Rapport définitif - Rapport No. 378, Juin 2016

1. 506. The complaint is contained in a communication dated 17 April 2015 from Industri Energi (IE).
2. 507. The Government of Norway sent its observations in a communication dated 7 March 2016.
3. 508. Norway 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 allegation

1. 509. In its communication dated 17 April 2015, the complainant, IE, explains that it is affiliated to the Norwegian Confederation of Trade Unions (LO) and organizes employees in the Norwegian petroleum and chemical industries; the majority of employees within these industrial sectors are represented by IE.
2. 510. IE alleges that on 21 January 2014, in connection with the 2014 wage settlement, it terminated its “Collective agreement for the laundry and dry-cleaning industry (Agreement No. 105)” with the employers’ organization, the Federation of Norwegian Industries (NHO). The agreement was to expire on 30 April 2014. The negotiations for a new collective agreement started on 16 June 2014, but broke down as early as 17 June 2014. After the failed attempt, on 20 June 2014, IE issued a notice of collective work stoppage for all members covered by the collective agreement, and issued a notice of collective resignation on 29 August 2014 for 200, members divided among 17 companies. The mediation started on 3 September 2014, and ended on the early morning of 5 September 2014 without the parties reaching an agreement. A strike was thus initiated at the start of the business day on 5 September 2014.
3. 511. As some companies affected by the strike offer laundry services for the health sector, an issue soon arose as to whether the strike, in a worst-case scenario, could put the life and health of the population at risk by not supplying clean laundry to hospitals, etc.
4. 512. The complainant explains it has been a long-term practice in connection with strikes within the Confederation of Norwegian Business and Industry to have multipartite committees that process applications from companies concerning dispensation to conduct work that would normally be affected by the strike, but where societal interests indicate that the activity should be partly or fully exempted from the strike. In order to alleviate the situation at the health trusts, IE was prepared, as in previous strikes, to grant dispensations for laundry/dry-cleaning companies so that clean laundry could be supplied to the health trusts. Several applications for such dispensations were also received during the period from when the notice of collective resignation was issued. The complainant provides a list of nine applications. According to the complainant, and as reflected in the list, the NHO, with the exception of two applications where a request for further information was made, responded negatively.
5. 513. The complainant submits a copy of a letter dated 9 September 2014 addressed to the Ministry of Health and Care Services in which the Norwegian Board of Health Supervision indicated that “the risk at [that] time [was] significantly higher for situations which may endanger life and health” and that it has been “reported that the Federation of Norwegian Industries [was] not contributing toward using the dispensation scheme in order to prevent such situations from occurring”. IE indicates that the Minister of Labour and Social Affairs received a message from the Norwegian Board of Health Supervision stating that a continued strike would create a confusing and unpredictable situation for health trusts and nursing homes in the counties of Rogaland, Vest-Agder and Nord-Trondelag and could, in turn, constitute a risk to life and health. The Minister, having heard the parties, noted that there was no possibility of reaching an agreement as the employers’ side refused to change its view on granting applications for dispensations. The Minister warned that in these circumstances, the dispute would be resolved through a compulsory arbitration. A resolution to this effect was made by the Cabinet on 19 September 2014.
6. 514. IE cites the following paragraphs of the Royal Decree imposing compulsory arbitration, in which the Government explains the grounds for intervening:
   • The Ministry of Labour and Social Affairs’ understanding of the situation, based on the Norwegian Board of Health Supervision’s assessment and the stalemate situation, is that the consideration for life and health indicates that the labour dispute between Industri Energi and the Federation of Norwegian Industries must be resolved without further industrial action.
   • Norway has ratified a number of ILO Conventions that safeguard the right to organise and right to strike (Convention Nos 87, 98 and 154). As the Conventions have been interpreted by ILO bodies, there are strict requirements for intervening in the right to strike, but intervention is nevertheless possible if the strike puts the life, health or personal safety of the entire or large parts of the population at risk. Article 6(4) of the Social Charter under the Council of Europe contains an equivalent provision that protects the right to strike. However, Article 6 must be viewed in the context of Article G, which allows for restrictions that are prescribed by law and are necessary in a democratic society for the protection of the rights and freedoms of others or for the protection of public interest, national security, public health, or morals.
   • The Ministry of Labour and Social Affairs is of the opinion that a decision to have compulsory arbitration in the present labour dispute is within the framework of the Conventions Norway has ratified. Should a conflict be proven between international Conventions and Norway’s use of compulsory arbitration, the Ministry of Labour and Social Affairs nevertheless believes that it is necessary to intervene in the dispute.
7. 515. IE argues that the employers involved in the dispute upset the entire balance of power in a legitimate industrial action by refusing to process dispensation applications. The complainant further argues that by doing so the employers gambled with people’s life and health, which forced a situation where the Norwegian Board of Health Supervision had no other option than to report that there was a risk to life and health. The labour dispute thus ended on 10 September 2014.The National Wages Board rendered its decision in the dispute on 9 December 2014, and thereby set the terms of the new collective wage agreement.
