Report in which the committee requests to be kept informed of development - Report No 295, November 1994

1. 424. The Norwegian Union of Social Educators and Social Workers (FO) presented a complaint of violation of trade union rights in Norway in a communication dated 7 March 1994. The Government supplied its observations in a communication dated 30 September 1994.
2. 425. Norway has ratified the Freedom of Association and protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 426. The complaint is related to an alleged violation by the Government of Conventions Nos. 87 and 98 in using compulsory arbitration against a legal strike in connection with the revision of wage agreements in the local government sector in the spring of 1992.
2. 427. FO explains that it is affiliated to the Norwegian Federation of Trade Unions and that its negotiating agent is the Norwegian Federation of Trade Unions' negotiating federation for the local government (hereinafter called LO-K), which is comprised of eight trade unions. The complaint is filed on behalf of three of these which are the constituent parts of FO: Norwegian Union of Social Educators and Child Welfare Workers (NBF), the Norwegian Union of Social Workers (NOSO) and the Norwegian Union of Social Educators (NVF).
3. 428. FO adds that LO-K is one of three negotiating federations for the local government sector with the Confederation of Vocational Unions, Local Government Section (YS-K) and the Federation of Norwegian Professional Associations, Local Government Sector (AF-K). FO goes on to explain that the local government sector (excluding the City of Oslo, which has its own wage agreement, and the teachers who negotiate their wage agreement directly with the central government) is comprised of 265,000 employees. Of these, 139,000 are organized under the umbrella of LO-K. For its part, FO is comprised of professional associations whose members must fulfil educational qualifications such as social educators, social workers and nurses for the mentally subnormal; most of them are found in the child welfare departments, social work and in services for the handicapped, as case officers, in-home visiting and in institutions. Members are to be found both in administrative and in direct client work. FO indicates that the wage agreement which expired on 30 April 1992 and the agreement that ran up to 30 April 1994 were all signed by its constituent parts.
4. 429. FO then explains in detail the circumstances that led to the labour dispute of 1992 between LO-K and the Norwegian Association of Local Authorities (hereinafter called KS). In the spring of 1992, the negotiations on the new wage agreements were broken off without results for any of the negotiating federations. After the employees' organizations notified withdrawal of labour on the part of their members on 29 April 1992, the National Mediator issued a prohibition against work stoppage and summoned the parties to compulsory mediation. No result was achieved at the expiry of the additional mediation deadline, on 27 May. LO-K then walked out of negotiations and the threatened strike of LO-K's members was then called for the same day. LO-K and KS were summoned to a meeting with the Minister of Local Government and Labour, at which the parties made a brief statement on the situation and declared their willingness to attempt another round of mediation. LO-K asked for a new mediation basis; as this proved not to be possible, the Mediator therefore proposed that the mediation continued with the two other negotiating federations, AF-K and YS-K, with whom a recommended proposal had been arrived at.
5. 430. LO-K's members' strike was then an inevitable consequence of the failure to agree on the revision of the wage agreements with the KS. FO states that the strike was a selective one, the first phase having started on 27 May 1992. LO-K called out about 28,000 members, 745 of whom were from FO. Before the strike came into effect the employers were permitted, on the basis of the strike notice, to apply for dispensations. Few were applied for and most of these were granted, primarily to avoid danger to life and health, but also in fields where the strike could cause major damage in other ways (for example, pollution and power supply). Institutions for and services to the elderly and the sick were exempt from the strike. In services for the handicapped, manning reductions were implemented on the basis of individual assessments, in such a way that life and health were properly safeguarded. There was emergency response preparedness in areas such as child protection and social welfare. LO-K's members were well aware of the authorities' frequent recourse to compulsory arbitration and it was therefore their express policy to conduct the strike in such a way that the authorities would be hindered in employing this weapon.
6. 431. FO reports that after almost three weeks of strike, LO-K and KS were summoned to the Ministry for Local Government and Labour on Monday, 15 June 1992, and the Minister received a statement from both sides. Noting that there was no basis for new mediation, the Minister announced that the Government, in an emergency meeting of the full Cabinet the next day, would put proposals for recourse to compulsory arbitration to end the dispute. The Parliament (Storting) considered the proposal for recourse to compulsory arbitration and, by an Act of 26 June 1992, it was decided that the labour dispute should be settled by the National Pay Tribunal.
