Definitive Report - Report No 262, March 1989

1. 93. By a communication dated 26 April 1988 the WCOTP submitted a complaint of violations of freedom of association in Norway.
2. 94. The Government forwarded its observations to the Office in a communication dated 6 October 1988. These observations were received too late for the matter to be considered by the Committee at its meeting in November 1988 (paragraph 6 of the Committee's 259th Report, which was approved by the Governing Body at its 241st Session (Geneva, November 1988)).
3. 95. Norway has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant's allegations

1. 96. The complaint arises out of salary negotiations in the Norwegian public and local government sectors which took place in March and April 1986. Among the unions involved in these negotiations was the Norwegian Union of Teachers (NL), which is an affiliate of the WCOTP. By late April, the negotiations had reached a state of deadlock. On 12 May 1986 NL served strike notice upon the employers. On 22 May, a substantial proportion of the membership of the union went on strike. Other groups of public sector workers were engaged in industrial action at around the same time. These included air traffic controllers, railway engineers, employees of various public agencies (including the petroleum directorate, which has responsibility for health and safety matters on North Sea oil and gas platforms), nurses, employees of social welfare and child-care agencies, local government workers, power station staff and employees of local harbour boards.
2. 97. Early in June the Government announced that it would introduce a special Bill to refer the various disputes to compulsory arbitration by the National Wages Board (NWB), and proscribing all further industrial action pending the outcome of the arbitration proceedings. The Bill applied to the entire public sector, including teachers, but the complainant cites press reports which suggest that this was by no means a foregone conclusion (Dagbladet, 6 June 1986):
   • The most difficult decision to make concerned the inclusion of teachers. The teachers' strike as such does not endanger life, health or security and Mr. Haraldseth (the relevant government Minister) said that it had been considered leaving them (teachers) out. However it was eventually decided that members of NL should be covered by the legislation, apparently because teachers from a trade union which was affiliated to the Federation of Norwegian Professional Associations (AF) were also involved in the dispute. For technical reasons the legislation would have applied to all AF affiliates, and it was considered inappropriate that NL should be permitted to continue the strike alone. The Bill became law on 12 June 1986. All industrial disputation stopped, and the NWB handed down its decisions on 3 October 1986.
3. 98. As regards the teaching sector, the Board reached definitive conclusions in relation to certain of the matters in dispute. However it also recommended that a bipartite committee be set up to examine a number of issues relating to the working conditions and pay of teachers. This Committee commenced operation in December 1986 and submitted its report on 15 October 1987. Shortly afterwards, NL put forward a number of claims which were intended to bring the 1986 negotiations to an end.
4. 99. Negotiations on the basis of these claims were due to commence on 23 November 1987. At the first meeting of the negotiating committee government representatives asked each of the unions concerned for a formal undertaking to the effect that they would not initiate any strike action whilst the negotiations were on foot. All of the unions, apart from NL, complied with this request. NL had not actually made any central-level decision to take industrial action at this stage, but felt that as a matter of principle the making of such a declaration should not be a precondition of continued negotiations.
5. 100. The Government then applied to the Labour Court for a ruling to the effect that there was a peace obligation during the currency of the negotiations. NL cross-filed seeking the dismissal of the Government's claim, and an order to the effect that the Government had acted unlawfully in trying to make the peace obligation a precondition for the resumed negotiations. In its judgment of 7 December 1987 the Court unanimously found in favour of the Government on all counts.
6. 101. On 24 and 25 November 1987 (i.e. after the Government had issued its peace obligation ultimatum, but prior to the determination of the Labour Court) some members of NL went on strike. The union publicly dissociated itself from this action.
7. 102. On 16 December 1987 the government negotiators presented their final offer in the form of an ultimatum. NL regarded this offer as wholly unacceptable, and on 22 December 1987 the Executive of the union decided to call a general strike of teachers on 14 and 15 January 1988. In the early part of January the union was informed that the Prime Minister would shortly make an announcement about the Government's response to ongoing problems in the teaching sector. In anticipation of this initiative, the Executive called off the strike on 11 January 1988. However, many members of the union regarded the Government's response as inadequate, and in the second half of January there were wild-cat strikes throughout the education sector. The Government refused to resume negotiations whilst these strikes continued. NL tried to persuade its members to return to work. Negotiations recommenced in early February, but were again inconclusive. Eventually, the outstanding issues were referred, with the agreement of all parties, to a Special Board for determination.
8. 103. The Special Board handed down its decision on 15 April 1988. It reached definitive conclusions on certain issues, but referred a number of matters back to the parties for further negotiation.
9. 104. The WCOTP alleges that the Government's decision to refer the dispute to binding arbitration in June 1986, and events subsequent to the decision of the NWB in October 1986, are incompatible with a number of provisions of the International Labour Code:
   • - Article 3(2) of Convention No. 87 which directs the public authorities to refrain from any interference which would restrict or impede the exercise of trade unions' right to organise their activities and to formulate their programmes;
   • - Article 8(2) of Convention No. 87 which requires that the law of the land must not be such as to impair the guarantees set out in Convention No. 87;
   • - Article 11 of Convention No. 87 which obliges ratifying States to take "all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise";
   • - Article 4 of Convention No. 98 which requires the adoption of measures appropriate to national conditions to encourage and to promote the full development and utilisation of machinery for voluntary negotiation between employers and unions with a view to the regulation of terms and conditions of employment by means of collective agreements; and
   • - Article 5(2) (d) and (e) of Convention No. 154 which state that collective bargaining "should not be hampered by the absence of rules governing the procedure to be used or by the inadequacy or inappropriateness of such rules" and that "bodies and procedures for settlement of labour disputes should be so conceived as to contribute to the promotion of collective bargaining".

