Informe definitivo - Informe núm. 311, Noviembre 1998

1. 430. In a communication dated 22 January 1998, the Danish Union of Teachers (DUT) and the Salaried Employees' and Civil Servants' Confederation (FTF) submitted a complaint of violations of freedom of association against the Government of Denmark. The Government sent its observations in a communication dated 20 May 1998.
2. 431. Denmark has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No 98).

A. The complainants' allegations

1. 432. By way of background to the complaint, the complainants explain that the Danish Union of Teachers (DUT) is a member of the Salaried Employees' and Civil Servants' Confederation (FTF), which as a central organization handles the interests of its member organizations in general areas and in international matters. The interests of the DUT relating to pay and employment conditions at national level are handled by the DUT through the Danish Central Organization of Teachers (LC).
2. 433. The complainants contest a decision of 8 January 1997 by the Local Civil Servant Disciplinary Tribunal which held that it was inconsistent with Danish civil servant law when, in connection with an official strike organized by the Central Organization of Teachers (LC), that same organization established a boycott of the teaching positions affected by the strike. The strike, which constituted a lawful industrial action for the purpose of obtaining better payment and working conditions under the collective agreements, comprised all members of the Danish Union of Teachers employed in all positions regulated by the terminated collective agreement for teachers in the primary and secondary school system and the School Directorate of Copenhagen dated 9 July 1993. These teachers are not civil servants and accordingly, the strike did not comprise civil servants. The boycott, however, comprised all LC members, including civil servants, and prohibited its members from applying for or accepting positions that were governed by the terminated collective agreement for teachers.
3. 434. The order of the Local Civil Servant Disciplinary Tribunal fined the LC 100,000 Danish kroners. According to the rules of the LC, the penalty is payable by the Danish Union of Teachers, as the conflict comprised members of that Union only. A copy of the decision was attached to the complaint.
4. 435. The National Association of Local Authorities in Denmark and the Local Authority of Frederiksberg, both employers' organizations, asserted to the Local Civil Servant Disciplinary Tribunal that the boycott notices pertaining to the group of civil servants (the so-called "closed group") (Endnote 1) were an indication of collective industrial action by civil servants, with a view to influence effectively the pay formation in the labour dispute.
5. 436. The LC asserted that the boycott did not constitute collective violation of anything that could be considered part of the obligations of the civil servants concerned, as they are under no obligation to apply for or accept any of the positions comprised by the boycott. They would not be in breach of any duty by omitting to apply for positions. The boycott did not prevent the employers from appointing civil servants to other positions, or from classifying such posts as positions of civil servants employed by local authorities.
6. 437. The legal situation in Denmark, as expressed, inter alia, in the above decision of the Local Civil Servant Disciplinary Tribunal, is accordingly that Danish law -- specifically the Danish Act on Civil Servants -- prohibits teachers who are employed as civil servants from taking collective industrial action, whether in the form of boycotts or strikes.
7. 438. In summary, it can be ascertained that the rights of the groups of teachers in the Danish primary and secondary school system who perform the same work for the same salary differ considerably as regards collective industrial action. Teachers employed on a collective agreement basis are entitled to strike, inter alia, whereas teachers employed as civil servants are neither entitled to strike nor to take any other form of collective industrial action.
8. 439. In conclusion, the Danish Union of Teachers and the FTF consider that this legal situation is contrary to ILO Conventions Nos. 87 and 98 such as they are drafted and have been interpreted through subsequent decisions of the Committee on Freedom of Association.