8. 516. IE explains that the Norwegian labour law system recognizes the right to organize, the right to negotiate collective agreements and the right to strike. For employees in the private sector, the procedures for collective bargaining are laid down in Act No. 1 of 5 May 1927, relating to labour disputes, which contains rules regarding, e.g. notices of collective work stoppage, compulsory mediation and the peace obligation. When entering into collective wage negotiations, the parties are entitled to use industrial action in line with the set procedure, which, according to IE, has been followed in this case. IE further explains that pursuant to the Act, trade unions have a peace obligation during negotiations for collective agreements until compulsory mediation has been implemented. If mediation is unsuccessful, either party may legally pursue industrial action such as strike, lockout or use other industrial action to force the opposing party into a collective agreement. The complainant argues that in this case through the use of compulsory arbitration, the authorities have prevented the use of legitimate industrial action. It further indicates that Norway has no permanent legislation concerning compulsory arbitration: the latter must be adopted as a provisional scheme or by statute in each individual case.
9. 517. The complainant points out that it does not dispute the Norwegian Board of Health Supervision’s assessment of the situation: as long as the employer refused to forward the received dispensation applications, as long as a minimum service was not in place, and as long as the available contingency laundry companies remained unused, there was a risk of elevated danger to the life and health of the population. However, IE is of the opinion that this was a deliberate and calculated action on the part of the employers, which cannot be viewed as anything other than an “application’’ to the Government for compulsory arbitration. This “application” was “granted” by the authorities almost immediately through the decision to end the strike through compulsory arbitration. IE points out that the issue is thus whether the Government is obliged to ensure that employers cannot provoke a risk to life and health in an industrial dispute outside “essential services” so that the State is not forced to invoke compulsory arbitration.
10. 518. IE stresses that the Committee has addressed the use of compulsory arbitration in labour disputes in Norway on multiple occasions in which the Committee maintained that the use of compulsory arbitration may only be permitted under the following circumstances: (1) if the parties themselves request it; (2) if the labour dispute includes public services that involve civil servants acting on behalf of the State; and (3) if the dispute concerns “essential services” in the strict sense of the term, i.e., services the interruption of which would expose the life, health or personal safety of all or parts of the population.
11. 519. IE considers that the fact that the consequences of a given strike, within a service or enterprise that is not deemed to be “essential”, lead to a risk to life and health, does not mean that the service or enterprise will inherently be deemed to be “essential”. It points out that the Committee has not addressed other cases where the laundry and dry-cleaning industry was deemed to be an “essential service” in the strict sense of the term. The complainant thus concludes the laundry/dry-cleaning industry should not be deemed an “essential service” and thus, workers’ the right to strike in this industry should not be completely restricted.
12. 520. According to the complainant, Norwegian law has developed a practice of multipartite dispensation scheme on a voluntary basis between parties; in general, the employer is neither obliged to apply for dispensations nor use them. Nevertheless, the use of dispensations has, for quite some time, and until the case in question, been common practice during strikes. The dispensation scheme is probably the most important instrument the parties can use to avoid putting life and health at risk during an industrial action. IE argues that if one party is willing, from the outset, to put the life and health of the population at risk by refusing dispensations, the result will be a compulsory arbitration. This, in turn, means a weakened right to strike with a direct impact on the right to organize. Control over the dispensation scheme thus provides opportunities to manoeuvre a conflict into compulsory arbitration. IE indicates that within the health sector, dispensations have proved necessary in order to maintain operations during industrial action. The legal requirement concerning the obligation to provide prudent health services does not cease during a strike, but individuals who are on strike will in most situations be relieved of their personal responsibility. The employer has a set of instruments available to satisfy the health trusts’ prudence requirement, even during a strike. However, dispensations are also used in sectors other than the health sector. In the transport sector, for example, it is normal to issue dispensations for the transport of vital medicines.
13. 521. IE indicates that in the National Wages Board decision of 9 December 2014, the NHO describes the situation as follows:
    • During the mediation, the Federation of Norwegian Industries stated that IE’s striking employees could result in problems for suppliers to nursing homes and hospitals both in Levanger and Stavanger. Of the 16 companies affected by IE’s notice of collective work stoppage and collective resignation, the Federation of Norwegian Industries received dispensation applications from a total of nine enterprises.
    • There are strict criteria for granting dispensation applications, and several of the applications did not contain sufficient information to provide an adequate basis for decision-making in relation to the criterion concerning risk to life and health. Several of the applications were also expressed in fairly general terms without detailed information, which complicated the Federation of Norwegian Industries’ assessment. Due to the lack of indication of both which functions and on what basis they were applying for strike exemption, it was absolutely necessary to obtain additional information before the applications could be processed.
14. 522. The complainant claims, however, that the real reason for the employers’ organization to deny dispensation is clearly expressed by the CEO of the NHO (as published on a website of a Norwegian broadcaster):
    • However, in addition to the labour dispute, there is a principal disagreement between the parties concerning how the strike is carried out. The reason is that the Federation of Norwegian Industries does not want to issue dispensations to the striking employees, even if the situation at Stavanger University Hospital (SUS) should develop into an issue of life and health. We are rejecting dispensations as they come in, because we can’t have a strike where Industri Energi more or less speculates in dispensations. They take people out on strike, and then they’re granted dispensation; that’s a hopeless situation.
    • But what if the authorities declare a risk to life and health?
    • If that happens, we believe the State must intervene with compulsory arbitration. This is why we have an institution called compulsory arbitration.
