case draw the Committee's attention to two distinctions between the earlier case and the present complaint. Firstly, the complainants state that in the previous case the strike was further exacerbated by an extensive lockout action by the employers which created a situation wherein the minimum service required could not be met, whereas in the present case the established minimum service was being ensured and no lives were in danger. Indeed, the Committee notes both from the complainants and the Government that the strike in the present case had not yet resulted in harm to the life, personal safety or health of whole or part of the population. The Committee takes due note, however, of the Government's indication that a responsible Government cannot wait for that sort of situation to arise, but has to act on the basis of an evaluation of the risk of the occurrence of such situations. At the same time, the Committee notes the complainants' statement that the concluded agreement on minimum services gave the doctors of the respective departments the authority to prescribe the necessary functions to be maintained during the strike.
4. 517. In this respect, the Committee once again recalls that the right to strike may be restricted or even prohibited in the case of essential services in the strict sense of the term, i.e. services whose interruption would endanger the life, personal safety or health of whole or part of the population and that it has considered the hospital sector to be an essential service [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 526 and 544]. To determine situations in which a strike could be prohibited, the criteria which has to be established is the existence of a clear and imminent threat to the life, personal safety or health of the whole or part of the population [see Digest, para. 540]. In the case of Denmark where the legislation permits industrial action in the hospital sector when minimum services are provided, the assessment of any risk justifying restrictions on the otherwise lawful industrial action is within the Government's prerogative. Any questions related to the application of the national legislation in this respect are at least in the first instance a matter for determination at the national level. The Committee therefore considers that the termination of the hospital sector strike by the Danish Parliament does not constitute a violation of ILO principles on freedom of association.
5. 518. A second distinction from the previous case raised by the complainants concerns the legislative extension of the collective agreements which was, according to them, far more extensive in the present case than the intervention that occurred in 1995. In this respect, the Committee once again recalls that where the right to strike is restricted or prohibited in essential services such as hospitals, adequate protection should be given to the workers concerned to compensate them for this limitation on their freedom of action. This could be done, for example, by providing adequate, impartial and speedy conciliation and arbitration procedures in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented [see Digest, op.cit., paras. 546 and 547]. When examining the specific question of guarantees to compensate for restrictions on the right to strike in Case No. 1884, the Committee had considered that the 1995 legislative intervention which had provided for the appointment of committees comprised of the concerned parties to analyse the activities, salary levels, etc., for negotiations to be entered into and, in the absence of agreement, for a determination to be made by the chairpersons of the committees, represented adequate, impartial and speedy procedures with the involvement of the parties and, as such, safeguarded the interests of the workers whose strike action was restricted [see 306th Report, para. 431].
6. 519. In the present case, the legislative intervention has imposed until 31 March 2002 the draft settlement which had been rejected by the nurses. No committees were established as in the case of the previous intervention permitting for further negotiation, and, if necessary, in the event of a deadlock, providing for machinery that enjoys the confidence of all parties concerned; instead, the terms of a previously rejected negotiation were unilaterally imposed on the workers.
7. 520. The Committee takes due note of the Government's indication concerning the procedures for negotiations in the public sector. It notes that the employees' negotiating body in the public sector, the Association of Public Servants and other Public Employees (KTO), represents 62 member organizations with about 643,000 members. While the KTO concludes collective agreements in connection with the general collective bargaining rounds in the county/municipal field, it cannot enter into binding agreements on behalf of the organizations it represents. Each individual member organization must approve the agreement(s) concluded by the KTO before it may be bound.
8. 521. The negotiations between the county/municipal employers and the KTO concerning the general framework took place in January and February 1999 and, according to the Government, were concluded by a compromise representing a "package solution" on the assumption that it was accepted as a general KTO agreement. After agreement had been reached on the general framework, the negotiations continued successfully on specific themes within individual occupational fields/organizations where agreement was reached. The results of the compromises in the individual fields covered under the framework of KTO compromise were made the subject of a ballot among the members of the individual KTO organizations. The members in some fields such as nurses, bio-analysts, midwives and teachers rejected the negotiation results. Strike notices were issued and at the same time the negotiating parties in the individual sectors started new negotiations. In the field of nurses, the negotiations resumed with the assistance of a public conciliator who concluded in May 1999 that there was a deadlock and that there was therefore no basis for postponing the strike.
9. 522. The Government emphasises that the Act prolonged and renewed the collective agreements with the amendments following from the overall negotiation result which all the other sectors had finally accepted. The special negotiation body which had reached this package solution was of a mutual nature and, according to the Government, the reactions from the other groups of employees clearly showed that a breach of solidarity would not be accepted. The Government considers that the nurses' voluntary participation in the KTO meant that it would not be possible for them to break the common framework set for the negotiations which they had all agreed upon. On the other hand, the Government asserts that the nurses were not interested in a reallocation of the means within the framework which had solved the problems for other groups who had turned down their respective agreements in the first round.
10. 523. While taking into due consideration the Government's explanation of the applicable procedures for negotiations within the public sector, the Committee observes that these procedures also provide that each member organization of the KTO is to approve the agreement before it will be bound. Yet, in the present case, the nurses are now legislatively bound by an agreement which they had rejected. While the Government states that the only solution for the nurses would have been an unacceptable break from the common framework which all member organizations had agreed upon, the Committee observes that the legislative extension of the collective agreements as amended by the rejected agreement was imposed by the same Act that terminated the industrial action. In other words, no further opportunities were given to the nurses to re-enter into negotiations or have the benefit of other dispute resolution mechanisms once their right to strike had been restricted. In these circumstances, the Committee considers that the Government did not take appropriate steps to ensure the provision of compensatory guarantees for workers who had been deprived of the right to strike. It requests the Government to consider with the social partners, measures to ensure that, whenever the exercise of the right to strike is legitimately restricted in the future, adequate protection is given for this limitation on freedom of action by means of dispute resolution mechanisms which enjoy the confidence of all parties concerned.
11. 524. Furthermore, the Committee must recall that a basic aspect of freedom of association is the right of workers' organizations to negotiate wages and conditions of employment freely with employers and their organizations and that any restriction on this right should be imposed as an exceptional measure and only to the extent necessary, without exceeding a reasonable period; any restriction should be accompanied by adequate safeguards to protect living standards of the workers concerned [see 306th Report, para. 432]. As in the previous case which it had examined concerning Danish nurses, the Committee now notes that the Act in question puts an end to negotiations in this sector for several years (in the present case, from 21 May 1999 until 31 March 2002, the life of the statutorily extended agreements). As in previous cases concerning Denmark (Case No. 1421 concerning junior doctors and Case No. 1884 concerning nurses), the Committee is of the opinion that government intervention went beyond the criteria set out above since the method used went beyond the extent necessary and a reasonable period by prolonging and extending the terms of the agreements for a period just short of three years. While noting once again the Government's indication that negotiations and conciliation procedures undertaken prior to the industrial action had proven to be in vain, the Committee reiterates its observations it had made in the previous case [see 306th Report, para. 436] and in this case concludes that no evidence had been put forward to show that the hospital sector was faced with an emergency situation such as to justify intervention in voluntary collective bargaining. Further, given the repetitive recourse to such intervention and the lengthy extension of the imposed agreements, the Committee must once again urge the Government to refrain from taking such action in the future.