B. The Government's reply

1. 105. There is no significant difference between the Government and the complainant either as to the circumstances surrounding the decision to refer the dispute to compulsory arbitration in June 1986, or as to the course of events since that time. However there is marked disagreement as to the interpretation which ought to be placed upon those events, and as to their significance in relation to the application of the principles of freedom of association.
2. 106. The Government points out that the entire system of industrial relations in Norway is based upon recognition of the principle of free collective bargaining, including the right to strike. The Government goes on to explain that Norwegian law draws a distinction between disputes of right and disputes of interest. These latter include disputes concerning the conclusion or amendment of collective agreements, and subject to adherence to the relevant rules relating to negotiation and compulsory mediation, it is quite in order for the parties to have recourse to industrial disputation in relation to such disputes. Disputes relating to the interpretation or validity of collective agreements are regarded as disputes of right, as are disputes as to matters upon which the parties are free to negotiate during the currency of an agreement. Industrial action in relation to disputes of right is not permissible - rather they must be resolved either by negotiation or by recourse to the Labour Court.
3. 107. The Government accepts that in a society which recognises the right to free collective bargaining (including the right to strike), it is inevitable that "innocent" third parties may sometimes have to endure considerable inconvenience as a result of the exercise of these rights. However, from time to time strikes or lock-outs may occur which generate problems of such magnitude that the public interest requires that there be some curtailment of the right to take industrial action. This has been recognised by the supervisory agencies of the ILO, which have accepted that restrictions upon the right to strike may be permissible in relation to public servants engaged in the administration of the State, and to essential services in the strict sense of the term.
4. 108. The Government also points out that there is no permanent legislation in Norway which prohibits industrial action even in relation to public servants or to essential services. Nor is there any provision for the reference of such disputes to compulsory arbitration. Instead, the Government examines each dispute on its merits. If the consequences of any dispute appear to be such as to endanger the life, personal safety or the health of the whole or part of the population then the Government introduces special legislation proposing that the dispute be referred to the National Wages Board for settlement. The Government claims that there is broad support for this approach, as is evidenced by the fact that where such measures have been introduced, they have been endorsed by large majorities in the Parliament.
5. 109. The Government also draws attention to the fact that there are very close inter-relationships between collective bargaining in the various parts of the public sector in Norway, and also between the public and local government sectors. This had the consequence that when, in May and June 1986, the Government was confronted by large-scale disruption throughout the public and local government sectors it had to look at the consequences of that disruption taken as a whole. Some of the disputes - notably those involving air traffic controllers, railway engineers, port workers, power station personnel and employees of public agencies such as the petroleum directorate - were of such a nature as to merit legislative intervention in their own right. On the other hand, the effects of some of the disputes could, taken in isolation, have been endured. However when viewed from a broader perspective even they became unacceptable.
6. 110. In the opinion of the Government, these close connections between the various disputes mean that "it must be acceptable in relation to Conventions Nos. 87, 98 and 154 to consider the damaging effects of the strikes in the public sector as a whole", and to deal with all of them on the same legislative basis.
7. 111. Turning to the decision by the NWB to refer a number of outstanding issues to a bipartite committee, the Government points out that this recommendation was in accordance with both parties' claims before the Board. Furthermore, it is clear that any negotiations which were to take place on the basis of the committee's report were to be subject to a peace obligation. This is because the negotiations would take place during the currency of an agreement, and would deal with matters which the agreement expressly stated to be subject to further negotiation. In other words, they related to disputes of right.
8. 112. According to the Government, the unrest in the schools in late 1987 was such that it was appropriate for the Government's representative to insist upon a no-strike commitment as a precondition of further negotiations on the basis of the bipartite committee's report. It would have been quite impossible for the Government to negotiate under threat of illegal strike action. This position was vindicated by the Labour Court.
9. 113. Put simply, the Government considers that the negotiations which followed the report of the bipartite committee, and which led to wild-cat strikes in the early part of 1988, have no connection with the right to free collective bargaining as laid down in the relevant ILO Conventions. Responsible organisations must follow the rules and procedures set out in legislation and in the basic agreements between the industrial parties. Collective bargaining with a right to industrial action is connected with the conclusion or revision of collective wage agreements. Negotiations during the currency of an agreement are subject to a peace obligation.