15. IE argues that what the NHO’s CEO describes as a “hopeless situation” is actually the union’s desire to establish a practice where the life and health of the population is not exposed to risk.
16. 523. In this context, the complainant advocates for a statutory authority for minimum services in order to supply goods and services to the health sector and any other sector and to ensure that the right to strike is not jeopardized by actions or omissions by the employer which create situations where the life and health of people are at risk. The complainant stresses that the Norwegian authorities have not, in spite of repeated recommendations from the ILO, established schemes for the determination of minimum services in cases that fall outside the scope of “essential services”, but where the industrial action nevertheless may affect important societal interests or endanger the life and health of all or part of the population. IE thus argues that Norway has disregarded its obligations pursuant to Conventions Nos 87 and 98 by not establishing schemes that enable the State to limit the effects of an industrial action in instances where life or health may be at risk for all or part of the population without restricting the right to strike.
17. 524. The complainant recalls that the Committee has recommended on several occasions to implement a legal system for the determination of minimum services, which can be a good alternative in situations where a full restriction on the right to strike would be inappropriate. The complainant argues that instead of depriving employees of the right to strike, the State should ensure that the enterprise can supply sufficient services to sectors where a risk to the life and health of people may arise during an industrial action. A minimum service can be a tool for all parties, both to ensure that the life and health of people are not put at risk and that the right to strike is protected. The complainant further argues that it is important that provisions concerning minimum services are established plainly and clearly, are followed up stringently and are communicated to the affected parties well before an industrial action takes place.
18. 525. In that regard, IE refers to the Committee’s Digest of decisions and points out examples where the Committee has considered that minimum operational services could be provided, which, in its understanding, include a ferry service, ports, underground railway, transportation of passengers and commercial goods, postal services, refuse collection service, the mint, banking services, petroleum sector services, education services, and animal health services.
19. 526. The complainant argues that, as stated above, the scheme was already recommended to the Government by the Committee in Case No. 3038 [372nd Report]:
    • (b) Regretting that, despite the recommendations it has previously and repeatedly made in this respect, the Government failed to negotiate a minimum service in the sector with the parties concerned, and convinced that such a way forward would be more conducive to harmonious industrial relations in the oil and gas sector, the Committee encourages the Government to examine the possibility of introducing a minimum service in the oil and gas sector in the event of industrial action, the scope or duration of which may result in irreversible damages; in this regard, the trade union organisations should be able to participate, in the same way as employers and the public authorities, in defining the minimum service, and any disagreement as to the number and duties of the workers involved shall be settled by an independent body.
20. 527. IE further argues that in Case No. 2484 [see 344th Report], the Norwegian authorities stated that agreements concerning such minimum services should be entered into by the parties before and not during a conflict to which the Committee responded:
    • 1094. ... While noting the Government’s concern that the decision as to the provision of a minimum service should have been made by the parties themselves, the Committee considers that, in the absence of any agreement by the parties in this regard, an independent body could have been set up to impose a minimum service sufficient to address the safety concerns of the Government, while preserving respect for the principles of the right to strike and the voluntary nature of collective bargaining. While the Committee does consider that, ideally, the minimum services to be provided should be negotiated by the parties concerned, preferably prior to the existence of a dispute, it has considered that disagreements as to the number and nature of the minimum service may be settled by an independent body and recognizes that the minimum service to be provided in cases where the need arises only after a prolonged duration of the strike can only be determined during the dispute. The Committee therefore requests the Government to ensure in the future that, where the prolonged duration of a strike may pose a risk to the public health and safety, consideration will be given to the negotiation or determination of a minimum maintenance service rather than imposing an outright ban on the industrial action through the imposition of compulsory arbitration.
21. 528. As to how such a scheme can be established, the complainant refers to the paragraphs of the Committee’s Digest.
22. 529. Addressing the issue of implementation, the complainant explains that schemes similar to minimum services are not unknown in Norway and can be agreed on locally or are statutory for some sectors. For examples, section 3-3 of the Basic Agreement between the LO and the NHO allows individual employers to enter into local agreement concerning work that is necessary in order to prevent danger to life and health or substantial damage (the complainant points out, however, that this provision is limited from a material standpoint to circumstances that involve the business and not the effects of a conflict on a third party). Within the petroleum sector, there are currently two regulations that govern this issue: mobile facilities (platforms, drill ships, etc.) are subject to the Regulations relating to manning of mobile facilities adopted pursuant to the Act relating to ship safety and security; offshore petroleum activities are, in general, subject to the Regulations relating to health, safety and the environment in the petroleum activities in general and at certain offshore facilities. Both regulations are examples of statutory minimum service to be provided during industrial action. The regulations include provisions about safety, safety staffing plans, working environment, health, external environment and financial assets during operation as well as during industrial action, and thus have a perspective different from a traditional minimum service which aims at ensuring that a strike does not endanger people’s lives or health.
23. 530. IE discusses the role of the Norwegian Board of Health Supervision and indicates that the basis for its activities is to ensure that health trusts provide the services they are required to, and that these services are prudent. According to IE, the Board also recognizes that strike is a legitimate instrument according to international law. Through its supervisory function, which over time has grown more and more independent of the parties to the conflict, the Norwegian Board of Health Supervision maintains a dialogue with the parties and assess the prudence of the activities. The Board intervenes and, if it is considers necessary, orders the health trust to rectify any deficiencies. If the Board believes that there is a clear and immediate danger to the life and health of people, it will report it to the Ministry of Health and Care Services. In such cases, the complainant argues that the authorities should be able to influence the use of dispensations without having to intervene with compulsory arbitration in order to stop the strike.