B. The Government's reply

1. 440. In its communication dated 20 May 1998, the Government explains by way of background that the Local Civil Servant Disciplinary Tribunal in its decision of 8 January 1998 held that it was in contravention of the Danish civil servant law that teachers employed as civil servants participated in industrial action in connection with a strike called by teachers employed under a collective agreement.
2. 441. The Local Civil Servant Tribunal stated that the action announced by the LC would have led to the taking of collective industrial action which would generally have been comparable to a situation where the public servant was to act in breach of his/her obligations as civil servants under the civil servant law and the Act on the Local Civil Servant Tribunal. The collective industrial action planned meant that none of the teachers with civil servant status were allowed to seek or accept positions covered by the collective agreement which had expired and which had not been renegotiated. The Danish Constitution provides that rules on recruitment, dismissal, transfer and retirement of civil servants are laid down by statute. Regulation of employment and pension terms for civil servants in the state sector takes place partly by legislation, that is the Consolidation Act No. 572 of 5 August 1991 on civil servants in the State, the school system and the national church, as subsequently amended (the TL) and Consolidation Act No. 724 of 9 September 1993 on civil servants in the State, the school system and the national church on pensions to civil servants (the TPL) and partly by agreement under section 45 of the TL.
3. 442. The procedure for negotiations and conclusion of agreements has been laid down by the basic agreement applying to civil servants (that is the Consolidation Act No. 515 of 28 November 1969 on the basic agreement under Act No. 291 of 18 June 1969 on civil servants in the State, the school system and national church), but the settlement of any disputes of interest takes place according to the rules laid down in section 46 of the TL.
4. 443. Civil servants are not covered by the general labour law system and most of the general labour law legislation does not apply to civil servants.
5. 444. The Government asserts that in any employment relationship there is a certain balance between the rights and duties of the employer and the employee, respectively.
6. 445. Employment as civil servants in the state sector was originally seen as a life-long relationship and a special loyalty was presumed from the civil servant; this was balanced by security of tenure and pension rights at a time when labour market pension was an unknown concept.
7. 446. The most important differences between employment as a civil servant and employment in accordance with the ordinary labour law system are the following:
8. (1) The settlement of disputes of interest in connection with negotiations (section 46 of the TL).
   • A few fundamental employment terms are laid down by statute but most terms of employment and pay are laid down by agreements concluded between the central organizations of civil and public servants and the Ministry for Finance.
   • If no agreement can be reached on the renewal of the agreements, the parties are not released from the existing agreements by taking industrial action, but by the Finance Minister's tabling of a special bill under section 46 of the TL. This settlement model has not been used since the system was introduced in connection with the civil servant reform in 1969. (The civil servants have, however, been covered by prolongation acts which have covered the entire public sector of the labour market.)
9. (2) A civil servant is entitled to severance pay for three years if he or she is dismissed because the job is axed and if no other appropriate position can be offered. The severance pay constitutes a monthly amount corresponding to the previous salary (section 32 of the TL). On expiry of the three-year period the civil servant will receive a pension if he or she has a seniority of at least ten years.
10. (3) In some respects civil servants enjoy special favourable pension rules as laid down in the TPL.
    • If a civil servant has been employed for ten years and is dismissed due to an unforeseeable event (including sickness, incompetence or cooperation problems) the person concerned will be entitled to a special individual pension, the amount of which will depend upon the seniority of the person concerned and the amount of the salary at the time of retirement (section 2 of the TPL).
11. (4) Special favourable rules on early retirement apply to civil servants.
12. (5) Civil servants are covered by a special set of disciplinary rules (sections 19-25 of the TL). These rules ensure that a civil servant who has committed an individual breach of his duties will receive a statement of the facts of the case and will be given the possibility of submitting a reply to this. In the case of serious breaches a special interrogation will take place with a special interrogator.
    • The sanctions differ according to the nature of the offence so that the sanction is reasonable in relation to the offence committed. These disciplinary rules should be seen in the context of the special decorum (propriety) requirement (section 10 of the TL), under which a civil servant has a duty to conscientiously comply with the rules which apply to the position concerned and to have a conduct, both in and outside his or her service, worthy of the respect and trust required by the position.
    • Individual infringements of this provision are dealt with according to the set of disciplinary rules, while collective infringements of this provision (strike, etc.) are dealt with by the Civil Servant Disciplinary Tribunal (sections 52-54h of the TL).
13. (6) In addition to these major differences -- most of which are for the benefit of the civil servants -- there are also certain minor differences concerning: probationary period, duty to accept transfers, notices of dismissal, and reduced hours due to sickness with full pay.
14. 447. The Government concludes that civil servants are subject to a number of special employment terms which give them special obligations, but also a number of advantages.
15. 448. In the Government's opinion the duty to accept transfers is offset by the easier access to another position, if required, and the rules on decorum and the corollary duty not to strike are offset by favourable rules on severance pay, pension due to any other unforeseeable event than age and early retirement. Furthermore, disciplinary rules ensure a thorough investigation of cases of misconduct and prevent imposition of sanctions which are out of proportion to the misconduct. The status of civil servants should -- as other employment relationships -- be seen as a whole and this means that the entire employment relationship should be taken up for revision if individual elements are taken out or radically changed.
16. 449. When the local authorities took over the regulation of pay and employment terms for teachers in the primary and secondary school system the starting point was that teachers should in the future be employed under collective agreements. As teachers who were already civil servants could not be transferred to employment under a collective agreement against their will, legislation was adopted to ensure that they could continue to be employed as civil servants, the so-called "closed group" (Act No. 382 of 20 May 1992). At the wish of the Danish Union of Teachers it was further ensured that this type of employment status could be preserved, also in connection with certain job shifts.
17. 450. This is the reason for the existence of two different types of employment status in the school system; while employees in the "closed group" are covered by the terms described above, other employees are covered by collective agreements and insurance-based pension schemes.
18. 451. By way of conclusion, the Government emphasizes that the group of teachers with the status of civil servants who became covered by the collective action with boycott of advertisements of positions of teachers covered by collective agreements, will all be free to choose to be employed under a collective agreement. However, experience shows that this normally never happens because the teachers prefer to preserve their status as civil servants, both generally and in connection with job shifts, which is also confirmed by the wish of the LC which concluded the special agreement making it possible for civil servants to preserve their status, also in connection with job shifts. The experience is that only a very small group of about five persons have been transferred to employment under a collective agreement, for instance in cases where the local recruitment authorities have stipulated this as a condition in connection with promotion to, for instance, the position of vice-principal.
19. 452. The situation is thus that this group of teachers has voluntarily chosen to remain employed with the status of civil servants with the special composition of rights and duties attached to this status, including the duty not to take collective industrial action.
20. 453. As teachers are thus free to chose an employment status governed by the ordinary labour law system the Government considers that it has not violated ILO Conventions Nos. 87 and 98. The Government acknowledges, however, the problems that a wide use of employment of persons with civil servant status may cause in relation to Denmark's international commitments and, for this reason, has in recent years tried to reduce the use of civil servant employment relationships. Discussions are presently taking place between the Ministry for Finance and the Danish civil servants' organizations in this regard.

