Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee has noted the Government's report on the application of the Convention, as well as comments alleging violation of the Convention, made by the Federation of Danish Trade Unions (LO) by letter of 19 August 1988, the Danish Seamen's Union by letters of 7 September and 7 October 1988, and the Federation of Danish Public Servants' and Salaried Employees' Organisations (FTF) by letter of 7 November 1988. The Committee also has noted the Government's reply to these comments, sent in January 1989, and the conclusions reached by the Committee on Freedom of Association in Case No. 1470 (262nd report of the Committee on Freedom of Association approved by the Governing Body at its 242nd Session, February-March 1989).

In its communication of 19 August 1988, the LO considers in particular that subsections 2 and 3 of section 10 of the Act on the Danish International Ships Register, adopted on 23 June 1988, violate the Convention.

Section 10 reads as follows:

(1) Collective agreements on wage and working conditions for employees on vessels in this register shall explicitly state that they shall be applicable for such employment only.

(2) Collective agreements as mentioned in subsection (1) which have been concluded by a Danish trade union organisation may only comprise persons who are considered to be residents of Denmark, or who by virtue of incurred international obligations shall be put on an equal footing with Danish citizens.

(3) Collective agreements as mentioned in subsection (1) which have been concluded by a foreign trade union organisation, may only comprise persons who are members of the organisation concerned, or persons who are citizens in the country where the trade union organisation is domiciled, in so far as they are not members of another organisation with which an agreement as mentioned in subsection (1) has been concluded.

(4) The Industrial Court Act shall also be applicable in cases to which a foreign trade union organisation is a party.

According to the LO, it follows from subsection 2 of section 10 that Danish wage-earner organisations can only conclude agreements for persons domiciled in Denmark. It follows from subsection 3 of section 10 that foreign wage-earner organisations may conclude parallel agreements for their own nationalities. A Danish ship registered in the Danish International Register may then for example conclude three agreements, one for Danes, one for Poles and one for Filipinos.

In its communication of 7 September 1988, the Danish Seamen's Union quotes the Minister of Industry indicating, in his written introduction of the Bill to the Danish Parliament, that "The establishment of a Danish International Ships Register will enable Danish shipowners to employ foreign crews on the wage terms applying in the native countries of those crews".

According to the same communication, the Act prevents the Danish Seamen's Union from entering into collective agreements for a significant part of its own members. The Danish Seamen's Union claims that now about 400 of its members annually cannot be embraced by the agreements entered into by it, either because - notwithstanding that they are Danish citizens - they have no residence in Denmark, or because - despite the fact that they may have been sailing on Danish ships for several years - they are not included in the circle of persons towards whom Denmark has international obligations as is required under section 10(2). The Danish Seamen's Union points out that the Act of 23 June 1988 substantially curtailed the scope of the merchant shipping agreements applying until then, because 82 per cent (measured in terms of gross register tonnage) of the Danish merchant navy was transferred to the Danish International Ships Register and thus withheld from the provisions of the agreements hitherto in force.

In its communication dated 7 October 1988, the Danish Seamen's Union states that, after the adoption of section 10 of the Act, the largest association of shipowners (the Danish Shipowners Association) has now concluded collective agreements with shipping organisations from the Philippines and Singapore. Under these agreements, the employers agree to pay hourly wages to able-bodied seamen from these two countries at the rate of 20 kroner and 27 kroner respectively. By comparison, the employers are obliged to pay Danish seamen 54 Kroner per hour. It adds that other terms of wages and employment have been correspondingly depreciated for seamen from the Philippines and Singapore.

In its reply to these comments, the Government has expressed the view that the Act on the Danish International Ships Register contains no discriminatory provisions, and no discrimination takes place due to race, religion, sex, national origin, etc. Employment on board ships registered in the Danish International Ships Register is open to anybody. All seamen are covered by Danish legislation and have a right to organise and conclude collective agreements. All persons employed on board a ship flying the Danish flag thus have the same basic rights. In this connection, the Government observes that the alternative to ships registered in the Danish International Ships Register is ships flying a flag of convenience.

According to the Government, the fact that all persons residing in Denmark - irrespective of their race, sex, nationality, etc. - may be covered by Danish collective agreements is not in conflict with the Convention. Danish citizens who have their residence abroad are in the same manner outside the field of application of Danish collective agreements. As regards the agreements with organisations from the Philippines and Singapore mentioned by the Danish Seamen's Union, the Government indicates that these are agreements concluded following voluntary negotiations, and that this has nothing to do with discrimination.

According to the Government, the Act to set up the Danish International Ships Register was necessary to preserve jobs on board Danish ships on Danish terms of employment; the Act, which lays down general guide-lines in a new and very special field, is based on the assumption that this field is regulated by conclusion of collective agreements, and the Government considers that developments have confirmed that the field is regulated by collective agreements which do not entail actual deterioration in the living standard and employment opportunities for seamen.

The Committee takes due note of these indications. Referring to the explanations provided in paragraphs 17 to 18 and 36 to 37 of its 1988 General Survey on Equality in Employment and Occupation, the Committee observes that, while the Convention applies to all persons, whether or not they are citizens or residents of the ratifying country, distinctions made in employment and occupation on the basis of citizenship or residence are not necessarily relevant to one of the seven grounds of discrimination referred to in Article 1, paragraph 1(a), of the Convention. The relevance of such distinctions to the prohibited grounds of discrimination must be examined in the light of their concrete consequences.

In the present case, one effect of section 10, subsections 2 and 3, of the Act on the Danish International Ships Register is that non-resident seamen from the Philippines and Singapore on board Danish ships, whether or not they are members of Danish trade unions, and although Danish legislation continues to apply to them, stand deprived of the benefits of collective agreements concluded by Danish trade unions. As a further direct consequence from this, section 10, subsections 2 and 3, of the Act makes room for separate collective agreements providing for differences in wage rates between Filipino and Singaporean seafarers on board Danish ships. These differences in treatment are not based on differences regarding Danish citizenship or residence; they establish a discrimination among non-resident non-citizens on the basis of their national origin and are therefore incompatible with the Convention.

As regards the voluntary nature of different collective agreements providing for different wage rates, the Government remains responsible for a discrimination in employment which follows from its legislative interference in the free collective bargaining of Danish trade unions on board Danish ships. In this connection, the Committee refers to its comments under C. 98.

Moreover, as regards the provision in section 10, subsection 2, of the Act according to which Danish trade unions may bargain on behalf of non-resident non-citizens only where by virtue of incurred international obligations these shall be put on an equal footing with Danish citizens, the Committee refers to paragraph 18 of its aforementioned General Survey of 1988, where it pointed out that reciprocity stipulations governing the application to foreign seafarers of the anti-discrimination provisions in maritime legislation are not in accordance with the Convention.

The Committee hopes that the Government will re-examine section 10 of the Act on the Danish International Ships Register in the light of the Convention as well as of the principles of freedom of association and collective bargaining, and that it will indicate measures taken or contemplated to bring national law and practice again into conformity with the Convention in this regard.