Rapport définitif - Rapport No. 305, Novembre 1996

1. 229. The Association of Danish Clinical Dietitians (ADCD) submitted a complaint of violations of trade union rights against the Government of Denmark in communications dated 30 November and 9 July 1995.
2. 230. The Government sent its observations on this case in communications dated 28 June and 8 August 1996.
3. 231. 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 complainant's allegations

1. 232. In its communication of 30 November 1995, the ADCD states that its complaint concerns a letter of 21 September 1995 from the Director of hospitals in the Region of Vejle to the members of the "ERFA-gruppe", a group for the exchange of information and experience. A translation of this letter can be found in the appendix to this report.
2. 233. By way of background information, the complainant indicates that, on 9 August 1995, it had initiated a boycott against the Hospital of the Region of Vejle, instructing its members not to enter into any employment contracts with the Hospital because its job descriptions for clinical dietitians implied that they were employed in work for which they were not skilled and educated and that they were in fact employed as catering officers. Four dietitians were subsequently dismissed on 11 August 1995 and a case has been brought by the complainants to the High Court of the Western Circuit in this regard arguing that the revised job descriptions imply a significant change in the employment relations of clinical dietitians contrary to Danish labour law. This case is still pending.
3. 234. According to the complainant organization, the press showed a considerable interest in this matter and held a number of interviews with their president and vice-president. Correspondence then took place in September 1995 between the Director of Health of the Vejle Region and the legal counsel for the complainant organization in which the complainant organization was requested to elaborate upon and prove a number of statements which it had made during these interviews.
4. 235. When the complainant organization became aware of the letter of 21 September 1995 to the ERFA-group which is the subject of this complaint, they wrote to the Director informing him that the statements made therein were incorrect, unspecified and libellous and requested that the letter be revoked. No such action has been taken, however.
5. 236. The complainant organization understands the letter to the ERFA-group to be in reaction to the following: its filing a writ with the High Court of the Western Circuit; its initiating a boycott against the hospital of Vejle; and its interviews with the local press. The complainant affirms that it is an organization of clinical dietitians for the furtherance and defence of the interest of clinical dietitians covered by the scope of Convention No. 87 and yet the letter of 21 September presents the complainant as a grass roots organization without respect for Danish labour market principles. According to the complainant, the Director's letter to the ERFA-group violates Article 3(2) of Convention No. 87 by interfering in the rights of the complainant organization to carry out its administration and activities free from interference by the public authorities, as well as Article 2 of Convention No. 98. The complainant organization also states that this letter violates Article 4 of Convention No. 98 whereby, according to the complainant, the Hospital of the Region of Vejle is obliged to encourage and promote the full development and utilization of machinery for voluntary negotiations between the Hospital and the complainant. The complainant organization adds that this letter constitutes an especially severe harassment since it has been sent to an undefined group of members of the ERFA-group.
6. 237. The complainant organization clarifies in its communication of 9 July 1996 that the case brought before the high court concerns questions relating to the individual rights of the four dismissed dietitians and does not actually challenge the libellous statements made in the Director's September letter for which no legal action has yet been taken at the national level. Furthermore, the complainant organization emphasizes that it does not dispute the right of the Hospital Director to exchange views and information, including critical views, with the ERFA Group. The complaint focuses rather on the harassing tone and the unsubstantiated, incorrect kind of information given which, in the complainant's view, constitutes serious harassment and impairs its right to freedom of association with respect to hospitals in Denmark.
7. 238. Finally, the complainant organization indicates that it organizes more than 90 per cent of all clinical dietitians in Denmark and that, while it is correct that it is not a party to a collective agreement with the Hospital of Vejle, it is incorrect and harassing to describe the organization as having no competence whatsoever, particularly as it may be presumed that the Director's letter was sent to all other public hospital directors in Denmark.

