Individual Case (CAS) - Discussion: 1989, Publication: 76th ILC session (1989)

The Government has sent the following information on developments in connection with negotiations with a view to renewal of the collective agreements in the spring of 1980:

(a) The Private Sector

Negotiations with a view to the renewal of collective agreements take place every second year in the spring in Denmark. Collective agreements in the private labour market expire on 1 March and collective agreements in the public labour market and a few private sectors expire on 1 April. These negotiations have a direct and an indirect impact on that part of the labour market which is regulated by collective agreements; in Denmark this is a very large part of the total labour market. In recent years the general trend has been for negotiation in the private labour market to take place between the individual national unions and the opposing employer organisations, i.e. so-called decentralised negotiations, as opposed to negotiations conducted at the central level by LO (the Federation of Danish Trade Unions) and DA (the Danish Employers' Confederation) on behalf of their member organisations.

In the spring of 1987 collective agreements were concluded in the usual manner on the private labour market. This time it was, however, agreed that the collective agreements would run for a period of four years; one of the reasons for this was that working time was reduced by two hours per week under the new agreements. The collective agreements provided, however, that negotiations could take place in the spring of 1989 concerning pay rates. These negotiations could be conducted in the usual way and the parties would have the right to call a strike or lockout if they failed to reach agreement.

As an element of the tripartite negotiations which the Government conducted in the autumn of 1987 and later with the social partners, a common declaration was adopted by the three parties in December 1987 which stressed, among things, the decisive importance of ensuring that the development in costs in Denmark did not exceed that of other countries.

It is important for the understanding of further developments to realise the distinction between the so-called normal pay agreements and minimum pay agreements. Normal pay agreements are characterised by the fact that the pay rates are expressly fixed in the collective agreement. This means that the development in wages is fixed once and for all in connection with the collective bargaining process. Minimum pay agreements are characterised by the fact that it is only the minimum pay that is regulated in the agreement. The amount of actual wages received by the individual employee is fixed through negotiations at the individual enterprise by means of "personal supplements" to the wage. Negotiations concerning the amount of such supplements may, in principle, take place any time during the term of the collective agreement.

The actual negotiations with a view to the renewal of the collective agreements are consequently - when it comes to wage rates - of less importance in fields with the minimum pay system than in fields with the normal pay system. An increase in the minimum wage by a certain percentage does not necessarily mean that all employees covered by this collective agreement will receive the same percentage wage increase. That will depend on local negotiations concerning personal supplements. For the same reason it has been pointed out by the employer side that it is not possible simply to project an increase in the minimum pay to a field with the normal pay system because the employees covered by the normal system would in this way obtain a wage increase which would on average be higher than that of the employees working under the minimum pay system.

Negotiations between the parties in the individual fields covered by collective agreements continued until mid-February 1989. The negotiations were very difficult and actually broke down at some points. From the employee side, notice of massive strikes (excepting only in quite essential sectors) had therefore been given. The strikes were to take effect from 6 March.

On 19 and 21 February 1989 there was a breakthrough in the negotiations in two sectors within the field covered by the minimum pay system: the clerical field (clerical staff and shop assistants) and the iron industry. The main element of the agreement was an increase in the minimum pay rate of about 1.25 D.kr. per hour in each of the following two years. The parties had agreed that these negotiation results should form part of the draft settlement that they expected the Public Conciliator to propose for the whole private labour market.

At this stage the negotiations in the other fields continued within the framework of the public conciliation system. In the other fields covered by the minimum pay system the Public Conciliator invited the parties to reconsider the situation in the light of the breakthrough in the two sectors (clerical field and iron industry) mentioned above. In the field covered by the normal pay system the Public Conciliator selected three fields where special efforts should be made to come to a result with her assistance.

In the fields with the minimum pay system, results were rather quickly obtained corresponding to those in the clearical field and iron industry. In the fields covered by the normal pay system it was not possible for a long period of time to bring the parties any closer to each other. At some point the negotiations of the Public Conciliator were even suspended; the decisive negotiations were not resumed until 1 March. On 3 March an agreement was obtained between the Association of Employers of the General Danish Industries on the one hand, and the Union of Danish Semiskilled Workers and the Female Workers' Union, on the other. The most important element of this agreement was an increase in wage rates by 1.10 D.kr. per hour in each of the following two years. On the same day the Public Conciliator again invited the parties in the remaining normal day fields (as she had earlier done for the minimum pay field) to reconsider the situation in the light of the breakthrough which had taken place in the negotiations. At the same time she used her powers to postpone for a period of 14 days the strikes of which notice had been given in order to give the parties time for such consideration.

These negotiations led to negotiation results in a number of other fields covered by the normal pay system; on 11 May the Public Conciliator was able to put forward a draft settlement covering most of the private labour (excluding the agricultural and the financial sectors as they conduct their own negotiations). The draft settlement was adopted by the parties on 30 March 1989.

In a few other fields collective agreements were concluded without the assistance of the Public Conciliator. This was the case, for instance, in parts of the financial sector and in negotiations between the Danish Seamen's Union and the Association of Danish Shipowners. In other fields the Public Conciliator had to be involved in the negotiations and a draft settlement was proposed which has now been adopted. This was the case, for instance, in the agricultural and banking sectors.

(b) The State Sector

Pay and working conditions for employees in the state sector are, as a general rule, laid down in collective or other agreements. Such agreements are concluded between the Ministry of Finance and the organisations which have the right to negotiate for the employees concerned. The Ministry of Finance represents all employers in the state sector in these negotiations.

There are about 250,000 persons employed in the state sector. About 150,000 of them are public servants, while the remaining 100,000 are employed under a collective agreement, with pay and other working conditions more or less identical to those applying the normal pay system in the private sector. In recent years many different organisations have had the right to negotiate on behalf of employees in the state sector. This has made negotiations difficult and time-consuming. In connection with the renewal of agreements, the parties conclude agreements concerning the general framework for pay and working conditions, normally for a 2-year period. This includes, for instance, general changes in pay rates, working time and holiday.

In the spring of 1987 agreement was reached in the usual manner with the organisations of the public servants; subsequantly collective agreements were concluded with the organisations of the staff employed under collective agreements.

As regards working time, the regulation scheme and regional allowances the agreements concluded in 1987 were to run for a period of four years.

The negotiations in 1989: In recent years radical changes have taken place in the negotiation patterns on the employee side. A number of employee cartels have developed; this means that the central organisations which negotiate directly with the Minister of Finance represent about 95 per cent of the employees in the state sector. This has made it possible to solve general problems more easily and to bring the negotiations to a conclusion more quickly.

The negotiations - both in the public sector and on the private labour market - took place in the light of the agreement reached during the tripartite negotiations concerning the importance of attaining a lower development in costs than that of other countries. To this should be added that the public employers had indicated to the employee organisations that they found it extremely important to ensure that the public wage systems were made much more flexible. This could be obtained in the form of individualisation and increased decentralisation of the determination of wages and salaries. Furthermore, it was a demand from the employer side that the many different sets of rules concerning working conditions etc. should in the future be made more simple, open and uniform.

On 14 March 1989 the parties in the state sector concluded an agreement concerning the renewal, for a 2-year period, of collective and other agreements. The agreement fixed a framework of 2.5 per cent during this period, broken down as 1.5, per cent for general increases in wages and salaries and 1 per cent for selective pay increases, including also those necessary in order to achieve the increased flexibility which was one of the main demands of the employers. Within this framework it was further agreed to introduce full pay in connection with maternity leave from 8 weeks before the confinement until 24 weeks after and the introduction of a pension scheme for about 40,000 employees who had not been covered by a labour market pension scheme. At the same time a committee was set up to come up with concrete proposals for a simplification and harmonisation of the system of collective and other agreements during this period and prior to the next round of negotiations. It was also agreed to set up a committee which is to examine the existing sets of rules and come up with proposals concerning a uniform agreement on cooperation.

As regards those 5 per cent of the employees who are covered by the general negotiations with the Minister of Finance, agreement has been reached about the renewal of the collective agreements for the coming two years. There is only one organisation which has - after giving a strike notice - asked the Public Conciliator for assistance in the negotiations: it is now expected that a result will be obtained also in this case.

(c) The Municipal/County Sector

About 480,000 persons are employed full-time in the 275 municipalities and 14 counties of Denmark. Among the functions they perform are: child care (nurseries, kindergarden, day care), nursing and care of old persons, teaching in the primary school system and in the upper secondary schools, health care, supply of essential services, environmental protection, care for disabled persons and administration of the tax authorities.

Pay and working conditions for teachers in the primary school system follow the rules applying to public servants in the state sector and are fixed by negotiations between the Teachers' Central Organisations and the Minister of Finance. Pay and working conditions for other staff categories employed in the municipal/ county sector (about 420,000 full-time employees) are laid down by agreement between the staff organisations and the municipal/ county employers.

The rate of organisation is very high for employees in the municipal/county sector. The majority of the staff organisations in the municipal/county sector are affiliated with a joint organisation, KTO (the organisation of public servants and other employees in the municipal/county sector).

On the employer side there are 5 negotiating parties; the National Association of Municipal Authorities which negotiates for 252 municipalities; the National Association of Municipalities in the County of Copenhagen which negotiates on behalf of the municipalities in the metropolitan area except the municipalities of Copenhagen and Frederiksberg which negotiate separately.

