Informe definitivo - Informe núm. 309, Marzo 1998

1. 186. In a communication dated 9 July 1997, the Association of Drivers in Arhus submitted a complaint of violations of freedom of association against the Government of Denmark.
2. 187. The Government sent its observations in a communication dated 12 January 1998.
3. 188. Denmark has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the Workers' Representatives Convention, 1971 (No. 135).

A. The complainant's allegations

1. 189. In its communication dated 9 July 1997, the Association of Drivers in Arhus submitted a complaint against the Government of Denmark for the violation of Conventions Nos. 98 and 135.
2. 190. The complaint relates to the dismissal in 1996 of Mr. Louie Andersen from his employment with Arhus Renholdningsselskab. The complainant explains by way of background that the municipality of Arhus entered into a 20-year contract with the private company Arhus Renholdningsselskab for the collection of rubbish.
3. 191. In the autumn of 1995 Arhus Renholdningsselskab and the municipality of Arhus initiated an attempt for a new system for the collection of rubbish, called "System 2000". As a part of this project a district leader of Arhus Renholdningsselskab agreed with three employees in district 66 that they were to collect documentation of irregularities in the district by taking photographs. This agreement entered into force on 15 November 1995 and remained in force until 4 December 1995, when the employees in question informed Arhus Renholdningsselskab that their workers' representative, Mr. Louie Andersen, had ordered them to stop the documentation work because he wished to discuss the case at the workers' representatives meeting. The meeting was held on 5 December 1995, when Mr. Andersen expressed his dissatisfaction with the system.
4. 192. On 28 November 1995, the Labour Inspection in the region of Arhus issued an Order to Arhus Renholdningsselskab, under the Danish Working Environment Act, to take effective measures which could ensure protection of the safety and health of the workers when collecting dustbins. The Order took effect as from 1 January 1996, and was discussed during a meeting in the Security Committee of Arhus Renholdningsselskab on 7 December 1995, where agreement was reached to take note of the Order.
5. 193. In a letter of 12 December 1995, Arhus Renholdningsselskab accordingly informed the employees that the Order was to be complied with as from 1 January 1996, and that refusal to comply with the Order would imply an immediate termination of the employment relationship.
6. 194. On 19 December 1995 the crews reported to the company that 170 dustbins had not been emptied because the employees had complied with the Order of the Labour Inspection, implying in fact that the working time under the applicable collective agreement was no longer sufficient due to the reduced capacity of the crews. Arhus Renholdningsselskab requested the employees to finish the work, which they denied.
7. 195. During a subsequent telephone conversation between Mr. Allan Larsen of Arhus Renholdningsselskab and the workers' representative, Mr. Andersen, it was revealed that the employees had discussed the matter with Mr. Andersen and that he had advised them not to finish the work. On the next day, 20 December 1995, at about 2.20 p.m. the crew reported to the company that the usual daily work could not be finished.
8. 196. A meeting was held between Arhus Renholdningsselskab and Mr. Andersen and his substitute, Gert Jensen, after which the company ordered the dustmen to finish the work which they had refused.
9. 197. Subsequently, Arhus Renholdningsselskab alleged that Mr. Andersen, both during the meeting at Mr. Larsen's office and directly before the employees, had ordered the employees not to finish the work because it was not covered by a collective agreement. The company therefore requested the Association of Drivers to initiate arbitration proceedings in order to decide on his dismissal.
10. 198. On 22 January 1996, the court of arbitration decided that Arhus Renholdningsselskab had the right to dismiss Mr. Andersen, holding, inter alia, that he had actively interfered in the right of the employer to regulate the execution of the work.
11. 199. According to the complainant, one particular problem in this case was whether the advice given by Mr. Andersen to his colleagues exceeded the limits for the legitimate activities of the workers' representative. On the one hand, there was the interest of Arhus Renholdningsselskab to maintain its right under Danish law to decide upon the execution of the work. On the other hand, there was the legitimate right of the workers to be advised by the workers' representative regarding their rights and obligations under the collective agreement, especially in the situation in question where the Order issued by the Labour Inspection made it necessary to carry out extra work and where it was very doubtful whether such work was provided for by the collective agreement in question.
12. 200. Furthermore, the complainant expressed its regret that the decision of the arbitration court did not indicate where the limits of the freedom of speech of Mr. Andersen should be drawn, and therefore the decision did not contribute to a clarification of the applicable rules and, on the contrary, has created severe difficulties in the predictability and foreseeability of the outcome of future cases.
13. 201. The complainant therefore alleges that the decision of the court of arbitration does not imply that the collective agreements in question provided Mr. Andersen with effective protection against anti-union discrimination.
14. 202. As concerns Convention No. 135, the complainant alleges that a requirement of a detailed statement of the reasons for the decision is of vital importance for an effective protection of judicial machinery in cases of dismissals of workers' representatives, as such protection is not provided for if the applicable rules are not accessible and foreseeable.
15. 203. The complainant adds that Mr. Andersen's right of freedom of expression has also been violated and concludes that it is a workers' representative's basic right to inform his colleagues about the content of the collective agreement under which they carry out their work, and therefore there has been a violation of the ILO Constitution and fundamental trade union rights.