24. 531. Further in this respect, IE indicates that the role of the Board is also emphasised in the 2013 FAFO (research foundation) report on security guard strike in 2012:
    • The Norwegian Board of Health Supervision will always be involved in an industrial dispute if there is a risk that the industrial dispute may endanger life and health. When a tariff negotiation ends in mediation, and there is a risk that a strike will affect important societal functions, the Board of Health Supervision will contact the parties and inquire as to whether they have prudent routines for handling the situations that may occur during a strike. In this meeting with the Board of Health Supervision, the parties must account for their routines, including routines for processing dispensations, and which measures, if any, they have initiated in order to prevent hazardous situations. The Norwegian Union of General Workers was in contact with the Board of Health Supervision before the security guards went on strike, and gave an account of the union’s routines. The Board of Health Supervision can intervene directly vis-à-vis health trusts if there is a danger to life and health. As regards other types of institutions that in one form or are affected by a strike, the Board of Health Supervision’s mission will be to monitor the situation, receive any reports from involved stakeholders and the local county medical offices, and pass these on to the Ministry of Health and Care Services, which is the Board’s paramount authority. If the Board of Health Supervision’s assessment of the situation is that life and health may be at risk, the Board will report this immediately, so that both the Ministry of Health and Care Services and the Ministry of Labour and Social Inclusion are informed. The Minister of Labour and Social Affairs will then consider whether the report provides reason to propose compulsory arbitration.
25. 532. In the light of the above, IE queries whether the Board of Health Supervision can be said to be obliged to – within its area – ensure that the parties to an industrial dispute act in a manner that does not endanger the life and health of the population; if the answer to this question is negative, whether it ought to have such an obligation. IE argues that such an obligation could theoretically be derived from both the consideration for the mentioned minimum prudent services, but also from Norway’s obligation to ensure that the right to strike does not become illusory.
26. 533. The complainant also observes the section 1-3(2) of the Health Preparedness Act contains a statutory basis for demanding that the supply of services and other benefits be maintained in crisis situations. The Ministry can lay down regulations to stipulate that businesses that provide materials, equipment and services of significance for the health and social sectors, shall be covered by the Act. According to IE, the national legislation thus prescribes a minimum standard that must be maintained. The Health Preparedness Act contains provisions for how this standard shall be ensured. In other words, in IE’s view, there has also been ample opportunity within the health sector to establish minimum services.
27. 534. The complainant argues that the authorities should establish a general legal basis for ensuring that minimum services prevent situations causing a danger for life or health in connection with industrial actions. A compulsory minimum service could be stipulated by the relevant supervisory body in the event of a strike, if its length and scope could result in a danger to life and health. The minimum services must, however, be limited to what is strictly necessary in order to avoid situations where life or health could be in danger. In such a scheme, the employers’ and employees’ organizations would be recommended to work with the authorities to define the need, scope and practical implementation. The complainant alleges that if the Norwegian authorities had established a scheme, where the parties could determine together the minimum service that is necessary, to maintain in the event of a strike in the laundry and dry cleaning industry, the life and health of people would not have been at potential risk, and there would have been an actual right to strike.
28. 535. IE further points out that the health institutions did not prevail themselves of the “back-up laundry agreements” which could have provided replacement for some of the companies affected by the strike and prevented partly or completely the potential risk to life or health. The back-up laundry service agreements have become common between laundry/dry cleaning services, especially for laundry services that supply the health sector. A back-up laundry service agreement is, in brief, a mutual agreement concerning production support between different laundries in the event of machinery malfunctions, breakdown, fire or a general need for relief over the short or long term. When needed, the support enterprises will intervene in the affected party’s delivery obligation. The Norwegian Laundry Service Quality Organization (NVK) has prepared, in 2011, the industry standard for laundry services that handle textiles for health institutions. The standard has now been implemented as a requirement in most public tenders for laundry services in the health sector. For this reason, virtually everyone who wants to compete for laundry services for health institutions are members of the NVK and one of the requirement to be a member of the NVK is to have a back-up laundry service agreement. All laundry services that applied for dispensation during the strike were members of NVK, and thus had a back-up laundry service agreement. In this context, the complainant questions whether the authorities should have an obligation to, or be allowed to, order laundry services to use their back-up agreements if neglecting to do so would endanger the life or health of people.
29. 536. The complainant argues that the procedural system to declare a strike contains a major flaw when it comes to a sector where the health or life of the population could be at risk that further hinders the right to strike. The current law in Norway stipulates that the notice of collective work stoppage constitutes the framework for which employees can legally be included in a strike or lockout. All employees covered by the notice of collective work stoppage must be taken out in the relevant strike or lockout, unless the parties have agreed otherwise. The notice of collective work stoppage is thus binding once it has been issued. A notice of collective work stoppage stipulates the scope and timing of the industrial action. A party cannot unilaterally withdraw or only implement parts of the notice of collective work stoppage without approval from the other party. Neither party may unilaterally change the consequences of an issued notice of collective work stoppage.