The negotiations are co-ordinated among these five municipal/ county employer parties by a special central supervisory body, the Pay Board of the Municipal/County Authorities, which also coordinates pay and working conditions for employees in the municipal sector with those applied to employees in the state sector.

The negotiations with a view to renewal of the collective agreements in the municipal sector take place every second year in the spring as the agreements expire on 1 April. The negotiations take place in the form of general negotiations between the five municipal/county employer parties jointly, on the one part, and the KTO, on the other part. These general negotiations lay down the framework for the renewal of the collective agreements and other agreements with the individual employee organisations. Agreements are concluded - on the basis of the general negotiation result - between the municipal/county employers and the individual employee organisations.

The negotiations in 1989. In connection with the negotiations in 1989 certain general questions were removed from the negotiations. They were, in particular, the question of the duration of working time and the regulations scheme under which wages and salaries in the public sector are regulated in accordance with the development in wages and salaries on the private labour market. In connection with the conclusion of the collective agreements in 1987 these question had been agreed upon for a 4-year period i.e. until 1991.

The negotiations with the KTO concerning the general questions were initiated early in January 1989. Prior to that, these negotiations had been intensely prepared by the municipal employers. The municipal/county sector is undergoing radical changes right now and the tight economic situation has led to a need for significant changes in the system of collective and other agreements as known until now. Some of the planning of the negotiations had taken place in cooperation with the State and had resulted in a report (No. 1150) "Collective agreements and other agreements in the 1990s". It was the wish of the municipal/county employers that the negotiations should lead to a result within a very limited economic framework. At the same time the municipal/county employers wished to obtain improvements as regards the content of the agreements. One aspect was to maintain and further develop the right to individualise wages and salaries by decentralised determination thereof which was introduced in connection with the conclusion of the agreements in 1987. The municipal employers also wanted to introduce a general agreement concerning a rationalisation and streamlining of the system. Finally, they wanted to change the system so that the demarcation lines between the various occupational fields were broken down and uniform and more simple rules introduced.

The municipal/county organisations (KTO) wanted to obtain adjustments of pay rates, improvements in a number of social elements of the agreement system in the form of a general training and job security agreement, improvements in the rules concerning pay in connection with maternity leave, etc. and pension schemes for those groups who did not already have such schemes.

The negotiations in the municipal/county sector entered into a decisive phase towards the end of February and early in March when there was a breakthrough in the negotiations on the private labour market. Traditionally, the negotiations in the public sector have to a very high degree been dependent upon the outcome of the negotiations on the private labour market as the negotiations on the private labour market have formed the framework for the adjustment of wages and salaries in the public sector.

Agreement was reached between the municipal employer parties and the KTO about a general compromise within an overall framework for improvements of 2.5 per cent for the coming 2-year period until 1 April 1991. Out of this framework, 1 per cent is to be used for general increases in wages and salaries, 0.3 per cent for individual pay increases agreed upon in local negotiations, and 0.25 per cent for special demands in connection with subsequent negotiations with the individual employee organisations. The remaining part of the framework has, among other things, been used for the introduction of full pay in connection with maternity leave and the introduction of pension schemes for those groups which have not earlier been included in such schemes. A general framework agreement has been concluded concerning rationalisation and streamlining of the system and it has been agreed to start negotiations during the term of the agreements concerning the dismantling of demarcation lines between the vocational fields and concerning simplification of the system of collective and other agreements.

As a new thing, the compromise was reached in the municipal sector before a negotiation result had been obtained in the state sector. This framework of 2.5 per cent - which is estimated to be lower than that resulting from the renewal of the collective agreements in the private sector - also applied to the renewal of the collective agreements in the state sector.

At the present time final negotiations are taking place with a few staff organisations concerning the special demands. It seems that it will be possible to bring these negotiations to an end without industrial action being taken.

In addition, a Government representative referred to information contained in the written communication submitted by his Government regarding negotiations for collective agreements which took place in the Spring of 1989. The outcome of the negotiations had been very satisfactory from all points of view. New agreements had been negotiated on all the issues that were open to negotiation - first and foremost pay rates. In the private sector, the parties had, in complete agreement, made wide use of the services of the public conciliator. In the public sector most agreements had been negotiated by the parties themselves, normally without recourse to the conciliation services. The negotiation system had proved its effectiveness, all the more so because costly and devastating labour conflicts had been avoided. The system was able to cope with new economic circumstances that left room for only modest wage increases. The process had not been an easy one.

Referring to Case No. 1470, examined by the Committee on Freedom of Association, the speaker indicated that the Government had announced in March 1989 that it had comments to make on the conclusion drawn by that Committee; it had thus suggested that the Committee of Experts wait for these comments before examining application of the Convention. The Committee of Experts had drawn its own conclusions, based in part upon the conclusions reached by the Committee on Freedom of Association, before the Government had made additional comments. The Government therefore thought that the Committee of Experts' comments had been formulated on incomplete grounds. The Committee on Freedom of Association had itself recommended, in its May 1989 Report, that the last communication from the Government should be transmitted to the Committee of Experts. The situation addressed by Case No. 1470, and the Danish International Ships' Register (DIS) it involved, was complex and had not been adequately considered; the Government believed that the present Committee should not draw any conclusions concerning this case.

The Government representative explained that in 1987 the Danish shipping industry (the country's third largest export industry) was seeing an increasing number of ships flagging out to flags of convenience. If the industry were to have disappeared, the country would have encountered severe economic problems and many Danish seafarers would have been unemployed. The Government saw no alternative to establishing a realistic alternative, that is, the Danish International Ships' Register. Part of the package was that seafarers on DIS ships were free from Danish tax, an important change, since in Denmark more than half of total income was paid in direct taxes. One result of that change was the absolute necessity of concluding new collective agreements for persons employed on DIS ships; if not, their income would have doubled, thus diverging from the wages which had been agreed. The matter was urgent; the new register had to come into effect quickly to prevent further flagging out. Another consequence was that to make the new register efficient, the employers had to have the possiblity of concluding different agreements with different unions on the same category of labour. In international shipping, labour was employed from all over the world. There was nothing illegitimate in stating that unions from labour-supplying countries were also entitled to make agreements for their members, as they had in fact done. The Government did not understand the Danish unions' attitude towards these unions.

The results since the law was passed had been good. Many ships had flagged home to the Danish flag and the Danish maritime fleet had increased by 13 per cent, compared to 1 per cent world-wide. Employment on Danish ships had been stable. Work on Danish ships was now covered by new net wage agreements concluded between the ship owners and the unions. Agreements with Danish unions included, where relevant, a clause for ships with mixed crews, specifying that persons with equal qualifications should not be hired on conditions other than those in the said agreement, that is, as if they were covered by the agreement. It had to be stressed that everyone employed on DIS ships was covered, apart from agreements, by Danish legislation with its high level of social protection.

Everyone could agree that this case raised extremely interesting questions for discussion. However, the Danish case did not form a sufficient basis for such a discussion. It had not been adequately considered and the principal issue of international ships' registers should be dealt with in a general way, and not on the basis of a single case. There was a general trand towards such registers; on 31 May 1989, the European Economic Commission had put forward a proposal on a European Ships' Register, along the same lines as the DIS, to the Council of Ministers. His Government thought that the present Committee should not draw specific conclusions based on Case No. 1470, but instead should state its wish that the issue of international ships' registers be discussed in some appropriate forum. The forum might be the Committee of Experts, which might even carry out a special survey, or perhaps the Joint Maritime Commission under ILO auspices. After such a general discussion, the issue could be returned to next year, when one of the maritime Conventions (the Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147)) would be under discussion in the context of the general survey to be prepared by the Committee of Experts. The representative stated that his Government would attempt to resume domestic discussions on the issue on a tripartite or bipartite basis, as appropriate.

The Worker member of Denmark noted that the Government was being brought before this Committee in several cases involving some of the ILO's key Conventions on basic human rights (Conventions Nos. 87, 98 and 111). With regard to the present Convention, since the present Government came to power in 1982, it had made a number of legislative interventions concerning both the right to strike and existing collective agreements. Those interventions had led to five complaints brought before the Committee on Freedom of Association. The most serious intervention was adopted, in June 1988, of Act No. 408 on the Danish International Ships' Register, which established a continuing legal violation of the above-mentioned Conventions. The complaint regarding the Danish International Ships' Register was important, not only nationally, but for all seafaring nations. The case had farreaching consequences; the speaker supposed that any transnational trade, such as perhaps haulage contractors, could be seen as requiring an international register to address competition from abroad. Honest, free competition was what was needed. The present Committee should reject such international registers, since they were an artifical means of gaining a competitive advantage at the cost of other countries. When similar registers were established to retain competitiveness, it became a vicious spiral. The real losers were the workers and those governments and employers who retained a sense of decency.

Citing the text of section 10 of Act No. 408 (reproduced on page 379 of the Committee of Experts' report), the speaker stated that under subsection (1), shipowners could unilaterally evade their obligations under an existing collective agreement by simply changing the ships' register. This provision constituted a flagrant violations of Conventions Nos. 87 and 98, as both the Committee on Freedom of Association and the Committee of Experts had noted. Because of the operation of the provisions of subsections (2) and (3) of section 10, the workers, with their negotiating position totally undermined, then had to renegotiate their agreements with the shipowners. To understand the situation fully, general Danish labour law had to be taken into account. It had been illegal to discriminate against workers on the basis of colour, race or nationality since 1911, when the industrial court had ruled that an employer had to pay the same wages and generally comply with the terms of an agreement in respect of all persons performing work covered by that agreement. This had enabled Denmark to ratify Convention No. 111 in 1960 without amending any labour law. Thus, foreign workers working alonside Danish seafarers had the same rights. Subsections (2) and (3) of section 10 of Act No. 408 had removed the possibility of maintaining this fair and equitable state of the law. With these provisions, the Danish Government had created two classes of workers. By contrast, such discriminatory provisions did not exist in the Norwegian ships' register.