C. The Committee's conclusions

1. 454. The Committee notes that the allegations in this case concern the restriction on the right to strike of certain teachers who are covered by civil service legislation and regulations.
2. 455. In particular, the Committee notes from the 1995 judgement of the Local Civil Servant Disciplinary Tribunal in the case of the National Association of Local Authorities in Denmark and the Local Authority of Frederiksberg against the Central Organisation of Teachers (LC) that the LC was charged with having initiated collective industrial action among some 35,000 teachers in the Danish primary and secondary school system who are considered to be civil servants. These teachers are apparently covered by the Act on Local Civil Servant Disciplinary Tribunal and the Act on Civil Servants whereby collective industrial action has been considered to be unlawful by virtue of sections 2(1) and 3(3) and sections 53(1) and (2) and section 54 respectively (see annex). Accordingly, the tribunal ordered the LC to pay a fine of 100,000 Danish Kroner.
3. 456. The Committee first notes that, while the action actually being attacked was the "boycott" by members of the organizations affiliated to the LC against applying for or accepting positions which are regulated by the terminated collective agreement for teachers in the primary and secondary school system, the tribunal's judgement rules against the LC because this boycott was initiated among civil servants "in order to influence effectively the pay formation in the labour dispute" as part of the "collective industrial action" undertaken by the members employed in the positions regulated by the terminated collective agreement. While noting that the LC argued to the tribunal that the civil servants were not under an obligation to apply for or accept positions affected by the notice of boycott and therefore there was no breach of duty, the Committee considers that it is only necessary to examine the core issue in this case which is the tribunal's judgement of the action as unlawful collective industrial action by virtue of the Acts on Local Civil Servant Disciplinary Tribunal and on Civil Servants. The question to be considered by the Committee is, therefore, simply whether teachers may be restricted in their right to strike due to their status as civil servants.
4. 457. The Committee would recall that it has been faced with many cases involving restrictions on the right of private- and public-school teachers to take collective action. The unwavering approach to the question of whether they, as teachers often having special domestic status and functions, should be allowed to exercise the right to strike has been clearly stated. (272nd Report, Case No. 1503 (Peru), paras. 116 and 117; 277th Report, Case No. 1528 (Germany), paras. 285 and 286; 286th Report, Case No. 1629 (Republic of Korea), para. 563). The Committee must therefore reiterate that it has always held the right to strike to be one of the fundamental rights of workers and their organizations; it is one of the essential means through which they may promote and defend their occupational interests. It recalls that the right to strike can only be restricted or prohibited in: (1) the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population). (See Digest of decisions and principles of the Freedom of Association Committee, 4th revised edition, 1996, para. 526.) However, the Committee considers that workers in education are not covered by the definition of essential services or of the public service exercising the powers of the public authority (op. cit., Cases Nos. 1503, 1528 and 1629).
5. 458. The Committee notes the opinion expressed by the Government in its reply that the rules on decorum and the "corollary duty not to strike" are offset by favourable rules on severance pay, pension and early retirement. Furthermore, the Committee notes the Government's argument that two different types of employment status exist in the school system -- the "closed group" with the status of civil servants and the other employees covered by collective agreements (who enjoy the right to strike) -- and that, while being free to choose their employment status, certain teachers have opted, and will probably continue to choose, to preserve their status as civil servants because of the benefits afforded. The Committee has, however, already stressed in this respect that it was not swayed by the particular status or designation that any national system might bestow on teachers; the decisive factor is whether the functions of the employees covered by the strike ban show that they are engaged in an essential service or in a public service exercising the powers of the public authority. To paraphrase the words of the Committee of Experts (Freedom of association and collective bargaining, General Survey, 1983, paragraph 214), to permit a too broad definition of the public service would mean that the principle of the right to strike would become meaningless. (277th Report, Case No. 1528 (Germany), para. 287.) The arguments that traditionally civil servants do not enjoy the right to strike because the State as their employer has a greater obligation of protection towards them have not persuaded the Committee to change its position on the right to strike of teachers. (ibid., para. 288.)
6. 459. The Committee must therefore request the Government to take the necessary measures to ensure that all teachers, regardless of their classification as public servants, enjoy the right to strike and requests the Government to keep it informed of the progress made in this regard.
7. 460. Moreover (and taking due note that the complainant in this case is the Danish Union of Teachers because, according to the rules of its parent organization, the Danish Central Organization of Teachers (LC), the fine is to be paid by the DUT), the Committee would recall that no one should be penalized for carrying out or attempting to carry out a legitimate strike and that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. (See Digest, op. cit., para. 590, and Freedom of association and collective bargaining, General Survey, 1994, para. 176.) The Committee therefore requests the Government to take the necessary measures to ensure that the Local Civil Servant Disciplinary Tribunal's judgement can be reviewed in the light of the above-mentioned freedom of association principles and to keep the Committee informed in this regard.