30. 537. A practice has been established between most parties to a labour dispute where, in addition to the actual notice of collective work stoppage, one must, at a later date, issue a final notice of collective resignation. This notice fixes the time of stoppage and indicates which employees and companies will be subject to the industrial action. Notices of collective resignation are currently not regulated by law. While this system is generally balanced and functional, it does not take into account, and thus contains no mechanisms to avert situations where the life and health of the population may be at risk. This is an inherent and fundamental weakness of the system. From the procedural standpoint, it should include regulations that give the parties the opportunity to adjust the content and scope of initiated industrial actions where the development of these industrial actions endangers the life and health of people.

B. The Government’s reply

1. 538. In its communication dated 7 March 2016, the Government recalls that the dispute arose during the revision of an agreement between IE and the NHO for laundries and dry-cleaners, in connection with the 2014 collective wage settlement. After the negotiations broke down, the National Mediator issued a temporary work stoppage ban on 23 June 2014 and summoned the parties to mediation after the summer. On 29 August 2014, the employee side demanded that mediation be discontinued, and announced a collective work stoppage for 190 members. The mediator then had four days to bring the parties to an agreement. The mediation concluded without result on the morning of 5 September 2014. IE implemented the announced strike on the same day.
2. 539. The Government explains that the strike affected employees in 15 laundry and dry-cleaning firms, mainly in Bergen, Stavanger and Trondheim. The strike primarily impacted laundries and dry-cleaners that provided services to private businesses. Certain health institutions also were among the affected customers. The Government points out that the strike rapidly led to difficulties for the Stavanger University Hospital and two nursing homes in Kristiansand. The health authorities followed the situation at the health institutions. In the evening of 9 September 2014, the Norwegian Board of Health Supervision reported to the Ministry of Health and Care Services that the risk of endangering life and health was substantially elevated. Nursing homes and health trusts in Rogaland, Vest-Agder and Nord-Trondelag counties had reported that they were approaching a situation where life and health could be endangered. It was also reported that the NHO refused to use the dispensation scheme to prevent such situations from arising.
3. 540. The Government indicates that a shortage of working clothes or patient clothing would have caused the health trusts to implement measures to restrict their activities in order to ensure prudent operations. Activities in hospitals would have had to be transferred to other facilities that were not affected by the ongoing conflict. Transfer of patients to other institutions that did not have the necessary medical records would have represented a risk of breakdown in the medical treatment. Other patients would have had to be discharged before their treatment was concluded. Moving of patients would have delayed examination and treatment and would have affected ambulance resources. This also would have reduced the capacity to safeguard emergency care. The emergency rooms and the capacity at the hospitals would also come under pressure.
4. 541. While the Norwegian Board of Health Supervision did not receive reports of specific situations where the life and health of people had been endangered, it considered the situation to be difficult to follow and unpredictable. This was due to the uncertainty regarding the consequence of the measures implemented by the health service to safeguard operations and it was amplified by the uncertainty associated with the question of when the firms could resume delivery of clean laundry, and the institutions could resume normal operations.
5. 542. Meanwhile, according to the Government, the situation between the parties appeared to have reached an impasse. The employer side refused to apply for dispensations, which could have somewhat alleviated the situation at e.g. Stavanger University Hospital. The Ministry of Labour and Social Affairs was in contact with the parties on the evening of 9 September 2014, and inquired as to whether they could envisage finding a solution to the dispute. The parties saw no such possibility. On this basis, the Minister summoned the parties to a meeting on 10 September 2014. Both parties confirmed that they saw no possibility of reaching an agreement. While the employee side indicated its willingness to grant applications for dispensation from the strike, the employer side refused to apply for dispensations. In light of this, and of the Norwegian Board of Health Supervision’s report, the Minister informed the parties that the Government would intervene to propose that the dispute is solved by compulsory arbitration by the National Wages Board.
6. 543. The Government argues that the right to industrial action is not expressly embraced by Conventions Nos 87 and 98, but can be derived from the principles of freedom of association. The principles relating to the right to strike have been progressively developed and the ILO has maintained that the right to strike cannot be considered as an absolute right; it may be subject to restrictions or even a general prohibition in exceptional circumstances. According to the ILO standards as interpreted by the ILO bodies, the consequences of a labour conflict may become so serious that interventions/restrictions on the right to strike are compatible with the principles of freedom of association. When a strike involves public servants exercising authority in the name of the State or essential services in the strict sense of the term, i.e. services the interruption of which would endanger the life, personal safety or health of the whole or part of the population, the exercise of this fundamental right can be restricted or prohibited. According to the ILO interpretation the damaging effects must, in addition, be clear and imminent.
7. 544. The Government submits that in Norway, there are long traditions of collective bargaining and collective agreements. The right to organize and collective bargaining are recognized to be fundamental parts of the Norwegian law and is supported by legislation with procedural rules and institutions for resolving disputes. There are no legal restrictions as to who can form and join trade unions and organizations and there is no interference from the authorities concerning the constitutions and rules of trade unions and organizations. The right to industrial action is part of the right to free collective bargaining. No prohibition against strike or lockout exists, except for the armed forces and senior civil servants. These groups nevertheless enjoy the right to organize and to bargain collectively. The role of the authorities is to pave the way for the social partners to take responsibility especially, for wage-setting through collective agreements. In Norway, this role implies offering good solutions regarding mediation and arbitration to solve disputes of interests and a labour court to solve disputes of law.