Recalling the Government representative's reference to a crisis in the shipping trade as justifying these measures, the speaker asked for more information, especially since several Danish shipping companies had earned record profits in 1988. He wondered whether the Government had considered means other than these to stop flagging out and, if so, why the alternatives were rejected. He noted that the tax exemptions granted in legislation adopted parallel to Act No. 408 had reduced shipowners' crew costs by more than 40 per cent. Surely such a hefty subsidy should have been fully adequate to meet any alleged crisis. He challenged the statement made by the Government in correspondence to the ILO in which it had said that the agreements would have ceased to be in operation in any event because more and more ships would have been flagging out. This was incorrect because irrespective of flagging out, an agreement continued to run for its full duration under Danish labour law. He also disagreed with the Government's statement that the parties had agreed in practice that mixed crews should be treated in the same way. In all but two cases, the shipowners had rejected agreement to this effect. The Government had triumphantly stressed that new agreements had replaced the old ones; in fact, the old agreements had been removed by law and the workers had no choice but to conclude new agreements providing for considerably inferior conditions (reduced crews and changed working time). It was also important to note that not all cancelled agreements had been replaced by new agreements. The shipowners were under no obligation to enter into collective agreements. In practice, several seafarers were working on Danish ships without being covered by collective agreements. Despite the Government arguing that the Act would create more jobs, employment had fallen by 10 per cent since the new register was established, and no increase was anticipated.

In relation to section 10 of the Act, the Government had stated that a criterion of residency and not nationality had been applied in subsections (2) and (3). Fortunately, both the Committee on Freedom of Association and the Committee of Experts had seen through this ploy, the speaker said. It was important to know that even when a foreign seafarer had been working on Danish ships for several years, the seafarer was not deemed to be a resident of Denmark. He noted that the Government had also tried, in correspondence with the ILO, to maintain that subsections (2) and (3) of section 10 solved a problem of organisations competing to conclude agreements. The Government had said it could not accept Danish organisations in the seafaring trade having exclusive competence to negotiate agreements on Danish ships. These arguments had been invented for the occasion, the speaker said. No one was demanding that only Danish organisations should have the right to conclude these agreements; so far, no foreign organisation had wanted to negotiate an agreement, because their members had been secured the same rights as Danes under Danish agreements.

The speaker wanted to know why the Government had not sought the legal opinion of the Office while the Act was being drafted. A large minority in Parliament had called for this and yet the Government had rejected the proposal.

In its complaint concerning the Act, the Danish Federation of Trade Unions had requested that direct contacts be established. As in previous cases, the speaker said that the Government had rejected this suggestion. He cited the Government's written reply of January 1989, to the effect that the case had been "sufficiently elucidated so as to eliminate any doubts in relation to the basis upon which it can be evaluated." The Government had stated that it thus found it "unnecessary to have direct contacts between the ILO and the parties to this case." With reference to this, the speaker could not understand that the Government representative now was of the opinion that further consideration was needed before the present Committee could draw any conclusions. The speaker wished to know how the Government intended to comply with the recommendations made by the Committee on Freedom of Association, which had been endorsed by the Committee of Experts. Those bodies had not merely stated that the Convention had been violated; they had urged the Government to amend Act No. 408. He asked specifically whether the Government intended to repeal the discriminatory rules in subsections (2) and (3) of section 10 of that Act. If the Government disagreed with the supervisory bodies' analysis in this case, the speaker wondered how it would attempt to resolve the situation. Would it, he asked, request that a commission of inquiry be set up? Replies were needed from the Government on these questions, he concluded.

The Employer member of Denmark noted that the Government had invited the present Committee to engage in a more general discussion of problems arising out of international ships' registers, going beyond the Danish International Ships' Register alone. The Shipowners' Association would be prompted to take an active part in such a discussion. The allegation made by the Worker member of Denmark, that collective agreements were set up in a discriminatory way, was absolutely untrue. In the collective agreements in question, it was stated clearly that with respect to skill, no discrimination at all could take place. The Danish Shipowners' Association had concluded new collective agreements with all Danish unions concerning work on board ships registered in the International Ships' Register. All the agreements had been concluded in a peaceful way; the unions had been free not to conclude any collective agreements at all. That would have meant that the international register never would have opened and flagging out would have continued. He disagreed with the statement made by the Worker member of Denmark concerning employment. It had stabilised on the same level as last year, and the employers had hoped that it would increase. Almost 90 per cent of all work on Danish ships was carried out by Danish citizens. In the negotiations, there had been good, serious discussion with all the unions, including the Danish Metal Workers, to which general purpose crew members belonged. The agreements were concluded with all the affiliated unions of the Federation of Danish Trade Unions, not with the Federation itself. The Danish employers' requests for discussions with the Federation had gone without reply. The new agreements did not provide for considerably inferior conditions, the speaker said; they gave all seafarers improved working conditions and guaranteed them a higher real income than in the past.

Moreover, the setting up of an international register could not, in his view, be seen as interference in existing collective agreements. The old agreements were still in force for all ships in the ordinary ships' register. The new international register never could have opened had it not been for the tax exemption for all seafarers and the ability to conclude new agreements with the trade unions based on the possibility of concluding collective agreements with foreign seafarers. The international register was a positive alternative to flagging out, not only out of the national social security system but also out of national collective agreements. There were other second registers in Europe, and the Commission of the European Community had proposed a register along the same lines as the Danish register. The Danish employers were quite willing to continue discussions to try to convince the Danish trade unions that the DIS had so far been a success.

Another Worker member of Denmark requested the Government representative to state why the Danish trade unions had not been invited to take part in negotiations on the draft legislation on the ships' register. The Bill had been introduced into Parliament in December 1987 and approved six or seven months later. There had been ample time for negotiation of the labour market participants. including the unions. The speaker thought that direct contacts would help all concerned to consider the issue further. The government had stated to the ILO in a letter of January 1989 that the case was sufficiently elucidated, thus obviating a need for further discussion; the Government representative had now told the present Committee that the case was complex, requiring more information to be on the table to permit discussion. The speaker asked the Government to indicate whether it was now in a position to accept or to request direct contacts involving the social partners, which he thought would be of assistance. The Danish legislation needed to be brought into conformity with the ILO's minimum standards, and steps towards achieving that could be made by direct contacts.

The Worker member of Norway, speaking as well, on behalf of the national trade unions of Denmark, Finland and Sweden, noted that the legal concept of the Danish International Ships' register under Act No. 408, had been dealt with by the Committee of Experts as relating both to Conventions No. 98 and 111. The Committee of Experts had called upon Denmark to amend the Act so as to ensure that all seafarers employed on Danish internationally registered ships could benefit from collective bargaining engaged in by representatives of their own choosing. After quoting the text of section 10 of the Act in extenso, the speaker listed three consequences of the legal provisions which he thought brought the legal concept of the Danish International Ships' Register into conflict with the principles of Convention No. 98. In the first place, seafarers who were non-resident in Denmark and employed on board Danish ships could not be covered by collective agreements concluded by Danish trade unions, even though they were members thereof. Secondly, the Act permitted the conclusion of separate collective agreements, with two or more foreign trade union organisations being represented on board the same Danish ship. These collective agreements could provide different wages and other employment conditions for seafarers due to their national origin, while the seafarers are serving at the same time on equal jobs on board ship. Thirdly, under Act No. 408, Danish trade unions could bargain on behalf of non-resident, non-citizens only if the seafarers concerned were ensured national treatment in Denmark by virtue of an international treaty. These consequences showed that Denmark was not fulfilling the obligations it assumed when it ratified Convention No. 98. The legal concept in Act No. 408 brought about discrimination on the basis of national origin. That meant in fact discrimination based on race. There was a responsibility to react with all legal means to eliminate all forms of discrimination based on race on board Danish ships and ships of all other ILO member States. The present Committee should not only take note of the report of the Committee of Experts in this case for information or notice. A serious disagreement existed between the Government, on the one hand and the Danish trade unions and the Committee of Experts on the other hand, as to the correct legal interpretation of the relevant Conventions, among them Convention No. 98, in relation to section 10 of the Act. The speedy internationalisation of the shipping industry could confront the present Committee with several new cases of this type in the future. Acts on international ship registry had already been introduced in the United Kingdom (Isle of Man), France (Kerguelen Island) and Norway. Those enactments had chosen quite different legal concepts as regards seafarers' right to organise. If the draft on international ships' registry proposed by the Commission of the European Community were enforced, there would be discrimination against seafarers on the basis of national origin in respect of the right to organise and engage in collective bargaining, which would be in flagrant contradiction to Convention No. 98.

This case was important in light of the development of international ship registers elsewhere in Europe. This fact made it all the more regrettable that the possibility of direct contacts had been rejected by the Government. The dispute relating to Convention No. 98 and Denmark was legally clear-cut and could easily and quickly be settled by an advisory opinion sought from the International Court of Justice. On behalf of the national unions of Denmark, Finland, Norway and Sweden, he proposed that the Conference as a whole authorise the ILO Governing Body, in accordance with article 37 of the ILO Constitution and article 9, paragraphs 2 and 3, of the agreement between the ILO and the United Nations, to request the International Court of Justice to give a legal advisory opinion in this case.