Z. Annex

• Act on Civil Servants
• Section 10
• The civil servant shall conscientiously comply with the rules applying to his
• position and both in and outside the service show that he is worthy of the
• esteem and confidence that the position requires.
• Section 53, paras. (1) and (2)
• The Civil Servants Disciplinary Tribunal shall hear cases involving:
  1. (1) violation or interpretation of agreements entered into or provisions which
• according to sections 46-47 substitute agreements;
  2. (2) collective violation of section 10 committed by civil servants covered by
• one or more of the central organizations mentioned in section 49.
  1. (1) In cases like those mentioned in paragraph (2) of section 53(1), the
• President of the Civil Servants Disciplinary Tribunal or his deputy may order
• that the violation be brought to an end.
  2. (2) A civil servant having committed one of the violations mentioned in
• paragraph (2) of section 53(1) may be given a warning or a reprimand or be
• fined by the Civil Servants Disciplinary Tribunal.
  3. (3) One or more of the central organizations mentioned in section 49 may be
• fined by the Civil Servants Disciplinary Tribunal if the central organization
• has supported a violation like the one mentioned in paragraph (2) of section
  53. 53(1) or has not by all reasonable means tried to prevent the violation or
• bring it to an end. The fine shall be payable to the party who has instituted
• the proceedings. The provisions of the first and second sentences shall apply
• correspondingly to organizations affiliated to the central organizations.
• The Local Civil Servants Disciplinary Tribunal
• Section 2(1)
• The Local Civil Servants Disciplinary Tribunal shall hear cases involving
• collective violation of provisions corresponding to section 10 of the Danish
• Act on Civil Servants, in regulations and by-laws for civil servants employed
• by local authorities and civil servants employed by the Copenhagen Hospital
• Corporation and in the regulations applying to staff employed under the
• regulations of local and regional day-care and residential institutions and
• independent day-care and residential institutions with which local councils
• and county councils have entered into an operating agreement. The Civil
• Servants Disciplinary Tribunal may only hear violations committed by employees
• covered by an organization with a right to negotiate.
• Section 3(3)
• One or more of the organizations mentioned in section 1(4) may be held liable
• by the Civil Servants Disciplinary Tribunal to pay a fine if the organization
• has supported a violation as mentioned in section 2(1) or has not by all
• reasonable means tried to prevent the violation or bring it to an end. The
• fine shall be payable to the party who has instituted the proceedings.