C. The Committee's conclusions

1. 114. The Committee recalls that on three occasions in recent years it has dealt with cases concerning essentially similar legislative intervention in the collective bargaining process to that which forms the basis of the present complaint. In all three cases the Committee found that the legislation in question was inconsistent with the principles of freedom of association (see Case No. 1099 (217th Report of the Committee, approved by the Governing Body at its 220th Session (May-June 1982)), Case No. 1255 (234th Report of the Committee, approved by the Governing Body at its 226th Session (May-June 1984)), and Case No. 1389 (251st Report of the Committee, approved by the Governing Body at its 236th Session (May 1987))).
2. 115. In the present case, the Government does not suggest that the strike action in the education sector in May-June 1986 in itself constituted any threat to the life, health or security of the community. Indeed, as the complainant has pointed out, a government Minister expressly acknowledged this at the time the legislation was introduced. However, according to the Government, the decision to refer the teachers' dispute to compulsory arbitration must be looked at in the context of the widespread industrial disputation throughout the local government and public sectors at that time. Viewed in this light, the decision is said to be entirely consistent with ILO standards.
3. 116. For present purposes, it is not necessary for the Committee to express any view as to whether legislative intervention might or might not have been justifiable in relation to some of the areas which were of particular concern to the Government. The Committee would, however, point out that in previous cases it has determined that employees engaged in the hospital sector, water supply and air traffic control can be regarded as engaged in an essential service in the strict sense of the term (see Freedom of Association: Digest of Decisions and Principles of the Freedom of Association Committee, 3rd edition, paragraphs 409, 410 and 412). On the other hand, general dock work, petroleum production, teaching and transport have not been regarded as essential services for these purposes (see Digest, paragraphs 402, 404, 405 and 407).
4. 117. The Committee recognises that in certain highly exceptional circumstances the dislocation caused by industrial action in a number of "non-essential" sectors may cumulatively create a state of emergency such as to justify some curtailment of the right to strike - especially if the disputation is of extended duration (see Digest, paragraphs 423, 426 and 428). However, the Committee does not consider that the effects of industrial disputation in Norway in May-June 1986 were such as to justify resort to compulsory arbitration in "non-essential" sectors such as teaching. Even assuming that there was a possible basis for intervention in relation to certain sectors which could, prima facie, be regarded as "essential", it does not follow that the effects of the strikes in the teaching sector were such as to justify intervention in that area. The validity of this proposition is in no way dependent upon whether the strikes in the teaching sector are viewed in isolation or as part of a broader pattern of industrial disputation in the local government and public sectors.
5. 118. As regards events subsequent to the decision of the National Wages Board in October 1986, the Government is of the view that there is no basis for complaint because by law all negotiations during the currency of an agreement are subject to a "peace obligation".
6. 119. The Committee has, on several occasions, accepted as a temporary restriction on strikes, provisions prohibiting strike action in breach of collective agreements (see Digest, paragraph 392). However, to be acceptable, any such restrictions must be imposed only in respect of agreements or awards which are themselves the product of processes which are consistent with the principles of freedom of association.
7. 120. The Committee has already expressed the view that the decision to refer the dispute in the teaching sector to compulsory arbitration is inconsistent with the principles of freedom of association. This has the inevitable consequence that any "award" or "agreement" which emanates from that process of arbitration cannot be said to be the product of processes which are consistent with these principles. It follows that they did not create a situation in respect of which it is permissible to proscribe the right to take industrial action.
8. 121. The Government points out that that part of the decision of the NWB which provided for the establishment of a bipartite committee, and enjoined the parties to negotiate on the basis of its report, was in accordance with claims submitted to the Board by both the unions and the Government. In the opinion of the Committee, this factor has no bearing upon the compatibility or otherwise of the peace obligation with the principles of freedom of association. Not unreasonably, the unions appear to have assumed that they needed fully to participate in the procedures of the Board in order to protect and to promote the interests of their members. Such participation cannot be said to estop a subsequent complaint to the effect that the entire arbitral process was incompatible with international labour standards.
9. 122. The issues raised in this case, and in Cases Nos. 1099, 1255 and 1389, clearly bear upon the manner and extent to which Norway gives effect to its obligations under Conventions Nos. 87, 98 and 154. It is appropriate, therefore, that the Committee's report be drawn to the attention of the Committee of Experts on the Application of Conventions and Recommendations.