B. The Government's reply

1. 204. In its communication dated 12 January 1998, the Government indicated that Arhus Renholdningsselskab wanted to dismiss the workers' representative, Mr. Andersen, by the end of December 1995, due to his role in the work stoppages which took place that month. The special procedure for dismissal of a workers' representative was initiated and, as it was not possible for the parties to agree on whether there were imperative reasons for the dismissal of the workers' representative, the case was submitted for industrial arbitration. The arbitration court stated in its award of 22 January 1996 that Louie Andersen had committed such a clear and serious breach of his obligations as workers' representative that it found the employer -- Arhus Renholdningsselskab -- entitled to dismiss him for imperative reasons.
2. 205. In Denmark there is no legislation concerning workers' representatives. The rules on workers' representatives, including their special protection against dismissal, are laid down by collective agreements, in some cases supplemented by the provisions laid down in the General Agreement. The fact that rules concerning workers' representatives are exclusively based on agreements between the social partners is a tradition which is almost as old as the country's collective bargaining system.
3. 206. Today, virtually all collective agreements contain rules on workers' representatives. The central element of these rules is the protection of workers' representatives, but the rules also deal with election, eligibility and the duties of workers' representatives. Workers' representatives enjoy special protection against dismissal which goes beyond the protection against dismissal enjoyed by other employees. The main rule is that a workers' representative may only be dismissed for imperative reasons. The dismissal will not become effective until the organizations have had the possibility to submit it to special dispute settlement procedures. The employment relationship of a workers' representative may thus not be broken off until these procedures have been brought to an end, unless the dismissal is caused by lack or shortage of work.
4. 207. The arbitration court set forth the facts in this case as follows:
   • (a) Pilot project on garbage collection
5. 208. On 5 December 1995 Mr. Andersen stopped a pilot project which was part of the establishment of a new system for collection of garbage. It appears, inter alia, from the minutes of a meeting with the management which was organized the following day -- 5 December 1995 -- that the management could not accept this step on the part of Mr. Andersen. The management was of the opinion that the workers' representative should have contacted the management if he was unsatisfied, and the management could then have suspended the work. It further appeared that it was the second time within a short period that the workers' representative had stopped the performance of work operations. At the same time, the management informed Mr. Andersen that they considered it a serious matter and that it might have consequences if repeated.
   • (b) Working environment order
6. 209. On 28 November 1995 the regional working environment service issued a notice to the company to take measures to ensure a safe and proper way of collecting plastic cans so that the employees were not exposed to harmful body strains. The notice took effect from 1 January 1996, and when discussed at a meeting in the Safety Committee on 7 December 1995 it was agreed to comply with the notice. On 19 December 1995 one of the teams still had 170 collections to do. The team was asked by the management to complete the work, which they refused to do. During a subsequent telephone conversation between the management and Mr. Andersen it became clear that it was Mr. Andersen who had told the team not to finish the work.
7. 210. Again, on 20 December 1995, several of the teams announced at the normal end of the working day that the work had not been finished. The management first asked the employees to go out and finish the work in accordance with the provisions laid down in the collective agreement on the performance of work on a piece-rate basis, which they refused to do. The management once again instructed the employees to finish the work, but this was again refused. In connection with the giving of these instructions the workers' representative intervened and stopped the execution of the work. (According to the Government, it appears from the facts of the case as described in the award that the parties did not agree on this point of the events.) By letters of 20 and 22 December 1995 the company informed the Association of Drivers that it considered the case a breach of the collective agreement in force and it requested that the case be dealt with under the special procedures to settle industrial disputes. The labour court later ruled that the work stoppages constituted a breach of the collective agreement.
   • (c) Dismissal procedures
8. 211. On 28 December, the employers' association asked the "Specialarbejderforbundet" (the organization of the employees' and the workers' representative) to start procedures for dealing with the dismissal of Mr. Andersen. The reason for the dismissal was that the workers' representative had on 20, 21 and 22 December 1995 told the employees to go home at 2 p.m. although the management had instructed the employees to finish the daily collection of garbage.
9. 212. It is stated in the award that the working time is normally between 6 a.m. and 3.30 p.m.; however, on Fridays, between 6 a.m. and 2.30 p.m. If the work makes it necessary to extend the working time beyond 3.30 p.m., and 3 p.m. on Fridays, this shall be reported to the company office half an hour in advance. The company considered that there was no doubt that the employees had a duty to perform the work to which they were bound under the collective agreement and that Mr. Andersen had interfered with its managerial prerogative when he stopped the execution of the work. The management considered this a gross breach of his duties as a workers' representative.
10. 213. From the statements of the workers' representative, it appears that he did not consider the work to be covered by the collective agreement and that the employees had no duty to work more than 37 hours per week.
11. 214. In its award, the arbitration court found:
    • -- that Mr. Andersen had on 19 December actively interfered with the employer's right of management so that the team in question had not finished their work on that particular day;
    • -- that Mr. Andersen, by his statements concerning the collective agreement during the meeting with his colleagues on 20 December, directly influenced them not to perform the work after 2 p.m.; and
    • -- that he, in the afternoon of the same day, actively obstructed the management's order to finish the work.
      • The arbitration court thus ruled that he was guilty of such a clear breach of his duties as a workers' representative that there were imperative reasons for dismissing him.
    • 215. In the Danish system, the labour market organizations are responsible for agreeing on pay and working conditions, including rules on workers' representatives, and the State has primarily introduced legislation which ensures an impartial and independent system of courts of law which may assist the social partners in their work. According to the labour law tradition in Denmark, the starting-point is that the labour court hears cases concerning breach of collective agreements, whereas disputes concerning the interpretation of collective agreements are settled by industrial arbitration. The parties in connection with industrial arbitration are normally the parties to the collective agreement in question. Normally, two arbitrators are appointed by each side as well as a jointly appointed neutral umpire. Often the umpire appointed is a Danish supreme court judge, and in concrete cases the parties may choose to elect several umpires. (In the present case, three supreme court judges had been appointed umpires.) The philosophy underlying this composition of the arbitration board is that the social partners themselves are in the best position to know how their collective agreement should be interpreted. If no agreement can be reached among the members of the arbitration board, the case will be decided by the neutral umpire.
12. 216. In light of the above, the Government considers that Mr. Andersen's advice and activities exceeded the limits of the activities of workers' representatives. Furthermore, Mr. Andersen was effectively protected by the collective agreement supplemented by the rules on settlement of industrial disputes and the General Agreement between the DA and the LO.
13. 217. Mr. Andersen was not dismissed because he advised his colleagues on the interpretation of the collective agreement, but because he intervened directly and told his colleagues not to comply with an order to complete the day's work which had just been given by the management. Mr. Andersen had already been given a warning by the management to the effect that if he acted in a way to influence his colleagues not to perform the work instead of going to the management to negotiate the matter, it would lead to consequences, if repeated.
14. 218. In conclusion, the Government considers that the Danish rules on protection of freedom of association and workers' representatives are in full compliance with the obligations under Convention No. 98. Mr. Andersen was dismissed because he failed to try to solve the dispute concerning the interpretation of the collective agreement through the procedures and machinery set up to settle such disputes -- if necessary with the assistance of his trade union. Instead, he actively convinced his colleagues not to perform the work they had been ordered to perform by the management, giving rise to an imperative reason for dismissal.