B. The Government's reply

1. 239. In its communication of 28 June 1996, the Government confirms the circumstances surrounding the boycott initiated on 9 August 1995 and affirms that the Hospital Director's letter of 21 September informed the members of the ERFA-group of the disagreements between the Hospital of Vejle and the Association of Danish Clinical Dietitians (ADCD), including the work stoppage in August.
2. 240. The Government states that it will not make any comments on the questions relating to the pending legal action concerning the job description of dietitians, as it considers that it would be more appropriate to await the court's decision. It therefore limits its reply to the matters concerning the letter of 21 September.
3. 241. The Government considers that the disagreement is originally the result of the break-off of certain members of the Danish Dietetic Association (DDA) to create their own association, the ADCD. At that time, the DDA had a collective agreement with their employer (the Association of County Councils in Denmark) which the employer decided to maintain to cover the members of the ADCD. While under Danish law, a "breakaway union" may seek to obtain its own collective agreement, there is no obligation on the employer to enter into one, particularly if the work in question is already covered by an agreement.
4. 242. In such situations, the Association of County Councils generally enters into collective agreements only with the organizations which represent the majority of a given staff group. Any minority organizations are encouraged to make demarcation agreements as a basis for the allocation of negotiation rights. The counties cannot and are not allowed to interfere with the union affiliation of the staff and it is contrary to Danish law to take union affiliation into consideration in connection with the recruitment of employees in the public sector. Accordingly, it would be contrary to Danish law if the Hospital Director in his capacity as a public sector employer has encouraged the members of the ERFA-group not to employ dietitians. Moreover, it is contrary to the Act on Protection against Dismissal on Grounds of Union Affiliation to dismiss an employee because he or she is a member of an association or union or of a specific association or union.
5. 243. The Government admits that the letter of 21 September expresses criticism with respect to the activities of the ADCD. It adds, however, that these comments should be seen in conjunction with the ongoing dispute of whether the dietitians are more or less qualified than the catering officers and whether it is, therefore, justified that the catering officers are the superiors of the dietitians. Whether the letter also includes a hidden request not to hire employees who are members of the ADCD can presumably only be determined in a legal action.
6. 244. The Government also finds it difficult to see how the letter can be perceived as an interference in the internal affairs of the ADCD, particularly since it was not sent to the members of the Association.
7. 245. The Government recalls that certain aspects of this matter are currently the subject of a pending legal action and therefore suggests that consideration be given to letting this matter await the High Court's decision.
8. 246. In summary, the Government considers that: the core of this matter is a dispute between the DDA and the ADCD; while it is fully legitimate for the ADCD to seek recognition and try to obtain its own collective agreement, the employer would naturally try to take its stand on the collective agreement with the DDA and avoid entering into additional collective agreements concerning, at least to some extent, the same work; and while the tone of the letter of 21 September is no doubt critical with respect to the activities of the ADCD, this should be seen in the light of the ongoing dispute and it cannot be determined on the existing basis whether an unlawful encouragement has been expressed not to employ members of the ADCD.
9. 247. In its communication of 8 August 1996, the Government notes the issues raised by the complainant organization concerning admissibility and recalls that no attempt has been made to ascertain whether the contents of the letter are contrary to Danish law. The Government also notes that it is the view of the complainant that the letter does not include a hidden request not to hire employees who are members of the ADCD.