8. 545. The Government explains that to balance this wide, unrestricted freedom of organization and collective bargaining, including the right to industrial action, there is, however, a broad consensus developed in Norway that the Government has an ultimate responsibility for preventing labour conflicts from causing serious damage. If the Government considers that a conflict has such damaging effects that the life, personal safety or health or vital public interests are endangered, the Government submits a separate bill to the Parliament, proposing for the strike/lockout in question to be forbidden and for the conflict to be solved by the National Wages Board. Outside the session of the Parliament, these cases are adopted as a Provisional Ordinance (provisional law) by a Royal Decree. The latter was the situation in the case at hand.
9. 546. The Government emphasizes its effort in being in compliance with its obligations under the Conventions. The interpretation of international instruments has to be a living process and discussions will always take place regarding the limits of the obligations when it comes to concrete cases. An industrial action is a means intended to put pressure on the opposite party. A country acknowledging the right to industrial action has to endure the inconveniences/damaging consequences entailed by such actions. However, limits must exist as to the extent of the consequences society has to bear. In principle, this is recognized by the ILO as regards labour disputes involving civil servants acting on behalf of the State and labour disputes concerning “essential services” in the strict sense of the term.
10. 547. The Government observes that IE does not question the assessment of the situation by the Norwegian Board of Health Supervision and admits that given the circumstances, there was a risk of elevated danger to life and health. The Government understands that for the complainant, the intervention through compulsory arbitration in this dispute is not per se the essential point of the complaint; rather, the complainant considers that the authorities should establish a general legal basis for ensuring that minimum services prevent situations endangering the life and health of people in connection with industrial action. Failing to do this, represents, in the complainant’s opinion, a violation of Conventions Nos 87 and 98.
11. 548. The Government does not consider that the Member States are obliged, pursuant to the Conventions, to establish a general legal basis for minimum services connected to industrial actions. The Government argues that Norway has implemented a different system and it cannot be assumed that this system is less in conformity with the mentioned Conventions or puts the employees in a poorer situation concerning industrial action. This system does not deprive the social partners from declaring or implementing industrial action regardless of its consequences.
12. 549. According to the Government, a regulation which implies an obligation to establish minimum services would radically deviate from a system developed in Norway through decades and introduce something quite new. The system of intervention by the Government and reference to compulsory arbitration (adopted by Parliament) is an integral part of the Norwegian labour market model. The Government explains that a rather strictly regulated peace obligation is combined with a rather wide permission to industrial action in connection with the establishment of new collective wage agreements or their renewal. The practice of compulsory arbitration constitutes an outer border of the right to industrial action, where this is necessary to protect essential services.
13. 550. The Government further explains that there is a broad consensus between the political parties and between the social partners regarding the system of the intervention in industrial actions. The system has been assessed from time to time and the social partners have taken part in these assessments. In 2001, an official committee consisting of the leaders of the main employers’ and workers’ organizations and a few experts lodged an Official Norwegian Report. The committee was given a mandate to assess whether the Norwegian negotiation system and the institutional framework surrounding this was well functioning in both private and public sectors. The committee assessed the Norwegian practice regarding authority intervention in industrial actions and referral to compulsory arbitration. Additionally, it assessed the possibility of introducing a system of minimum services during industrial action. The assessments in this respect was not followed up by any specific proposals. The social partners and the experts of the committee were all in all satisfied with the status quo.
14. 551. The Government indicates that another official committee (Holden III) lodged their official report in 2013. Its mandate was to assess the wage formation and the challenges this may create for the Norwegian economy. The committee assessed different sides of the processes regarding collective wage agreements, including the order of negotiation and mediation. All main organizations were represented in the committee. In its unanimous conclusions, the committee indicated that as regards the wage-setting, the system of negotiation functioned well. The question of compulsory arbitration was not considered; in the Government’s opinion, this was because the main social partners had no substantial objections to the practice of interventions.
15. 552. Furthermore, the Government indicates that the proposals on prohibiting industrial action and referring the dispute to compulsory arbitration have always been adopted by a large parliamentary majority in Norway. In the last ten years, these have been adopted unanimously. Hence, there is a broad consensus as regards this model. IE is one of 22 national trade unions affiliated to the LO and organizes 60,000 of a total of about 900,000 LO members. There are many other trade unions in Norway. The opinion of IE is not a sufficient ground for starting a process towards such a radical change of the collective bargaining system. The Government has not received any message from the eight main organizations indicating the need for change in this respect.
16. 553. The Government explains that the right to industrial action has more or less been formalized through a combination of laws and collective agreements. The role of the authorities is to pave the way for the social partners to take responsibility for the wage-setting through collective agreements. The social partners are at the same time expected to act responsibly. It is an assumption that the social partners show accountability and are willing to find solutions on difficult questions and implement solutions through their agreements. The social partners are free to bring the issue of minimum services to the negotiation table. They may further develop the existing agreements in this respect or agree upon new ones and develop further procedures on how to practically handle difficult strike situations. An agreement at the sectorial level may be “tailor-made” according to the needs of the specific workplaces in the sector. A collective agreement may be an even better basis for such services than a legislation, due to the specific knowledge of the parties and a closer ownership to an arrangement. It is expected from the social partners that they are responsible for the wage-setting.