C. The Committee's conclusions

1. 219. The Committee notes that the allegations in this case concern the dismissal of a workers' representative in violation of the principles of freedom of association concerning protection against anti-union discrimination, freedom of expression and effective protection of workers' representatives.
2. 220. According to the information provided by the complainant and the Government, there appears to be overall agreement on the factual elements of the case, with the exception of the question as to whether the workers' representative, Mr. Andersen, intervened and stopped the execution of work when the management instructed the employees a second time to finish the work which they were not able to terminate on 20 December. As conciliation procedures were unsuccessful, the case went before the arbitration court, according to the applicable collective agreement. On the above-mentioned question of fact, the arbitration court found that Mr. Andersen, by his statements concerning the collective agreement during the meeting with his colleagues on 20 December, directly influenced them not to perform the work after 2 p.m., and that he actively obstructed the management's order to finish the work. The arbitration court found that such action justified "imperative" reasons for dismissal in accordance with the collective agreement in force.
3. 221. The complainant contends that Mr. Andersen was only exercising the legitimate activity of a workers' representative when he called into question whether the work which the employees were instructed to do was indeed considered to be covered by the collective agreement. The Government points out the employer's objection that there are specific procedures for the interpretation of collective agreements which were not followed by Mr. Andersen. The Government adds that the labour court later ruled that work stoppages constituted a breach of the collective agreement.
4. 222. The Committee further notes that, in Denmark, specific mechanisms exist both for hearing cases concerning breach of collective agreements, the labour court, and for settling disputes concerning the interpretation of collective agreements, industrial arbitration. In constituting the arbitration courts, two arbitrators are appointed by each side, as well as a jointly appointed neutral umpire. Furthermore, these mechanisms are given force not only through the rules on the settlement of industrial disputes, but also through first-level collective agreements and the General Agreement between the DA and the LO. The Committee must therefore conclude that sufficient protection against anti-union discrimination exists in the independent machinery which has been established in consultation with the social partners, and reaffirmed through collective agreements, and that this machinery was correctly implemented in the present case. The Committee therefore considers that this case does not call for further examination.