7. 432. FO points out that compulsory arbitration in labour disputes in Norway is imposed by a special act of Parliament or by a provisional decree of the Government if the Parliament is not sitting. There is no statute that specifies the criteria enabling the authorities to stop a labour conflict by compulsory arbitration. In this case, FO quotes the Government's following justification for proposing recourse to compulsory arbitration:
8. The ongoing strike among members of the LO-K means that in Bergen, Drammen, Porsgrunn, Stavanger, Trondheim, Tromso and Haugesund local government activity (with the exception of the operation of old people's and nursing homes) has been sharply reduced. Municipal offices and kindergartens are closed. Many primary schools have also had to close. The strike has caused problems to all who are dependent on social welfare, only emergency help is being given. The same applied to the child protection services, and rubbish collection and public transport has stopped.
9. The fact that municipal rubbish collecting has stopped in the above-mentioned urban areas has led to public health problems, including offensive smells. The cessation of collection in conjunction with the heatwave means a major hazard of an increase in the rat population and also increased danger of infectious diseases. The Ministry has received reports of a growing rodent population in several urban neighbourhoods. Tromso Municipality has stated that improper storage of rubbish is causing an accentuated fire hazard. The municipal fire and rescue service emphasizes that in some places there is an acute fire hazard.
10. The strike also means that many handicapped children are not receiving the help on which they depend. This in turn means that after almost three weeks of strike and consequent lack of relief, many parents and other carers are very tired. In his report to the Directorate of Public Health dated 15 June, regarding lack of rubbish collection and the situation in the nursing and home care sector, the medical officer of health of Rogoland County concludes that we are quickly approaching the limit of tolerance of the effect of the strike on public health.
11. The strike of in all 1,777 members of the Norwegian Electricians and Power Station Workers at 43 power stations in 16 counties and at Nord-Trondelag's county-owned utilities also means that the power stations are shut down and that - unless dispensation is granted - faults that arise in connection with the power supply are not corrected.
12. ...
13. Several attempts have been made to achieve a solution of the ongoing labour dispute, without success. The situation between the Norwegian Association of Local Authorities and the affected employee organizations appears to be deadlocked. There is reason to believe that the strike may be a long one.
14. Having considered all the harmful effects, which are becoming more and more comprehensive, and the threatened extension, the Ministry therefore considers it right to propose that the wage dispute between the LO-K and the Norwegian Association of Local Authorities be brought before the National Pay Tribunal for resolution.
15. 433. FO claims that this recourse to compulsory arbitration on the part of the Norwegian Government means that the right to strike may be regarded as illusory; the employers can always rely on the authorities intervening. It adds that it also affects the right to bargaining, which under such circumstances cannot be said to be a real one. FO refers to previous cases concerning complaints presented by other organizations against the Norwegian Government for having resorted to compulsory arbitration. It refers more specifically to Case No. 1099 (complaint by the Norwegian Association of Engineers), Cases Nos. 1255, 1389 and 1576 (complaints by the Federation of Oil Workers' Trade Unions) and Case No. 1448 (complaint by the Norwegian Union of Teachers), stating that the Committee on Freedom of Association has criticized Norwegian authorities' recourse to compulsory arbitration, pointing out that this practice was contrary to freedom of association principles embodied in Conventions Nos. 87 and 98.
16. 434. In this particular case, FO states that there was no real hazard to the population's life or health, pointing out that one hour before the Minister warned of compulsory arbitration, the director of public health had stated that the strike posed no hazard to life and health. The council chairmen in the municipalities affected by the strike said the same.
17. 435. FO concludes by pointing out that, even if it has been promised, no document that would form the basis for a debate on the principles of recourse to the right to strike, compulsory arbitration and the relationship to Conventions Nos. 87 and 98 has yet been presented by the Minister of Local Government and Labour to the Parliament.
18. B. The Government's reply
19. 436. In its communication of 30 September 1994, the Government indicates that FO's complaint gives on the whole an adequate description of the development of the conflict, but it adds some supplementary observations. First, it specifies that neither LO-K nor any union forming the negotiating federation, except FO, have asked the Norwegian Confederation of Trade Unions to file a complaint to the ILO.