17. 554. With regard to the complainant’s argument that in situations where the employer side has a complete control over the dispensation, the employees are, to a great extent, stripped of their basic right to strike to improve their working conditions, the Government underlines that the parties on both sides are responsible for carrying out a safe and secure industrial action. Trade unions are the first to choose who will participate in a strike and which services will be affected. According to section 17 of the 2012 Labour Disputes Act, an industrial action is implemented for all employees comprised by the notice of collective work stoppage, unless the parties agree otherwise. Pursuant to most collective agreements, it is permitted to limit the number of employees involved in a strike action in a notice. It is a usual practice in Norway not to bring all members of a trade union comprised by a notice of collective work stoppage immediately into an industrial action, but to start a strike involving a limited number of employees and to successively escalate the scope. Consequently, trade unions have a substantial possibility to form an industrial action aiming at avoiding the Government’s intervention. The employee side cannot start a strike without considerations of the consequences and hence can envisage dispensation applications from the employer side. The union must always consider the possibility that the employer side may not agree with regard to the question of dispensation.
18. 555. The Government stresses that in the previous cases, the Committee has maintained that an intervention and the use of compulsory arbitration may be permitted if the labour disputes concerns “essential services” in the strict sense of the term. The ILO has in general explained that the content of this notion to a large extent depends on the particular circumstances prevailing in each country. Moreover, it is said that this concept is not absolute, in the sense that a non-essential service may become essential if a strike lasts beyond a certain time or extends beyond a certain scope, thus endangering the life, personal safety or health of the whole or part of the population. The Committee has also pointed out a long list of services considered as “essential” and likewise a list of services not constituting “essential services in the strict sense of the term”. The complainant referred to this and stated that in their understanding the laundry and dry-cleaning industry should not be deemed an “essential service”. In the Government’s opinion, however, the consequences of an industrial action, and not solely the fact that the employees provide essential services in the strict sense of the term should be taken into consideration when deciding on an intervention through compulsory arbitration.
19. 556. The Government emphasizes that the authorities are not deciding the result of the industrial dispute in cases of intervention by compulsory arbitration. The Provisional Ordinance of 19 September 2014 referred the dispute to be solved by the National Wages Board. The National Wages Board is a permanent voluntary arbitration body appointed pursuant to the 2012 National Wages Board Act. The Board has nine members, of whom five are appointed by the Government for a period of three years. Three of the permanent members are neutral, e.g. independent of the Government and of the organizations. Two members represent the interests of the employers and employees respectively. These members of the Board, however, act in a more advisory capacity and have no right to vote. The parties in the individual dispute each nominate two members of the Board. Only one of the members from each party and the three neutral members are entitled to vote. Additionally, the Board is not bound by the Governmental policy. It decides the disputes brought before it on an independent basis and applies its own discretion.
20. 557. The Government transmits a communication dated 23 December 2015 from the NHO. The latter considers that under the existing legislative framework, trade unions alone make all decisions in relation to strike, including which company will be affected and which employees will participate and argues that it is solely the unions’ responsibility to keep in mind the possible risks to health and safety.
21. 558. The NHO reiterates the long-standing view of the Employers within the International Labour Organization that the right to strike is not embedded in Convention No. 87. In relation to this, the ILO constituents, as from February 2015 (Joint Statement) have agreed to disagree. The Joint Statement did not recognize a right to strike within the scope of Convention No. 87, nor did it legitimize the Committee of Experts’ extended interpretations on the topic.
22. 559. The NHO states that it has no particular concerns regarding the use by the Government of compulsory arbitration in the present case. It argues that the strike was arranged in a way that made it obvious that it would pose a threat to the life and health of the population since the affected businesses were large commercial laundries working for national health institutions.
23. 560. The NHO concludes that it had no obligation to seek dispensations as the framework for dispensation is regulated neither by law nor by collective agreements and the workers on strike were chosen deliberately by the complainant. This system may only be used when both parties consider it necessary and unions cannot discharge their responsibility to conduct a socially responsible strike by referring to the practice of dispensations. The NHO considers the complainant to be solely responsible for the strike endangering the health and life of the population.

C. The Committee’s conclusions

1. 561. The Committee notes that the complainant in this case alleges that the Government intervened in collective bargaining and imposed compulsory arbitration thereby ending strike action in the laundry and dry-cleaning industry. The Committee further notes that some of the laundry and dry-cleaning companies affected by the strike provide services to certain health institutions.
2. 562. The Committee notes the NHO communication transmitted by the Government. The NHO reiterates the long-standing view of the Employers within the International Labour Organization that the right to strike is not embedded in Convention No. 87. In relation to this, the NHO refers to the Joint Statement of the Employers’ and Workers’ groups of the ILO made in February 2015.