C. The Committee's conclusions

1. 248. The Committee notes that the allegations in this case refer to the contents of a letter from the Director of Hospitals in the Region of Vejle to the ERFA-group which, according to the complainant, unduly interferes with its right to organize its activities and its collective bargaining rights.
2. 249. Firstly, as concerns the Government's initial indication that certain aspects of this matter are currently the subject of a pending legal action and that consideration should be given to letting this matter await the High Court's decision, the Committee notes that the case brought before the court does not concern the letter of 21 September which is the subject of this complaint but rather the question of whether the revised job descriptions for clinical dietitians contravene Danish law. The Committee does not, therefore, consider that the outcome of the court case would affect its examination of the complaint. As concerns the fact that no appeal has been made at the national level concerning the contents of the letter, the Committee would recall that although the use of internal legal procedures, whatever the outcome, is undoubtedly a factor to be taken into consideration, it has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures. (See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, Annex I, para. 33.)
3. 250. As concerns the allegation that this letter constitutes a violation of the hospital's duty to encourage and promote machinery for voluntary negotiations, the Committee notes the Government's indication that, when there is a situation where there is a breakaway union, the Association of County Councils would generally enter into collective agreements only with the majority organization, encouraging minority organizations to make demarcation agreements as a basis for the allocation of negotiation rights. It further notes, however, that the letter from the Hospitals' director states: "the eligible negotiator for the dietitians is the Danish Dietetic Association (DDA) which negotiates the collective agreement. However, most dietitians are not members of this association, but of ADCD which does not have any competence whatsoever." (Emphasis added.)
4. 251. Since dietitians, as a category of workers, appear to be most represented by the ADCD yet not recognized by the hospital director, the Committee would recall the principle according to which employers, including governmental authorities, should recognize for collective bargaining purposes the organizations representative of the workers employed by them. The competent authorities should, in all cases, have the power to proceed to an objective verification of any claim by a union that it represents the majority of the workers in an undertaking, provided that such a claim appears to be plausible. If the union concerned is found to be the majority union, the authorities should take appropriate conciliatory measures to obtain the employers' recognition of that union for collective bargaining purposes. (See Digest, op. cit., paras. 821 and 824.) The Committee therefore requests the Government to ask the competent authorities to take the necessary measures to ensure that the ADCD is not discriminated against by the employer in relation to collective bargaining, particularly as the hospital director himself has admitted that it is the most representative organization.
5. 252. As concerns the effect of the Director's letter on the complainant organization's right to carry out its activities without interference as provided for under Article 3(2) of Convention No. 87 and Article 2 of Convention No. 98, the Committee notes that the Government admits that this letter is critical of the activities of the ADCD but must be seen in the context of the ongoing dispute. Given that the complainant actually states in its second communication that there is no dispute as to whether the letter includes a hidden request not to hire employees who are members of its organization but rather claims that the letter impairs their own rights as an organization towards hospitals, the Committee notes that the complaint does not raise any claim of anti-union discrimination. If any dispute were to arise in this regard, the Committee considers that the question of whether the letter might actually lead to discrimination against ADCD members can only be determined by the courts. As concerns the complainant's right to organize its activities freely under Article 3 of Convention No. 87, the Committee does not see how the letter, which was not sent to the members of the ADCD, could interfere with the organization's internal affairs. Finally, the Committee considers that the mere expression of criticism in the particular circumstances of this case cannot be seen as interfering in the organization's rights with respect to the other hospitals in violation of Article 2 of Convention No. 98.

Z. ANNEX

• Appendix
• Vejle County
• Vejle Hospital
• The management of the
• hospitals in the middle zone
  21. 21 September 1995
• To the members of the experience exchange group
• Dear colleague,
• I write to you in the light of some very bad experiences we have had here at
• Vejle Hospital with the Association of Danish Clinical Dietitians (ADCD).
• You may also expect to experience their strange behaviour which is well beyond
• common practice and decency.
• At this hospital the matter has had the unhappy ending that we have had to
• dismiss all our dietitians because of illegal refusal to obey instructions,
• and the Association has subsequently dragged everybody's name in the mud.
• The Association has brought a test case alleging that dietitians cannot be
• organised as part of the catering department/kitchen, which they have been at
• Vejle Hospital for 15-20 years, and seem to be at the central hospitals in
• western Denmark in general.
• As a consequence of this, ADCD is of the opinion that by definition catering
• officers are unqualified to be in charge of the dietitians. The argument is
• that their period of training is not as long as that of dietitians. The
• dietitians have then made great efforts to demonstrate this.
• The eligible negotiator for the dietitians is the Danish Dietetic Association
• which negotiates the collective agreement. However, most dietitians are not
• members of this association, but of ADCD which does not have any competence
• whatsoever.
• After having made the acquaintance of ADCD, I must conclude that the
• Association lacks knowledge and respect of the most basic rules and
• contractual relationships in the labour market.
• On the basis of my own experience I believe that you should be very much aware
• of any measures taken by the Association in relation to your hospital - as
• well as any "management problems"/"cooperative problems" in your catering
• department, where the catering officer and the members of the Association are
• players.
• For your information, I send you a press release and an official statement on
• our "case".
• Yours sincerely,
• (Signed) Chief Executive Officer.