The Employer member of Sweden thought that a lot of irrelevant material had been brought into the discussion of this case. When the report of the Committee on Freedom of Association had come before the Governing Body, criticism had been voiced against the conclusions in the case. Over-interpretation had taken place. In addition, the speaker expressed surprise that the Committee of Experts had included this case in its report this year. That Committee had shown undue haste, especially given the fact that it had not had the chance to consider the Government's most recent communication, even though the Committee on Freedom of Association had asked the Committee of Experts to do so. He suspected that the machinery was being used for internal political fights. The idea of international ships' register should, however, be subject to more general examination at a proper time and in an appropriate forum. That would be the most satisfactory conclusion the present Committee could reach.

The Worker member of the Netherlands found an interesting element of the debate in the reference made to the proposal for a European ships' register. He wished to challenge the view of the Government that, foreseeing establishment of that register, it would be unwise for the present Committee to express itself on this case On the contrary, he suggested, it was very important for this Committee to state its position as clearly as possible in order to give the European Commission guidance on ILO standards and their importance. Any enlightening contribution the present Committee might give to the Commission would be very important.

The Employer member of the United Kingdom, referring to Case No. 1470 concerning the Danish International Ship's Register, recalled the special rules provided in section 10 of Act No. 408 applicable to collective agreements for ships registered on the register. It seemed to him reasonable for the Danish Government to have concluded that existing agreements should not be applicable to an entirely new register, which was subject to profoundly different conditions, namely the tax regime. Further, he feared that the Danish unions were really claiming the right to decide who should represent non-Danish seafarers serving on those ships. That would not be reasonable and would effectively remove the right of non-Danish seafarers to choose their own representatives. That could lead to a direct conflict with the provisions of the Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147). Wherever possible, wages should be fixed by negotiation in the country of the seafarer's domicile; he wondered how that could be complied with if non-Danish seafarers were to be represented by Danish unions. As to the fear that the provisions on the DIS could be extended to land transport, he thought that quite unlikely. For the ILO's entire existence, the maritime industry had justified separate machinery owing to its unique circumstances. The Danish Government had suggested that international registers could perhaps be discussed in the Joint Maritime Commission, and the speaker thought that might well be appropriate. He pointed out that a meeting of the Joint Maritime Commission was scheduled in the next biennium, starting in 1990. The Danish Government wished to postpone a conclusion in this case to provide the opportunity for further comments and discussion elsewhere. In the circumstances, where the case was so clearly arguable, that seemed to the speaker to be an entirely reasonable proposition which the present Committee should accept. This was all the more so since Convention No. 147, of obvious relevance, would be debated in detail during the next session of this present Committee.

The Worker member of Pakistan associated himself with the statements made by the various Worker members who had spoken. He stated that in the developing countries, workers looked to the developed countries to set better standards of implementation for their welfare. The argument had been advanced that workers not of a particular country, on a particular ship, should be left to their own fate. But experience had shown that workers from labour-sending countries could not always defend themselves. If they were unionised in the receiving country, their unions were able to safeguard their interest more effectively. There could be discrimination in having different standards for the two sets of workers involved, one for the Third World countries and one for the developed world. There would be discrimination and flagrant violations of international labour standards if wages and working conditions on the same ship were different for workers from developed countries and workers from developing countries. He therefore supported the stance taken by the Danish workers as to the contradictions between the provisions introduced and the Convention. The Committee on Freedom of Association had also upheld the principle that international labour standards are indivisible, whether they relate to Third World countries or to the industrialised world.

The Workers' members thought that this matter should not simply be referred to another forum; the problems concerning seafarers were posed not only for Denmark but also for other countries and had to be discussed in the present Committee. Next year, when the Committee of Experts' general survey on the Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147) would be discussed in relation to this special category of workers, the general question as well as the specific matter involving Denmark would have to be discussed. The Workers' members thought that it would not be reasonable, in the case of a country like Denmark, a democratic country with a tradition of labour relations and collective agreements, for a hard and intransigent stance to be taken instead of a position maintaining dialogue and consultations in order to arrive at solutions; this would moreover prove that ILO Conventions were useful not only for developing countries but for developed countries as well.

The Workers' members were aware of serious problems regarding maritime matters, not only in Denmark but in many other countries as well; there was, in particular, a problem of competitiveness. The Workers' members hoped that the Office and the European Commission would examine the contents of a draft EEC Directive to evaluate its conformity with Conventions Nos. 87, 98, 111 and 147. This would make it possible to determine the action to be taken; in the case of Denmark, it lay in two fields. First, it involved knowing whether or not the legislation needed to be modified, and to what extent, because there were divergent and contradictory that had to be overcome. Second, it involved knowing whether there were shortcomings in regard to collective bargaining and studying the difficulties and how they could be overcome and avoided in the future. It would be very unfortunate to have the Government, employers and workers engage in a dialogue among the deaf. The Workers' members hoped to see recognition, by both Denmark and the European Commission, of the need for the assistance of the Office. They had hoped that it would be possible to overcome the difficulties, and because of this the present Committee should not be content with waiting for replies or reports; it should act.

The Employers' members thought it was important that the parties directly involved had been the first to state their view in this case. Addressing the general question, the Employers' members always favoured the principle of free collective bargaining, which should be pursued in line with national conditions. The national conditions in Denmark had been explained extensively by the Government in the written information it had supplied. The Committee of Experts has set a high standard in requiring that the autonomy of the parties to collective bargaining could be waived only for compelling reasons of national economic interest. The Employers' members did not see that standard in the Convention, but it was the standard used by the Committee of Experts to be considered in looking at the ships' register. The Employers' members saw national economic interests involved here which were of the highest possible importance. Secondary or international registers existed in many countries with a traditional shipping industry; there had been considerable national justification for this. The relationship between the establishment of new international registers and an increase in flagging out to so-called flags of convenience could not be doubted. Flagging out had meant that the national legislation on labour matters, social security and safety at sea was no longer applicable. With the Danish register, however, the only consequence was that existing collective agreements had to be changed, while all the other legislation on safety and so forth remained in force. New collective bargaining could still take place and this had in fact occurred. The Committee of Experts had always said that in any interference in collective bargaining, workers' standards of living should be guaranteed; in this situation, legislation exempting crews on ships listed on the new ships' register from taxation on their wages acted as a kind of compensation to ensure their standard of living. Mention had been made of a distinction made between foreigners and nationals in relation to new collective agreements, with the suggestion that this might violate Convention No. 111. Without getting into discussion on that question, the Employers' members wished to point out that in no case was nationality a criterion under that Convention. They did however think that the broader questions involved should be taken up at a later time. The Government had offered to have such a discussion next year. The Committee of Experts had requested the Government to report on the results of collective bargaining, and it had complied fully with that request. The question of the ships' register, which was a difficult problem, was being discussed for the first time this year. The Employers' did not wish to draw any conclusions on the substance and did not want to refer to the question of discrimination in the conclusions in this case. They preferred to come back to the matter at a later time when it might be possible to find a solutions that would reflect a consensus, which was not possible at the moment.

The Worker member of Liberia observed that countries in the Third World saw flags of convenience as an industry which could generate badly needed employment. Notwithstanding this, they would very much like to have their nationals treated in keeping with the strict application of ILO Conventions with respect to equal treatment at work. These workers were not boarding ships only as labourers; Liberia trained young men in a maritime insitute who emerged with some measure of competence. But with such serious unemployment problems in the country, there could be little bargaining power in collective negotiations with shipowners. He submitted, however, that shipowners could not contract with Liberian seafarers with a view to violating the Convention if working conditions under other contracts were more favourable. Treatment of Liberian seafarers should be commensurate with treatment given to the shipowner's own nationals.

The Government representative declared this had been an extremely interesting discussion. If nothing else, it had given ample evidence that the case contained many issues deserving further dialogue. He thought that all the disagreement on the various points stemmed back to one basic disagreement, namely, what the alternative to establishing the DIS had been. The trade unions considered the alternative as being the status quo, but the Government firmly believed that this would have led to a complete flagging out to flags of convenience. The signs of this could be read in the new proposal from the EEC Commission.

It had been said that the Government had repeatedly violated ILO Conventions and that an example should be set. He found that to be a queer statement, since the Government had invariably and unwaiveringly declared its intention to abide by ratified Conventions. It was quite something else to say, as in this case, that the matter was more complex than it seemed at first glance. The Government wished to discuss problems to find a solution. The Government had never been convinced that a direct contacts mission in this case would solve the problems. The facts in the case were not difficult. In the Government's view, this was not essentially a Danish case at all, so all in all the Government was still not convinced that a mission to Denmark would be adequate. As to the question of discrimination which had been touched upon, the Government did not understand how a criterion of residence could be discriminatory. The speaker recalled that work on DIS ships was now covered by collective agreements concluded with the respective unions. On this background, the present Committee might foresee further dialogue, partly on a general level under ILO auspices and partly at a domestic level prior to the 1990 International Labour Conference.

The Workers' members were of the view that the issue involved eliminating confrontation and getting rid of the divergencies which existed between the Government on the one hand and the Committee on Freedom of Association and the present Committee on the other hand. They recalled that Denmark was not the only country at stake in relation to this issue, which also concerned the Common Market. Recalling the example of the Netherlands in which direct contacts had contributed to clarifying certain issues, the Workers' members stated that it would be very regrettable to have to conclude that an industrialised country never had need of assistance or of direct contacts.