20. 437. The Government then describes the relationship between ILO standards and Norwegian industrial practice. As a basic principle, the employers' and workers' organizations are responsible for wage settlements and industrial peace. In addition, there is a broad consensus in Norway that the Government has the ultimate responsibility to prevent labour conflicts from causing severe damage to society. In general the Norwegian bargaining system functions well. There are few labour conflicts, as in almost all cases the parties reach agreement. The Government reports that since 1982 ILO has dealt with six complaints against Norway concerning use of compulsory arbitration in labour conflicts, put forward by four different organizations. In the Government's view, the Norwegian system presents great advantages. The right to organize is secured through a variety of organizations. Likewise there is a multiplicity of collective agreements. Norway's Labour Disputes Act of 1927 gives equal rights to all workers' organizations irrespective of size. The Act defines a trade union as "any federation of employees or of employees' associations the object of which is to protect the interest of the employees against their employers". A collective agreement is defined as "an agreement between a trade union and an employer or an employers' association respecting conditions of employment and wages or other matters relating to employment". As a result, any union can demand collective bargaining with the aim of concluding a collective agreement. Whether they succeed is a question of power. To balance out the extreme freedom given to the industrial partners in the bargaining system, the Government points out that it has developed a practice aiming at preventing individual industrial actions from causing severe damage to society.
21. 438. The Norwegian Government strongly emphasizes Norwegian compliance with international obligations. It states that the fundamental legal principles concerning collective bargaining are fully compatible with the ILO Conventions in question. Still, complaints brought before the ILO have shown that some cases have been at variance with the ILO's interpretation of Conventions Nos. 87, 98 and 154.
22. 439. Due to the fact that the ILO has taken a different view on the interpretation of the ILO Conventions in question, the Government indicates, as previously mentioned, that it has started to review possible modifications of the system for resolving labour disputes. The aim is to develop a system which can satisfy both the ILO and Norway's national concerns. The governmental agency, the Labour Law Council, is thus at present preparing a recommendation on the revision of Labour Disputes Act.
23. 440. According to the Government, the 1992 strike by members of LO-K in the government sector sharply reduced the local government activities in the urban municipalities concerned. It caused the closing of municipal offices, kindergartens and primary schools. These close-downs caused problems to all persons who were dependent on social welfare and child protection services. Only emergency help was given. Furthermore the strike led to a full stop in refuse collection and public transport. The cessation of the refuse collection led to public health problems and offensive smells. The full stop in refuse collection combined with a heatwave also caused a major risk due to an increasing rat population and an increased danger of infectious diseases. Reports on improper storage of waste causing an accentuated fire hazard were also received. Furthermore, 43 power stations were hit. Gradually areas around the country would lose their electric power plants as faults arising in connection with the power supply were not corrected unless a dispensation was granted. The consequences of the strike, which lasted for about three weeks (from 27 May to 16 June 1992) thus became gradually more serious. As stated in the Bill, several attempts were made to settle the ongoing conflict, but none of them succeeded. The situation seemed deadlocked, and gave reason to believe the strike would be a longlasting one. Because of the harmful effects, which already were becoming more and more comprehensive, and the announced escalation of the risk, which rapidly would bring about serious consequences, the Government, after a total evaluation of the situation, claims that it was necessary to propose compulsory arbitration to solve the labour dispute.
24. 441. The Government then comments on FO's allegations. First, it points out that the Bill was put forward after a close evaluation of the total situation based on the effects of the strike which was in force and the announced escalation. The Government also considers that FO underscores that, in the parliamentary debate concerning the Bill, the Minister of Local Government and Labour stated that he would immediately initiate the process leading to a document that would be the basis for a debate on the principles of recourse to the right to strike, compulsory arbitration and the relationship to ILO Conventions, but that no such material has yet reached Parliament. For the Norwegian Government, it is important that the basis for a parliamentary debate on these questions reflects the views of both the Government and the workers' and employers' organizations. The Labour Law Council (which consists of representatives of the authorities, the mediation institution and the two major workers' and employers' organizations, i.e. the Norwegian Federation of Trade Unions and the Confederation of Norwegian Business and Industry) is at present preparing a recommendation on a system for the solution of labour conflicts within the framework of a new Labour Disputes Act. It is preferable that changes in this field have a broad support, and the Labour Law Council always seeks to arrive at its conclusions by consensus. The Government predicts that the conclusions reached by the Labour Law Council are expected to be available before the end of 1994.
25. 442. The Government concludes by reiterating that there is in Norway a broad consensus that it has an ultimate responsibility for preventing strikes from causing serious damage to the society and third parties. The weighing of interests which it is expected to make in this connection is very difficult. Industrial action is a means intended to put pressure on the opposite party, and a country acknowledging the right to industrial action has to endure the inconveniences entailed. The Government trusts that the information and considerations given in this statement demonstrate that the Act imposing compulsory arbitration on the parties in the labour conflict in the local government sector in 1992 was in compliance with Conventions Nos. 87 and 98.

