Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report.

1. Article 4 of the Convention. In its previous comments, the Committee had noted that section 10 of Act No. 408 – the Danish International Ships Register Act (DIS) – has the effect of, on the one hand, restricting the scope of negotiable issues by Danish trade unions by excluding from their bargaining power seafarers working on ships under the Danish flag who are not Danish residents and, on the other hand, preventing these seafarers from freely choosing the organization they wish to represent their interests in the collective bargaining process.

In its previous report the Government had indicated that the framework agreement between the social partners – the agreements on mutual information, coordination and cooperation concerning DIS ships, concluded since 1997 – had been prolonged to 31 December 2007. The Government indicated that this prolongation had taken the form of two agreements of 16 January 2004 (collective agreement with protocol attached) and of 15 December 2005 (collective agreement with protocol incorporated). The Government indicated in its report that two unions representing seafarers of a lower rank had wished not to be parties to the agreements: the United Federation of Danish Workers (3F) and its branch organization, the Union of Danish Seafarers, and the Union of Restaurant Workers (RBF) which had from 1 July 2006 been part of 3F. The Government had also indicated that the agreements still dealt with the conditions for seafarers and contained objectives concerning employment of Danish seafarers at an internationally competitive level, training of Danish seafarers and coverage of collective agreements between Danish shipowners and foreign unions, etc.

The Committee notes from the Government’s latest report that Danish trade unions that are parties to the agreement have since 1997 had the right to be represented in negotiations between the Danish shipowners/organizations of shipowners and foreign trade unions, with a view to ensuring that a negotiated result for the foreign seafarers is in accordance with internationally accepted standards of pay.

According to the previous report by the Government, the 2004 agreement between the social partners and the attached protocol also implied a continuance of special provisions which ensure in greater detail that conclusion of a collective or individual agreement with foreign seafarers without Danish residence was at an internationally acceptable level. The 2004 protocol thus stipulated minimum standards that must be included in collective agreements concluded with foreign trade unions in relation to, for instance, pay, working time, period of service on board, repatriation, sickness, etc., safety and health, holiday and complaint procedures. In order to ensure that the Danish contracting parties could represent a foreign trade union, the 2004 protocol had been extended with a provision to the effect that foreign seafarers on board DIS ships could hold double membership, for example be a member of one of the Danish unions party to the agreement and be, at the same time, a member of a trade union in the home country. These provisions had been incorporated in the agreement of 15 December 2005.

In previous comments, the Committee had taken note of the Government’s indication that, if Denmark was to maintain a merchant fleet with quality ships that could compete internationally, there was a continuous need to ensure that DIS constantly constituted an attractive and competitive ships’ register.

The Committee had also taken note of the communications of the Danish Confederation of Trade Unions (LO), the 3F and the Confederation of Danish Employers (DA), attached to the Government’s report. The 3F indicated that all Danish seafarers’ organizations agreed that paragraph 10 of the DIS Act should be amended and that the contact committee agreement did not exist because of the DIS Act but, in spite of the Act, and that it presupposed that participating unions accepted the shipowners’ rights under the Act; it therefore could not take the place of necessary amendments to the Act with a view to respecting Conventions Nos 87 and 98. The Committee noted that 3F indicated that neither 3F nor RBF were part of the agreements and that, according to 3F, the present system privileged the number of unions and not their representativity.

In its previous comments, the Committee welcomed the renewal of the agreements between the social partners and the adoption of the 2004 protocol, and, in particular, the new provision to which the Government had referred, but observed that the legislative aspect of the matter had not been resolved and that two trade union organizations had again decided not to be bound by the new agreements. The Committee underlined that section 10 of Act No. 408 had the effect of restricting the activities of Danish trade unions by prohibiting them from representing, in the collective bargaining process, those of their members who were not considered as residents in Denmark. Taking due note of the figures presented by the Government concerning the Danish shipping industry, and, in particular, that as of 30 September 2005, out of a total of 8,714 seafarers, 3,042 were foreigners and, stressing that this issue has been examined since 1989, the Committee requests, once again, the Government to indicate in its next report the measures taken or envisaged to amend section 10 of Act No. 408 so that Danish trade unions may freely represent all their members – Danish residents and non-residents – working on ships sailing under the Danish flag in the collective bargaining process, in conformity with Article 4 of the Convention.

2. Collective bargaining rights of majority organizations. This issue relates to the application of section 12 of the Conciliation Act and had been raised in previous comments following an examination by the Committee on Freedom of Association in Case No. 1971 in 1999. Section 12 makes it possible for an overall draft settlement, made by the Public Conciliator and sent out for ballot, to cover collective agreements involving an entire sector of activity, even if the organization representing most of the workers in that sector rejects the overall draft settlement. In its previous comments, the Committee had requested the Government to review the legislation, in consultation with the social partners, and to keep it informed of these consultations.

In its previous report, the Government had indicated that the central organizations, LO and DA, had discussed the rules on the linking of agreements of different occupational sectors and were of the opinion that section 12 should be seen in the light of the wording of Article 4 of the Convention and that the conciliation service must be said to be “a machinery for voluntary negotiation” as one of its most important purposes was to offer independent assistance in connection with the renewal of collective agreements and recommend concessions which seemed appropriate for a peaceful settlement of a dispute. According to the Government’s report, the opinion of the central organizations was underpinned by the fact that it was often a judge who exercised the function, that conciliators were not subject to instructions from the Government, and no financial considerations were taken in connection with submissions of compromise proposals. The Government indicated that the central organizations found that the conciliation service could not be said to be an element in the general exercise of public powers. The Committee noted that section 12 did not bar the social partners from negotiating and exerting their influence. All organizations negotiated the renewal of their own agreements and a compromise proposal could not be made by the Public Conciliator until all bargaining possibilities had been exhausted. The individual member was guaranteed influence in that the compromise was sent out for ballot and the linking rule did not mean that the collective agreement would apply to the entire sector; it was thus not a matter of an erga omnes principle. The adoption of a compromise proposal did not mean that the agreements concluded lapsed but, on the contrary, that they could be individually maintained. The rules served the purpose of avoiding that a number of occupational fields would become involved in a dispute because a single field that constituted a minority – maybe even a very small minority – was, for some reason or other, dissatisfied with the compromise result and had rejected the proposal. The Government stressed that the linking rule was a necessary element of the special organizational structure of the Danish labour market, characterized by many different agreements in the same enterprise and for the same occupation. On the one hand, it was thus not a matter of a system based on industrial unions but, on the other hand, the agreements for the same occupational field were, typically, negotiated together and at the same time. It was important to stress that a change in this generally well-functioning state of law would require basic changes in the Danish union and bargaining structures; changes that were not wished by any of the parties.

While taking note of the Government’s arguments, the Committee stressed in its previous comments that section 12 of the Conciliation Act could, in some cases, have the result of excluding the most representative trade union organization from the outcome of the negotiations of collective agreements or from the resolution of a conflict.

The Committee once again encourages the Government to engage in dialogue with the most representative workers’ and employers’ organizations on this issue in order to find the means to solve it. The Committee requests to be kept informed of any development in this regard. The Committee trusts that every effort will be made to fully ensure the collective bargaining rights of the most representative organizations and the principles of free and voluntary collective bargaining.