The Workers' members wished to recall that not only the Danish Government, but also the Danish trade unions, had presented information to the present Committee. The Workers' members also stressed the fact that it was not merely a matter of taking stock; the Office should find a way of examining the matter in the context of maritime questions in general and of the draft EEC directive. Finally, it was not enough to provide information; it was also necessary to act and, in this respect, the Workers' members held firm in proposing Office assistance to the Danish Government in the name of the present Committee, even though the Government representative was not in a position to reply at this time to that suggestion.

The Employers' members pointed out that the Employers as well as the Workers had contributed information to the discussion. The Employers' thought it necessary to have a careful and detailed discussion before drawing any conclusions of future action. They also disagreed with the proposal of direct contacts, since the questions involved here were not typical of the kind that could be solved in that way.

The Committee took note of the information supplied orally and in writing by the Government representative, as well as of the detailed discussion which had taken place. The Committee observed that the comments of the Committee of Experts had found divergencies between the legislation and the provisions of the Convention. It also noted the conclusions of the Commission on Freedom of Association in this connection. The Committee took due note of the assurances of constructive tripartite dialogue given by the Government representative. It requested the Government none the less to pay particular attention to the observations of the Committee of Experts in order to take them into account in developments concerning the legislation and practice in regard to collective bargaining. The Committee expressed the hope that the Government would continue to provide information on developments in the situation and that progress would be achieved in the application of the Convention.

The Workers' members wished to recall that not only the Danish Government, but also the Danish trade unions, had presented information to the present Committee. The Workers' members also stressed the fact that it was not merely a matter of taking stock; the Office should find a way of examining the matter in the context of maritime questions in general and of the draft EEC directive. Finally, it was not enough to provide information; it was also necessary to act and, in this respect, the Workers' members held firm in proposing Office assistance to the Danish Government in the name of the present Committee, even though the Government representative was not in a position to reply at this time to that suggestion.

The Employers' members pointed out that the Employers as well as the Workers had contributed information to the discussion. The Employers' thought it necessary to have a careful and detailed discussion before drawing any conclusions of future action. They also disagreed with the proposal of direct contacts, since the questions involved here were not typical of the kind that could be solved in that way.

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 4 of the Convention. In several of 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 Committee notes that the Government indicates in its report that this agreement has been most recently renewed for an indefinite period.

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 that the Government indicates that the agreement also states that seafarers not resident in Denmark working onboard DIS ships have the right to be members of several trade unions (i.e. both a Danish trade union, and a trade union in their home country) and that this enables the seafarers’ contracting parties to represent a seafarer not domiciled in Denmark or a foreign trade union in matters relating to the Danish legislation and assist seafarers without a Danish residence in relation to the Danish public authority. Additionally, the Government indicates that it has not received information that the collective agreements concerning wages and general working conditions on board Danish ships, regardless of whether they were concluded by Danish or foreign trade unions, were not at internationally acceptable levels.

In several of its previous comments, the Committee welcomed the agreements between the social partners, 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 had underlined section 10 of Act No. 408 which has 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 2008, out of a total of 9,594 seafarers on DIS ships, 5,317 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.

Collective bargaining rights of majority organizations. This issue again relates to the application of section 12 of the Conciliation Act and had been raised in several 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 several of its previous comments, the Committee had requested the Government to review the legislation, in consultation with the social partners, and to provide information on these consultations.

The Committee notes that the Government indicates in its report that, in the view of the Government, the rule on combining mediation proposals also takes into account the way in which the Danish employees’ and employers’ organizations wish things to be organized and that the Government will resubmit the issue of section 12 concerning the possibility of the public conciliator to combine mediation to the permanent ILO committee. While taking note of the Government’s arguments, the Committee recalls that it had stressed in several of its previous comments that section 12 of the Conciliation Act could, in some cases, have the result of excluding the most representative trade union organizations 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 resolve it. The Committee requests the Government to indicate any developments in this regard, including the results of the resubmission of this issue to the permanent ILO committee. 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.

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.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee takes note of 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.

The Committee notes the indications in the Government’s report that the framework agreement between the social partners – the agreements on mutual information, coordination and cooperation concerning DIS ships, concluded since 1997 – has been prolonged to 31 December 2007. The Government indicates that this prolongation has 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 indicates in its report that two unions representing seafarers of a lower rank have 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 has from 1 July 2006 been part of 3F.

The Government indicates that the agreements still deal with the conditions for seafarers and contain 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, as it had noted in its 2003 observation, that these agreements confirm the right to enter into collective agreements with foreign organizations, in accordance with Act No. 408, and that foreign organizations have a right to be represented in negotiations with shipowners/organizations of shipowners with a view to ensuring that a negotiated result is in accordance with an internationally accepted level in terms of international standards for pay and working conditions. The Danish contracting parties may also at request continue to represent a foreign organization.

According to the Government’s report, the 2004 agreement between the social partners and the attached protocol also imply a continuance of special provisions which ensure in greater detail that conclusion of a collective or individual agreement with foreign seafarers without Danish residence is at an internationally acceptable level. The 2004 protocol thus stipulates 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 can represent a foreign trade union, the 2004 protocol has been extended with a provision to the effect that foreign seafarers on board DIS ships may 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 have been incorporated in the agreement of 15 December 2005.

The Committee takes note of the Government’s indication that, if Denmark is to maintain a merchant fleet with quality ships that can compete internationally, there is a continuous need to ensure that DIS constantly constitutes an attractive and competitive ships’ register.

The Committee also takes 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 indicates that all Danish seafarers’ organizations agree that paragraph 10 of the DIS Act should be amended and that the contact committee agreement does not exist because of the DIS Act but, in spite of, the Act, and that it presupposes that participating unions accept the shipowners’ rights under the Act; it therefore cannot take the place of necessary amendments to the Act with a view to respecting Conventions Nos. 87 and 98. The Committee notes that 3F indicates that neither 3F nor RBF are part of the agreements and that, according to 3F, the present system privileges the number of unions and not their representativity.

The Committee welcomes 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 has referred, but observes that the legislative aspect of the matter has not been resolved and that two trade union organizations have again decided not to be bound by the new agreements. The Committee underlines that section 10 of Act No. 408 has 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 are 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 has been raised following the 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 has requested the Government to review the legislation, in consultation with the social partners, and to keep it informed of these consultations.

In its report, the Government indicates that the central organizations, LO and DA, have discussed the rules on the linking of agreements of different occupational sectors and are 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 is to offer independent assistance in connection with the renewal of collective agreements and recommend concessions which seem appropriate for a peaceful settlement of a dispute. According to the Government’s report, the opinion of the central organizations is underpinned by the fact that it is often a judge who exercises the function, that conciliators are not subject to instructions from the Government, and no financial considerations are taken in connection with submissions of compromise proposals. The Government indicates that the central organizations find that the conciliation service cannot be said to be an element in the general exercise of public powers. The Committee notes that, the Government adds in its report, that section 12 does not bar the social partners from negotiating and exerting their influence. All organizations negotiate the renewal of their own agreements and a compromise proposal cannot be made by the Public Conciliator until all bargaining possibilities have been exhausted. The individual member is guaranteed influence in that the compromise is sent out for ballot and the linking rule does not mean that the collective agreement will apply to the entire sector; it is thus not a matter of an erga omnes principle. The adoption of a compromise proposal does not mean that the agreements concluded lapse but, on the contrary, that they could be individually maintained. The rules serve the purpose of avoiding that a number of occupational fields will become involved in a dispute because a single field that constitutes a minority – maybe even a very small minority – is, for some reason or other, dissatisfied with the compromise result and has rejected the proposal. The Government stresses that the linking rule is a necessary element of the special organizational structure of the Danish labour market that is characterized by many different agreements in the same enterprise and for the same occupation. On the one hand, it is thus not a matter of a system based on industrial unions but, on the other hand, the agreements for the same occupational field are, typically, negotiated together and at the same time. It is 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 are not wished by any of the parties.

While taking note of the Government’s arguments, the Committee stresses 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 therefore 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.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation, which read as follows:

1. Article 4 of the Convention. The Committee had noted that section 10 of Act No. 408 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. The Committee therefore 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 has been raised following the examination by the Committee on Freedom of Association of Case No. 1971. This provision makes it possible for an overall draft settlement 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 requested the Government to review the legislation, in consultation with the social partners. According to the Government, the case had been dealt with by the "permanent ILO committee", and it will be taken up in this committee again once the social partners have completed their discussions. The Committee requests the Government to provide information in its next report on the contents of the discussions taking place between the social partners. It trusts that every effort will be made to fully ensure the collective bargaining rights of majority organizations.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee takes note of the comments made by the Danish Confederation of Trade Unions (LO) as well as the Government’s observations thereon.

1. Article 4 of the Convention. The comments and the Government’s reply concern section 10 of Act No. 408 of 23 June 1988 which sets up a Danish International Shipping Register (DIS). The Committee has been requesting since 1989 the amendment of this provision because it has the effect of prohibiting workers employed on ships sailing under the Danish flag who are not residents of Denmark from being represented in collective bargaining, if they so wish, by Danish trade unions of which they are members.

