Demande directe (CEACR) - adoptée 2003, publiée 92ème session CIT (2004)

In its previous comments, the Committee requested the Government to keep it informed of the progress made to ensure that all teachers, regardless of their classification as public servants, may exercise strike action without penalty. The Committee notes that the Government indicates in its report that the Ministry of Finance published a circular on the employment of public servants which entered into force on 1 January 2001. The circular contains some transitional arrangements under which the persons employed under a public servant status before 1 January 2001 are entitled to maintain this status, to a certain extent, even if they do not fall within the categories of employees who will, henceforth, be covered by the public servant status. Once the employees benefiting from the transitional arrangements will have retired, public servants will be limited to those who are exercising authority in the name of the State, that is public employees who can be deprived of the exercise of the right to strike. The Government adds that the Central Organizations’ Joint Committee (CFU), the Association of Local Government Employees’ Organizations (KTO) and the Salaried Employees’ and Civil Servants’ Confederation (FTF) have declared that they will not take any further action in this matter, including with the ILO.

The Committee recalls that the same question was examined by the Committee on Freedom of Association following a complaint lodged by he Danish Union of Teachers (DUT) and the Salaried Employees’ and Civil Servants’ Confederation (FTF) (Case No. 1950). At that time, the Committee had recalled that the right to strike could 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). Like the Committee on Freedom of Association, this Committee considers that workers in education are not an essential service in the strict sense of the term, nor are they public servants exercising authority in the name of the State. The Committee has duly noted that, under the transitional arrangements provided for in the circular, the workers concerned have been given the choice to maintain their status of public servant with the accompanying advantages, but are also being deprived of the right to strike because of this status; or to fall outside this status, thus enjoying the right to strike. In this respect, the Committee would like to 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 recalled above (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 176). Therefore, the Committee requests the Government to continue to keep it informed of the steps that may be envisaged, so that teachers who have chosen to keep their status as public employees may have recourse to strike action without the risk of being sanctioned. The Committee would also be grateful if the Government could indicate how many teachers have chosen to retain their status of public servant and how many teachers exist overall in the workforce. It further requests the Government to provide a copy of the circular mentioned in its report and to specify the categories of employees considered to be exercising authority in the name of the State, and to whom the status of public servant will henceforth apply, along with the restrictions concerning strike action.

Further, in its previous comments and in light of Case No. 1971 examined by the Committee on Freedom of Association, the Committee noted that section 12 of the Conciliation Act might have a negative impact on the possibility of workers’ organizations to exercise the right to strike, in so far as they might be bound by a labour market decision to accept an overall draft settlement to which a collective agreement concerning their sector had been linked. Recalling that by virtue of Articles 3, 8 and 10 of the Convention, workers’ organizations should have the right to organize their activities and to formulate their programmes for the purposes of furthering and defending the interests of their members, including the possibility to exercise industrial action, the Committee requested the Government to take the necessary steps to amend its legislation so as to ensure that the view of the majority of workers in a given sector is not subordinated to the view of the majority of the entire labour market as concerns the possibility of undertaking industrial action.

The Committee notes the indication in the Government’s report that the question has been taken up in the permanent ILO committee in the country and that the parties are presently reviewing it. The Committee hopes that, following the tripartite discussions, the necessary steps will be taken to amend section 12 of the Conciliation Act for the reasons recalled above. The Committee requests the Government to keep it informed of any progress made in this regard.

Finally, the Committee notes the information provided by the Government on the introduction of a new structure of collective negotiations and agreements in the financial sector which enables the social partners concerned to depart from the agreements negotiated at the central level and conclude an agreement applicable to the company. The Government indicates that there is no right to strike linked to the negotiations of the original company agreement and to its renewal. If the parties fail to reach an agreement, the matter should be referred to mediation and arbitration. The exercise of the right to strike remains in respect of the renewal of the collective agreements negotiated at the central level. The Committee requests the Government to specify the source of the restriction to the right to strike concerning the negotiation or renewal of company agreements and, in particular, whether it results from an agreement between the parties concerned. It also requests the Government to provide samples of company collective agreements and of any provisions governing recourse to industrial action, with its next report.