C. The Committee's conclusions

1. 443. The Committee first notes that the present case concerns restrictions on collective bargaining through the imposition of compulsory arbitration by the Government to put an end to a legal strike lasting three weeks in connection with the revision of wage agreements in the local government sector in the spring of 1992. The Committee also notes that the complaint was brought by three unions merged into FO.
2. 444. The Committee observes that the complainant's and Government's descriptions of the events leading up to the enactment of the Act ordering compulsory arbitration are not contradictory. The parties, however, disagree on the need and justification for such governmental intervention. The Government mainly argues that the strike sharply reduced the local government activities in the urban municipalities concerned: closing of municipal offices, kindergartens and primary schools. Furthermore it alleges that the strike led to a full stop in refuse collection and public transport. In the proposition accompanying the Bill the Government stated that the strike also meant that many handicapped children were not receiving the help on which they depended. Finally the Government concludes that the situation appeared to be deadlocked and that there was reason to believe that the strike would have been a long one.
3. 445. As the complaint is filed by three associations organizing the work of most social educators, social workers and nurses for the mentally subnormal, the Committee endeavours to limit its observations on the consequences of compulsory arbitration imposed on these groups of professions. Therefore, the Government's allegations relating to problems and inconveniences entailed by a strike in services such as rubbish collection, public transportation, power supply or municipal services which are not part of the complaint are not commented on by the Committee, other unions having apparently accepted the outcome of the compulsory arbitration. The Committee understands on the whole that the Government justifies its legislative intervention by asserting that the services affected by the strike are essential ones. In this context, the Committee wishes to recall that essential services are those services the interruption of which would endanger the life, personal safety or health of all or part of the population (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, paras. 400-410). The Committee has already considered that teachers do not fall within the definition of essential services (see Cases No. 1097, para. 84, 221st Report; No. 1164, para. 343, 226th Report; No. 1173, para. 577, 230th Report; and No. 1448, para. 116, 262nd Report) but has determined that employees engaged in the hospital sectors are engaged in an essential service in the strict sense of the term (see Digest, op cit., para. 409 and Case No. 1448, para. 116, 262nd Report).
4. 446. In the present case, the Committee notes the desirability to give priority to collective bargaining as a means of regulating the employment conditions of the employees, instead of taking recourse to compulsory arbitration to end the dispute, especially since institutions and services for the elderly and the sick were exempt from the strike. The Committee considers that in this particular case the parties should have instead agreed on the exact extent of minimum services to be maintained, since FO was open to granting dispensations and was maintaining minimum services in areas such as services for the handicapped, child protection and social welfare. Even if according to the Committee the right to strike could have been limited or even prohibited in medical or ancillary medical services where the strike was in force, the Committee does not consider that this drastic measure was necessary to end the strike in all the sectors of activities concerned. Therefore, in these circumstances, the Committee considers that recourse to compulsory arbitration to end the labour dispute in some of the activities affected was incompatible with principles of freedom of association.
5. 447. Furthermore, the Committee notes that it has dealt with many cases concerning compulsory arbitration in Norway: Cases Nos. 1099 (217th Report, paras. 449-470, approved by the Governing Body at its 220th Session, May-June 1982); 1255 (234th Report, paras. 171-192, approved by the Governing Body at its 242nd Session, February-March 1989); 1389 (251st Report, paras. 191-214, approved by the Governing Body at its 236th Session, May 1987); 1448 (262nd Report, paras. 93-123, approved by the Governing Body at its 251st Session, November 1991); 1576 (279th Report, paras. 91-118, approved by the Governing Body at its 251st Session, November 1991); and 1680 (291st Report, approved by the Governing Body at its 258th Session, November 1993). The Committee therefore considers that the legislative intervention which is the subject of the present complaint is not an isolated case, although the context of previous cases was to some extent different. In view of the fact that the Government has had recourse to compulsory arbitration on several occasions in recent years, the Committee urges the Government, as it did previously, to refrain in future from using such measures in services that are not essential in the strict sense of the term or when minimum services have been duly secured.
6. 448. Finally, the Committee notes with interest the Government's statement that it has started to examine possible modifications to the system for resolving labour disputes and hopes that the conclusions adopted in the present case, as well as in previous cases concerning Norway, will be duly taken into consideration. Noting however that the Government had expressed its intention to proceed with this review some years ago (see Case No. 1576, 279th Report, para. 117 and Case No. 1680, 291st Report, para. 149), the Committee stresses the importance that this review be conducted in consultation with all parties concerned and once again draws the Government's attention to the fact that the advisory services of the International Labour Office are at its disposal, if it so wishes.