The Committee notes that according to the LO, the Government continues to avoid amending the Act and maintains that it is not in contravention of the Convention. The LO indicates that the Government considers that Denmark continues to meet its international obligations although it acknowledges that the Committee has been critical of the DIS. The LO cites to this effect a statement made by the responsible Minister in the Danish Parliament on 14 November 2003 according to which the previous and present Governments have both held the view that a decision on the DIS issue would have to be based on a broad discussion in the ILO of international or secondary registers, such as the DIS. The LO adds that, on that occasion, the Government also announced that it would launch a comparative study of the DIS and other international registers; this comparative study has now been completed and the Government has sent a memorandum to Parliament which contains information on conditions in ship registers in other countries. The LO points to the fact that no other ship register has provisions that correspond to section 10 of the Act.

The Committee takes note of the observations made by the Government on the above comments. The Government points out that: (1) the memorandum noted by LO concerning the comparative study of the DIS and other ship registers has provided Parliament with a detailed description of different national register schemes; (2) the discussion with the social partners on DIS has been and continuously is an agenda item of the regular tripartite meetings of the Danish ILO Committee; (3) the ILO will be kept informed of any development concerning the tripartite discussions on DIS; (4) the Danish Workers’ organizations have had during the years variable approaches on the issue of the DIS as well as the agreements which allow Danish trade unions to be present during negotiations between owners of ships sailing under the Danish flag and foreign trade unions in order to ensure that the results in respect of wages and other working conditions are at an internationally acceptable level (namely, the agreement on mutual information, coordination and cooperation concerning DIS ships and the framework agreement relating to the conclusion of collective agreements with foreign trade unions which, as noted by the Committee in its previous comments, entered into force on 1 March 2002 for a period of three years).

The Committee recalls that out of a total of 7,729 seafarers, 3,350 were foreigners as of September 2001, according to the figures previously presented by the Government. The Committee recalls from its earlier comments that the abovementioned agreements allowing Danish trade unions to be present during negotiations between owners of ships sailing under the Danish flag and foreign trade unions do not cover all relevant Danish unions as two of them had decided to no longer be parties to the agreements currently in force (the General Workers’ Union in Denmark/Seamen’s Union in Denmark and the Association of the Restaurant Business). The Committee observes moreover that the abovementioned agreements do not enable workers aboard ships sailing under the Danish flag who are not Danish residents to be represented by Danish trade unions even if they are affiliated to them; Danish trade unions can participate in the negotiations only in an observer capacity, while the terms and conditions of employment of the non-residents are determined through negotiations only with foreign trade unions.

In these circumstances, the Committee concludes that section 10 of Act No. 408 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. The Committee therefore 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. The Committee also requests the Government to provide in its next report the information requested by the Committee in its previous comments concerning the collective bargaining rights of majority organizations (see 2003 observation, 74th Session).

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the information provided in the Government’s report.

1.  Negotiating power of Danish trade unions of seafarers
in respect of seafarers employed aboard Danish flagships
and who are not residents of Denmark

This issue relates to section 10 of Act No. 408 - setting up a Danish international shipping register (DIS) - that grants negotiating powers to Danish trade unions of seafarers only in respect of Danish residents, thus excluding seafarers employed aboard Danish flagships and who are not residents of Denmark. In its previous comments, the Committee noted two agreements concluded between the national social partners: (1) the agreement on mutual information, coordination and cooperation concerning DIS ships; (2) the framework agreement relating to the conclusion of collective agreements with foreign trade unions and individual agreements concerning foreign seafarers from outside the European Union and the European Economic Area. These agreements confirmed the right of shipowners to negotiate collective agreements with foreign unions and the right of Danish trade unions to be represented at these negotiations in order to ensure that the results in respect of wages and other working conditions are at an internationally acceptable level. The Committee noted that these agreements appeared to promote the voluntary negotiation of terms and conditions of employment of seafarers employed aboard Danish flagships who are not residents of Denmark. The Committee requested information on the status of these agreements as well as on any measures taken or envisaged to bring section 10 into conformity with the existing practice and into full conformity with Article 4 of the Convention.

The Committee notes that the two agreements have been replaced by two new agreements - copies of which have been sent by the Government - based on the same principles and concluded for a period of three years as of 1 March 2002.

While the Committee welcomes the conclusion of the two new agreements mentioned by the Government, it notes that the legislative aspect of the matter has not been resolved yet. The Committee recalls that section 10 of Act No. 408 has the effect of restricting the scope of negotiable issues by the Danish trade unions, by excluding from their bargaining power seafarers working on Danish flagships who are not considered Danish residents. By the same token, these seafarers cannot freely choose the organization they wish to represent their interests in the collective-bargaining process. In these circumstances, the Committee requests once again the Government to indicate in its next report any measures taken or envisaged to bring section 10 of Act No. 408 into full 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 has been raised following the examination by the Committee on Freedom of Association of Case No. 1971. This provision makes it possible for an overall draft settlement 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 requested the Government to review the legislation, in consultation with the social partners. According to the Government, the case has been dealt with by the "permanent ILO committee", and it will be taken up in this committee again once the social partners have completed their discussions. The Committee requests the Government to provide information in its next report on the contents of the discussions taking place between the social partners. It trusts that every effort will be made to fully ensure the collective bargaining rights of majority organizations.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes with regret that the Government’s report has not been received. It must therefore repeat its previous observation, which read as follows:

1. The Committee had noted the information provided by the Government concerning the negotiation of terms and conditions of employment of foreign seafarers employed aboard Danish ships.

2. In its previous observation, in the context of concerns it had raised regarding section 10 of the Danish International Shipping Register Act (DIS Act) which limits the negotiating power of Danish trade union organizations to residents of Denmark, the Committee took note of the extension of an agreement between Danish shipping federations and seafarers’ organizations. This agreement secures the right of Danish unions to represent foreign seafarers for the purpose of collective bargaining in order to ensure that the agreements concluded meet an acceptable international level. The Government in its most recent communication cites developments in this regard, in particular the signing of a new two-year agreement on 13 September 1999 between the social partners. The Government states that this agreement confirms the fundamental principle that Danish labour organizations have a right to be represented at negotiations between Danish shipping companies and foreign organizations to ensure that the results of such negotiations regarding working and living conditions are at an internationally acceptable level. Pursuant to the agreement, a contact committee has been established to develop and extend cooperation between the parties. The Government also refers to a further agreement between the social partners entered into on 25 February 2000 concerning the establishment of collective agreements with foreign unions and individual agreements for foreign seafarers from outside the European Union, which clarifies what is meant by "an internationally acceptable level". The Government states further that the main organizations in the industry and the Government have discussed the issue of the collective agreement provisions in section 10 of the DIS Act, and have confirmed that a common understanding of the administration of the collective agreement provisions in the Act has been achieved through the above-noted agreements. The Committee notes with interest these agreements which appear to promote the voluntary negotiation of terms and conditions of employment of foreign seafarers employed aboard Danish ships. The Committee requests the Government to indicate in its next report the status of these agreements as well as any measures taken or envisaged to bring section 10 of the DIS Act into conformity with the existing practice and into full conformity with Article 4 of the Convention.

3. With respect to the Committee’s previous comments concerning the application of section 12 of the Conciliation Act, the Committee will address this matter when it receives the Government’s full report.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

1. The Committee notes the information provided by the Government concerning the negotiation of terms and conditions of employment of foreign seafarers employed aboard Danish ships.

2. In its previous observation, in the context of concerns it had raised regarding section 10 of the Danish International Shipping Register Act (DIS Act) which limits the negotiating power of Danish trade union organizations to residents of Denmark, the Committee took note of the extension of an agreement between Danish shipping federations and seafarers’ organizations. This agreement secures the right of Danish unions to represent foreign seafarers for the purpose of collective bargaining in order to ensure that the agreements concluded meet an acceptable international level. The Government in its most recent communication cites developments in this regard, in particular the signing of a new two-year agreement on 13 September 1999 between the social partners. The Government states that this agreement confirms the fundamental principle that Danish labour organizations have a right to be represented at negotiations between Danish shipping companies and foreign organizations to ensure that the results of such negotiations regarding working and living conditions are at an internationally acceptable level. Pursuant to the agreement, a contact committee has been established to develop and extend cooperation between the parties. The Government also refers to a further agreement between the social partners entered into on 25 February 2000 concerning the establishment of collective agreements with foreign unions and individual agreements for foreign seafarers from outside the European Union, which clarifies what is meant by "an internationally acceptable level". The Government states further that the main organizations in the industry and the Government have discussed the issue of the collective agreement provisions in section 10 of the DIS Act, and have confirmed that a common understanding of the administration of the collective agreement provisions in the Act has been achieved through the above-noted agreements. The Committee notes with interest these agreements which appear to promote the voluntary negotiation of terms and conditions of employment of foreign seafarers employed aboard Danish ships. The Committee requests the Government to indicate in its next report the status of these agreements as well as any measures taken or envisaged to bring section 10 of the DIS Act into conformity with the existing practice and into full conformity with Article 4 of the Convention.

3. With respect to the Committee’s previous comments concerning the application of section 12 of the Conciliation Act, the Committee will address this matter when it receives the Government’s full report.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

1.  The Committee notes the information provided by the Government concerning the negotiation of terms and conditions of employment of foreign seafarers employed aboard Danish ships.