3. 563. The Committee notes from the chronology provided by both the complainant and the Government that: (i) the 2014 collective bargaining for a new collective wages agreement between IE and the NHO was unsuccessful; (ii) the mediation that followed ended on 5 September 2014 without the parties reaching an agreement; (iii) on 9 September 2014, the Norwegian Board of Health Supervision reported to the Ministry of Health and Care Services that the risk of endangering the life and health was substantially elevated; (iv) on 10 September 2014, the Minister of Labour and Social Affairs discussed the matter with the parties, which confirmed that they saw no possibility of reaching an agreement: while the employee side indicated its willingness to grant applications for dispensation from the strike, the employer side refused to apply for dispensations; (v) on 19 September 2014, the dispute was referred to the National Wage Board for resolution; and (vi) the Board rendered its decision in the dispute on 9 December 2014 and thereby set the terms of the new collective wage agreement.
4. 564. The Committee observes that both the complainant and the Government agree with the opinion of the Norwegian Board of Heath Supervisions, which concluded that as long as the employer refused to forward the received dispensation applications, as long as a minimum service was not in place and as long as the available contingency laundry companies were not used, there was a risk of elevated danger to the life and health of people.
5. 565. The Committee notes the NHO indication that it has no particular concerns regarding the use by the Government of compulsory arbitration in the present case and considers that under the existing legislative framework, trade unions alone make all decisions in relation to strike, including which company will be affected and which employees will participate and argues that it is solely the unions’ responsibility to keep in mind the possible risks to health and safety.
6. 566. The Committee notes that the Government does not dispute that the right to strike is a fundamental right derived from the principles of freedom of association, but considers that this right can be subject to restrictions or a prohibition in certain circumstances, in particular if a strike involves essential services in the strict sense of the term or if the consequences of the strike give rise to such damaging effects that it endangers the life, personal safety or health or vital public interests.
7. 567. Furthermore, the Committee observes that neither the complainant nor the Government argue that the laundry and dry-cleaning services are inherently essential services in the strict sense of the term, but both accept that the consequences of the full stoppage without dispensation could give rise to a situation where the life and personal safety or health of people might be endangered.
8. 568. The Committee notes, however, that the complainant and the Government differ in the interpretation of the necessity for the Government to impose compulsory arbitration in the circumstances of this case. The Committee notes that the Government considers its decision to refer the dispute to compulsory arbitration to be entirely consistent with ILO standards and puts forward several arguments to justify it. The Government explains that to balance the wide and unrestricted freedom of organization and collective bargaining, including the right to industrial action, there is a broad consensus developed in Norway that the Government has an ultimate responsibility for preventing labour conflicts from causing serious damage. If the Government considers that a conflict has such damaging effects that the life, personal safety or health or vital public interests are endangered, it would submit a bill to the Parliament, proposing for the strike/lockout in question to be forbidden and for the conflict to be solved by the National Wages Board. The Government considers that the Member States are not obliged, pursuant to Conventions Nos 87 and 98, to establish a general legal basis for minimum services connected to industrial actions. The Government argues that Norway has implemented a different system and it cannot be assumed that this system is less in conformity with the Conventions or puts employees in a poorer situation concerning the exercise of the right to strike. This system does not deprive the social partners from declaring or implementing industrial action regardless of its consequences. Furthermore, the Government indicates that there is a broad consensus in the country as regards this model and points out that IE is one of 22 national trade unions affiliated to the LO; there are many other trade unions in Norway. The opinion of IE is not a sufficient ground for starting a process towards such a radical change of the collective bargaining system. The Government has not received any messages from the eight main organizations indicating the need for change in this respect.
9. 569. In contrast, the Committee notes that the complainant submits that instead of imposing compulsory arbitration, the Government should have intervened and imposed minimum services so as to ensure on the one hand, that the dispute does not endanger the life or health of people, and on the other, that workers can exercise the right to strike. IE calls on the Government to establish schemes for the provision of minimum services in situations where an industrial action takes place in services that fall outside the scope of “essential services”, but where the industrial action nevertheless may affect important societal interests or endanger the life and health of all or part of the population. The complainant argues that such schemes exist or are at least legally possible in some sectors (health and petroleum sector). IE further argues that the Government could have used back-up laundry agreements in order to alleviate the situation of potential danger.
10. 570. The Committee recalls, as pointed out by IE, that it has examined several cases concerning Norway where compulsory arbitration was imposed in non-essential services to put an end to a strike. On these occasions, it recalled that it was difficult to reconcile arbitration imposed by the authorities at their own initiative with both the right to strike and the principle of voluntary negotiation [see Case No. 1255 (234th Report), Case No. 1389 (251st Report), Case No. 1576 (279th Report), Case No. 2545 (349th Report) and Case No. 3038 (372nd Report)]. The Committee recalls that compulsory arbitration to end a collective labour dispute and a strike is acceptable if it is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, that is, in the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those services whose interruption 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, fifth (revised) edition, 2006, para. 564].
11. 571. The Committee recalls that any restriction on the right of workers’ organizations to negotiate wages and conditions of employment freely with employers and their organizations can only be imposed as an exceptional measure. Observing that the issue of the use of compulsory arbitration by the Government to end a legitimate strike and impose the terms of collective agreement in order to safeguard public health and safety has arisen in the country on various, while exceptional, occasions, as attested by the previous complaints, the Committee encourages the Government to discuss with the social partners possible ways of ensuring that basic services are maintained in the event of a strike the consequences of which might endanger the life or health of the population.