2.  In its previous observation, in the context of concerns it had raised regarding section 10 of the Danish International Shipping Register Act (DIS Act) which limits the negotiating power of Danish trade union organizations to residents of Denmark, the Committee took note of the extension of an agreement between Danish shipping federations and seafarers’ organizations. This agreement secures the right of Danish unions to represent foreign seafarers for the purpose of collective bargaining in order to ensure that the agreements concluded meet an acceptable international level. The Government in its most recent communication cites developments in this regard, in particular the signing of a new two-year agreement on 13 September 1999 between the social partners. The Government states that this agreement confirms the fundamental principle that Danish labour organizations have a right to be represented at negotiations between Danish shipping companies and foreign organizations to ensure that the results of such negotiations regarding working and living conditions are at an internationally acceptable level. Pursuant to the agreement, a contact committee has been established to develop and extend cooperation between the parties. The Government also refers to a further agreement between the social partners entered into on 25 February 2000 concerning the establishment of collective agreements with foreign unions and individual agreements for foreign seafarers from outside the European Union, which clarifies what is meant by "an internationally acceptable level". The Government states further that the main organizations in the industry and the Government have discussed the issue of the collective agreement provisions in section 10 of the DIS Act, and have confirmed that a common understanding of the administration of the collective agreement provisions in the Act has been achieved through the above-noted agreements. The Committee notes with interest these agreements which appear to promote the voluntary negotiation of terms and conditions of employment of foreign seafarers employed aboard Danish ships. The Committee requests the Government to indicate in its next report the status of these agreements as well as any measures taken or envisaged to bring section 10 of the DIS Act into conformity with the existing practice and into full conformity with Article 4 of the Convention.

3.  With respect to the Committee’s previous comments concerning the application of section 12 of the Conciliation Act, the Committee will address this matter when it receives the Government’s full report which is due in 2001.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the information supplied by the Government in its report. It also notes the conclusions of the Committee on Freedom of Association in Case No. 1971 (see 317th Report, paragraphs 1-61, approved by the Governing Body at its June 1999 session).

1. In its previous comments, the Committee had noted that section 10 of Act No. 408 of 1988 limited the negotiating power of the Danish trade union organization to persons who were considered to be residents of Denmark, and expressed regret that this section of the Act did not aim at encouraging and promoting voluntary negotiations between employers' and workers' organizations, and at allowing workers who were employed abroad Danish ships, but who were not residents of Denmark, to join the organization of their own choosing to defend their interest. The Government states in its report that the two-year agreement concluded in March 1997, between three Danish shipping federations and seafarers' organizations concerning the coverage of collective agreements in relation to foreign seafarers, has been extended. This agreement secures the right of Danish unions to represent for the purposes of collective bargaining foreign seafarers in order to make sure that the agreements concluded reach an acceptable international level. The Committee takes due note of this development which appears to promote the voluntary negotiation of terms and conditions of employment of foreign seafarers employed aboard Danish ships. The Committee requests the Government to indicate in its next report the status of this agreement as well as any measures taken or envisaged to bring section 10 of Act No. 408 into full conformity with Article 4 of the Convention.

2. The Committee notes that one of the issues raised before the Committee on Freedom of Association in Case No. 1971 was the application of section 12 of the Conciliation Act which makes it possible for an overall draft settlement 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 this regard, the Committee would request the Government to review the legislation, in consultation with the social partners. The Committee requests the Government to keep it informed of any developments in this regard.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the Government's report. Furthermore, the Committee notes that in a communication of 19 June 1996, the Danish Confederation of Professional Associations (AC) stated that it had reached an agreement with the Government relating to the job offer scheme for unemployed persons participating in training programmes, an issue which in fact had already been raised by the AC before the Committee.

1. In its previous comments, the Committee had noted that section 10 of Act No. 408 of 1988 limited the negotiating power of the Danish trade union organization to persons who were considered to be residents of Denmark, or who by virtue of international obligations were to be put on an equal footing with Danish citizens. It expressed regret that this section of the Act did not aim at encouraging and promoting voluntary negotiation between employers' and workers' organizations, and at allowing workers who were employed aboard Danish ships, but who were not residents of Denmark, to join the organization of their own choosing to defend their interests. The Government indicates in its report that shipowners and a number of organizations of seafarers have concluded an agreement concerning the coverage of collective agreements in relation to foreign seafarers. The Government emphasizes the need to carry out a study and to have a broad discussion in the ILO on international registers or second registers. The Government is asked once again to indicate in its next report any measures taken or contemplated to bring section 10 of the Act into full conformity, in this respect, with Article 4 of the Convention.

2. Concerning the issues raised before the Committee on Freedom of Association in Case No. 1725, and the comments of the Danish Union of Journalists in relation to the extension of an agreement to the entire sector of activity contrary to the views of the organization representing most of the workers in the category covered by the extended agreement, the Committee notes the Government's intention to present a Bill to the next parliamentary session in this regard. The Committee notes that according to the Government's report, in the few fields which had not been able to negotiate a new agreement in 1997, a compromise was reached by the public conciliator after having consulted the parties. The Committee hopes that the legislation will be amended so as to bring it into full conformity with Article 4.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee takes note of the Government's report as well as the observations made by the Danish Union of Journalists (DJ) dated 22 November 1994 and 14 November 1995, and by the Danish Confederation of Professional Associations (AC) dated 3 August and 8 December 1994 and 16 November 1995. It further notes the conclusions of the Committee on Freedom of Association in Case No. 1725 (292nd Report, paragraphs 197 to 229) and in Case No. 1641 (294th Report, paragraphs 39 to 77).

1. In its previous comments, the Committee had noted that section 10 of Act No. 408 of 1988 limited the negotiating power of the Danish trade union organization to persons who were considered to be residents of Denmark, or who by virtue of international obligations were to be put on an equal footing with Danish citizens. It expressed regret that this section of the Act did not aim at encouraging and promoting voluntary negotiation between employers' and workers' organizations, and at allowing workers who were employed aboard Danish ships, but who were not residents of Denmark, to join the organization of their own choosing to defend their interests. The Government is asked once again to indicate in its next report any measures taken or contemplated to bring section 10 of the Act into full conformity, in this respect, with Article 4 of the Convention.

2. Concerning the issues raised in Case No. 1725, and the comments of the Danish Union of Journalists in relation to the extension of an agreement to the entire sector of activity contrary to the views of the organization representing most of the workers in the category covered by the extended agreement, the Committee notes the Government's intention to present a Bill to the next parliamentary session in this regard. It is essential that the legislation is amended at an early date so as to bring it into full conformity with Article 4.

3. The Committee notes the observations of the Danish Confederation of Professional Associations (AC) relating to the job offer scheme for unemployed persons participating in training programmes. This matter has already been examined by the Committee on Freedom of Association in Case No. 1641 which decided that the case did not call for further examination. The AC raises a number of reasons for its disagreement with this, all of which were taken into account by the Committee on Freedom of Association prior to the formulation of its conclusions. The present Committee therefore sees no reason to reopen the examination of the substantive elements in this case upon which the Committee on Freedom of Association has reached final conclusions.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the information supplied by the Government in its report.

1. With reference to its previous comments relating to restrictions on free collective bargaining and fixing of wage rates, the Committee notes with interest that in 1991, collective agreements were renewed in the private and public sectors, where the parties agreed on average wage increases of 4 per cent and 2.7 per cent respectively. Similarly, collective agreements were renewed in 1993 which provided for average wage increases of 4 per cent and 2.5 per cent, respectively, in the private and public sectors.

2. The Committee recalls that under section 10 of Act No. 408 of 1988 which establishes the Danish International Ships' Register (DIS), collective agreements concluded by Danish trade unions apply only to persons considered as residents of Denmark. The Committee had considered that this provision was not in conformity with Article 4 of Convention No. 98 and Articles 2, 3 and 10 of Convention No. 87, since it prevented Danish trade unions from concluding collective agreements on behalf of other seafarers employed aboard Danish ships, and had requested the Government to hold further constructive discussions on this subject with the organizations involved and to provide statistical data on this issue.

The Government states that it has examined whether the most representative organizations of employers and workers wished to continue such discussions but that these organizations have indicated that, for the time being, there was no need to hold a meeting about this matter since they were awaiting the forthcoming general discussions on matters relating to international shipping registers at the next Maritime Conference in the ILO. The Government endorses the view that there is no basis for continuing discussions for the time being at the national level as the Danish deliberations in this field will depend upon the outcome of the discussions within the framework of the ILO.

While noting the above information, the Committee remains of the view that section 10 of Act No. 408 of 1988 does not aim at encouraging and promoting voluntary negotiation between employers' and workers' organizations, nor at allowing workers who are employed aboard Danish ships but who are not residents of Denmark, to join the organizations of their own choosing to defend their interests, free from interference by the public authorities. The Committee is reinforced in this view by the statistical information provided by the Government according to which a total number of 606 merchant ships were registered under Danish colours on 30 June 1993, out of which 469 ships were registered in the Danish International Ships' Register (DIS). The DIS thus accounts for 77 per cent of the merchant fleet in terms of the number of ships. As regards the number and percentages of Danish and foreign seafarers concerned, Danish seafarers from Denmark and the Faroe Islands accounted for 72 per cent of the seafarers on board DIS-registered ships as at 31 March 1993. These figures imply that, in practice, section 10 of Act No. 408 of 1988 excludes a relatively large number of seafarers employed on Danish-flag ships but who are not residents of Denmark from the coverage of collective agreements concluded by Danish trade unions.

Nevertheless, in view of the fact that the next Maritime Conference in the ILO will deal with the issues relating to international shipping registers and that the Danish Government's approach to the problems in this field will depend upon the outcome of the ensuing discussions within the framework of the ILO, the Committee requests the Government to keep it informed of the outcome of such discussions and their bearing on the Danish deliberations in this field.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee notes the information provided by the Government in its report and its communication of 6 March 1991, the extensive debate before the Committee of the Conference in 1989, as well as the comments of the Danish Seamen's Union (DSU).

1. With reference to its previous comments relating to restrictions on free collective bargaining and fixing of wage rates, the Committee notes that, in the spring of 1989, there were negotiations covering practically all agreements in the private and public sectors, where the parties agreed on average wage increases of 2.5 per cent. The Committee also refers to its observation under Convention No. 87 in this respect, as follows:

The Committee takes note of the Government's reports.

1. With reference to its previous comments on the legislative prohibition of strikes in various sectors, the Committee notes from the information supplied by the Government in its latest report that negotiations were held in the spring of 1989 in the public and private sectors, including the fields in which the Government had intervened in 1987, in the belief that the strikes in question would have affected services it considered to be essential. While noting with interest that, according to the Government, it has not been necessary to call strikes in sectors in which the parties concluded collective agreements in 1989, the Committee once again requests the Government to indicate whether the prohibition on strikes has been raised in the sectors that it does not consider to be essential.

2. With reference to the questions relating to the Danish International Ships' Register, the Committee refers to its comments under Convention No. 98 and recalls that section 10 of Act No. 408 is not in conformity with Articles 2, 3 and 10 of the Convention.

2. As regards the Danish International Ships' Register (DIS) established under Act No. 408 of 1988 and the conclusions of the Committee on Freedom of Association in Case No. 1470, the Committee recalls that article 10 of that Act 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.

At the 1989 Conference and in its communications, the Government submitted in substance the following arguments:

- without the DIS, there is no doubt that the whole Danish merchant fleet would have flagged out to so-called flags of convenience; the DIS was the only alternative;

- the whole issue of international registers should be discussed in a more global fashion in the appropriate international forum, where all parties could express their views;

- seafarers employed on ships registered on the DIS do not pay income tax (which may represent up to 70 per cent in Denmark); thus, it was necessary to adjust the levels of pay. However, the other conditions of work (holidays, rest periods, etc.) have not changed;

- the establishment of the DIS does not change the fact that full and voluntary collective bargaining is open to all seafarers employed on Danish ships;

- the criterion of residence was naturally chosen in section 10 of Act No. 408 since it is a decisive factor in the actual cost of living; this is not a problem of discrimination based on nationality;

- the real problem is a question of demarcation between different unions; the Government cannot accept that Danish trade unions should have the exclusive right to negotiate on behalf of seafarers employed aboard Danish ships.

The Government further indicates in its report that meetings were held with all representative parties in 1990; although the employees' organisations maintain their criticism about the way in which the DIS was introduced, there seems to be an agreement that it is here to stay. The Government also mentions that in 1989 the parties agreed on new collective agreements for employees on DIS ships. In its communication of 6 March 1991, the Government states that it is still ready for further discussions if the organisations involved express such a wish.

In its recent communication, the Danish Seamen's Union (DSU) maintains that Act No. 408, and in particular section 10 which introduces special rules concerning collective agreements for ships registered in the DIS, remains an obstacle to the right of free bargaining and continues to discriminate against seafarers by reason of their nationality. While the Ministry of Labour held meetings in 1990 with various workers' and employers' organisations, it indicated on 19 December 1990 that, for the time, the matter did not merit further consideration. The DSU requests that the Danish International Ships Register Act be amended.

The Committee notes that under section 10 of Act No. 408, collective agreements concluded by Danish trade unions apply only to persons considered as residents of Denmark. As such, this article prevents these unions from concluding collective agreements on behalf of other seafarers employed aboard Danish ships. The Committee considers that this provision is not in conformity with Article 4 of Convention No. 98, and Articles 2, 3 and 10 of Convention No. 87. In the Committee's opinion, these restrictive provisions do not aim at encouraging and promoting voluntary negotiation between employers' and workers' organisations, nor at allowing workers who are employed aboard Danish ships but who are not residents of Denmark, to join the organisations of their own choosing to defend their interests, free from interference by the public authorities. The Committee invites the Government to hold further constructive discussions on this subject with the organisations involved and to reconsider its position in the light of the foregoing comments.

Furthermore, the Committee wishes to be provided with statistical information on the magnitude of the problem, such as the number and percentages of Danish ships actually registered on the DIS relative to the total fleet, and the number and percentages of Danish and foreign seafarers concerned.

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

With reference to its previous comments relating to restrictions on the free fixing of wage rates, the Committee takes note of the Government's report. It also notes the conclusions reached by the Committee on Freedom of Association in Cases Nos. 1418 (presented by the Seamen's Union), 1443 (presented by the Danish Computer Workers' Trade Union) and 1470 (presented by several national federations) (approved by the Governing Body respectively in March 1988, November 1988 and March 1989: see 254th Report, paras. 200 to 227, 259th Report, paras. 163 to 197 and 262nd Report, paras. 33 to 78) where that Committee considered that various interventions by the public authorities in the collective bargaining process in different sectors have infringed the principle of free collective bargaining contrary to Article 4 of the Convention.

According to the Government's report, during 1987 the renewal of collective agreements took place without industrial action on a major scale and, in most occupational fields, the parties reached agreement on several major issues before the services of the Public Conciliator were called upon. The parties themselves initiated a new concept of four-year long agreements (so as to phase in reductions in the working week) with mid-term negotiations on some items possible in the spring of 1989. Agreement was not reached in some minor fields in the public sector. The Government states that it was obliged to intervene to end industrial action and prolong some agreements: Act No. 246 of 8 May 1987 for junior hospital doctors, Act No. 542 of 20 August 1987 for computer workers, Act No. 657 of 15 October 1987 for the seamen running the only island ship service for the state-owned company "Bornholmstrafikken" and Act No. 289 of 20 May 1987 for ambulance drivers and emergency fire-service workers.

In the private sector, explains the Government, the Public Conciliator used the linking provisions of the Act on Conciliation in Industrial Disputes to extend a general draft agreement concluded on 11 February 1987 to one part of this sector - represented by the Seamen's Union and the Danish Shipowners' Association - where negotiations were taking place towards renewing its own agreement. The Government adds that Parliament adopted Act No. 408 of 1 July 1988 to set up the Danish International Ships' Register, the aim of which is to improve the competitiveness of the Danish merchant fleet and thus to strengthen employment on board Danish ships. Section 10 of this Act introduces special rules concerning collective agreements for ships registered on the Danish International Ships' Register.

The Government is of the opinion that - in view of the collective bargaining procedure and traditions built up by the social partners in Denmark since the end of the last century, including those regulated aspects such as the powers vested in the independent Public Conciliator - its actions are in complete accordance with the spirit of this Convention. The Government particularly objects to the criticism by the Committee on Freedom of Association of the prolongation of agreements for four years on two counts, namely: (1) that the parties themselves decided to break with the traditional two-year long agreements in favour of four-yearly agreements, and (2) that certain pay-related items can be negotiated as early as the spring of 1989.

The Committee acknowledges that this Convention, according to Article 6, does not deal with the position of public servants engaged in the administration of the State. It also recalls that respect for the autonomy of the parties to collective bargaining can be waived only for compelling reasons of national economic interest. It is clear that the workers in the sectors touched by the various interventions - such as computer workers employed in the tabulation of statistics, or interns - are not public servants engaged in the administration of the State and therefore cannot be denied the right to voluntary negotiations with a view to the regulation of terms and conditions of employment by means of collective agreements as provided for under Article 4 of the Convention.

Likewise, it is evident that even if the Government sincerely believed that it was or would be faced with a series of national economic crises, the various measures taken went beyond the criteria of acceptable intervention by the public authorities in the bargaining process, namely that the restriction of free collective bargaining should be exceptional, applied only to the extent necessary, without exceeding a reasonable period and accompanied by adequate safeguards to protect the standard of living of the workers concerned (General Survey, para. 315). The Committee bases its conclusion on the following grounds: as the Government's own report and the many cases presented to the Governing Body Committee and discussed in the present Committee over recent years show, such interventions are not exceptional measures but are resorted to on a regular basis when bargaining and conciliation appear to be dead-locked; it is debatable whether the interventions are used only to the extent necessary because, although several specific sectors have each been the subject of a specific intervention, the measures affect both private and public areas and, in one case, imposed an outside settlement at the very point when negotiations were nearing a successful conclusion (Case No. 1418); the interventions are in some cases permanent (Act No. 408, referred to in Case No. 1470) or are to last for four years, although the Committee takes due note of the Government's stand on this point; and the interventions - except for Act No. 408 - do not appear to address the question of maintaining the workers' standard of living.

Given that these various measures therefore are not in conformity with the requirements of Article 4, the Committee asks the Government: (1) to amend Act No. 408 so as to ensure that collective bargaining through their chosen representatives is open to all seafarers employed on Danish internationally registered ships; (2) to ensure that those sectors which are opening bargaining in the spring of 1989 - albeit on limited items in their collective agreements - will be able to negotiate free from interference by the public authorities, and that, more generally, collective bargaining on a voluntary basis, free from any restriction, will resume as rapidly as possible.

It requests the Government to inform it of the outcome of the next negotiations. [The Government is requested to supply full particulars to the Conference at its 76th Session.]