Definitive Report - Report No 291, November 1993

1. 130. In a communication dated 12 November 1992, the Norwegian Union of Marine Engineers (Det Norske Maskinistforbund, DNMF) submitted a complaint of violations of freedom of association against the Government of Norway.
2. 131. The Government supplied its observations on the case in a communication dated 7 May 1993.
3. 132. 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. 133. In its complaint the DNMF alleges that the Government violated Conventions Nos. 87 and 98 by having had recourse to compulsory arbitration in the dispute between DNMF and the National Association of Shipowners (NHO) which occurred in connection with the revision of the wages agreement in the spring of 1992.
2. 134. The DNMF states that it had negotiated on behalf of its members employed by the ferry companies, the coastal steamers, the express ferry companies and the tugs. However, after several meetings, the negotiations broke down and the dispute was sent for conciliation. A strike, which started on 27 April 1992, lasted until 29 April. The national arbitrator's proposed solution to the conflict was distributed to DNMF's members for a ballot. When the time-limit for a reply expired on 22 May, 90.9 per cent of the members who participated in the ballot voted negatively to the proposal.
3. 135. As a result, a new strike was called as from 27 May, prior to which the parties did not succeed in reaching an agreement. This strike included 180 engineers. Moreover, the DNMF had stated during conciliation proceedings prior to the strike that the latter would be escalated to include the members on board the coastal steamers as from 31 May. On 29 May, the NHO stated that 80 engineers would be locked out from their places of work on 2 June. Against the background of this lockout notice and after the strike had lasted only two days, the Norwegian Government asked the Storting (Parliament) to approve a Bill on submitting the dispute between DNMF and NHO to compulsory arbitration. The Act came into effect on 2 June.
4. 136. The DNMF then cites certain passages from documents forming the basis for the Act which give the following reasons for the use of compulsory arbitration:
   • One important factor which has been quite decisive, is that it would appear that the conflict is completely deadlocked and that there are small possibilities to reach a solution after the meeting in the offices of the Minister for Municipal Affairs, and the unsuccessful conciliation attempts on 25 May 1992. The great inconvenience caused to the population along the coast by once more suffering from an industrial dispute has also been taken into consideration.
   • When a strike is taking place once more, and a notice has been given that this strike will be escalated, and with an additional lockout on the part of the National Association of Shipowners from 2 June, the limit has been reached as to what the Government can accept that the population and the communities along the Norwegian coast may be subjected to.
   • The Ministry of Local Government and Labour has studied very carefully whether a decision to use compulsory arbitration in these conflicts may be taken within the framework of the Conventions. The Ministry has arrived at the conclusion that, bearing in mind the type of communities along the Norwegian coast without any alternatives for transport of passengers and goods, the situation is so special that it must lie within the framework of the Conventions to solve the conflicts by means of compulsory arbitration.
5. 137. The DNMF claims that the reasons given for the use of compulsory arbitration are very exaggerated. It points out that it had taken into consideration that there should be alternative communication exactly because of the population. The DNMF also feels that the lockout notice given by the NHO is the main reason for the decision to use compulsory arbitration, and that the Government has played into the hands of the shipowners in this conflict. It adds that it is not a member of LO (the General Confederation of Norwegian Trade Unions), which leads it to believe that there are also political reasons behind the decision to use compulsory arbitration.
6. 138. Furthermore, the DNMF points out that the decision to use compulsory arbitration was not unanimous in the recommendation from the Standing Committee on Local Government and the Environment in connection with the discussion of the Act. The minority in the Committee, the representatives from the Progressive Party and the Socialist Left, voted against the use of compulsory arbitration in this conflict. The DNMF states that the minority supports its viewpoint that compulsory arbitration was not justified in this dispute and attaches to its complaint a copy of the minority's statements in this respect. The members of the minority faction in the Committee put forward the same arguments as the complainant as to why compulsory arbitration was not justified in this dispute, but they give another reason namely, that the Government had not intervened in other recent disputes, inter alia at the refuse collection plant in Drammen where the dispute had caused considerable pollution as a result of uncontrolled discharge of sewage.
7. 139. The DNMF refers to previous cases concerning complaints presented by other organizations against the Norwegian Government for the use of compulsory arbitration. It refers in particular to Cases Nos. 1255, 1389 and 1576 (complaints by the Associated Union of Oil Workers), Case No. 1099 (complaint by the Association of Norwegian Engineers) and Case No. 1448 (complaint by the Norwegian Teachers' Association), where it states that the Committee on Freedom of Association concluded that the Government's use of compulsory arbitration was contrary to freedom of association principles as embodied in Conventions Nos. 87 and 98. The above complaints as well as the present one demonstrate that the Government's use of compulsory arbitration cannot be regarded as isolated cases but as a continuous contravention of the relevant Conventions.

B. The Government's reply

1. 140. In its communication of 7 May 1993, the Government points out that the right to industrial action is not expressly embraced by the Articles of ILO Conventions, but is considered part of the principles of freedom of association. According to ILO standards as interpreted by the ILO bodies, the consequences of a labour conflict may become so serious that government intervention or restrictions on the right to strike are compatible with the principles of freedom of association. Limitations on or prohibitions of strikes are thus accepted when the strike involves: (a) public servants engaged in the administration of the State; (b) 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. According to the ILO interpretation, the damaging effects must, in addition, be clear and imminent.
2. 141. The Government states that the DNMF complaint on the whole gives an adequate description of the development of the conflict, but it adds some supplementary observations. In domestic shipping, the NHO has collective agreements with the following three workers' organizations: the DNMF, the Norwegian Union of Mates and the Norwegian Seamen's Union. In the 1992 negotiations for revision of the wage agreements, the employers came to terms with the seamen, while the two other agreements were referred to mediation. The mediation ended without any positive result on 27 April, and on the same day 600 marine engineers and 1,400 mates went on strike. This implied a full-scale ferry strike, as all mates and 600 out of 700 marine engineers were on strike.
3. 142. As a result, the state mediator made a new mediation attempt on 29 April. The mates accepted a proposal for a solution, and called off the strike. In the subsequent ballot the proposal was accepted by both the mates and the employers. The marine engineers also accepted a proposal for a solution and called off the strike. However, in the subsequent ballot the members rejected the proposal by a large majority. On 22 May DNMF declared that 180 marine engineers would go on another strike from 27 May. A new mediation attempt on the same day failed and the strike was put into effect. During the previous mediation attempt the marine engineers had declared that the announced strike would be escalated on 31 May as the members on board the coastal steamers would be included. Furthermore, on 29 May the NHO declared a lockout against 80 engineers from 2 June. Consequently, the Government put forward a bill to the Storting proposing that the dispute be resolved by the National Wages Board. The Act was adopted by a large majority and entered into force on 12 June 1992.
4. 143. The Government then describes the consequences of the strike and its evaluation of the situation. First, it explains that to understand these consequences, knowledge of Norwegian geography is essential. The coast is extremely long. Many communities are situated on islands. The only connection to the mainland is by boat or ferry. Furthermore, large parts of the coast districts consist of a mixture of steep mountains and long fjords. Long road distances depend on ferries and in many cases no alternative communication exists.
5. 144. The strike by 180 engineers starting on 27 May led to the stoppage of numerous ferry and express ferry connections affecting various counties. Moreover, the announced escalation of the dispute would cause a serious transportation and communication situation in vast areas. For example, the northern part of the Rogaland county as well as the southern parts of Sogn and Fjordane counties would be isolated. Similarly, in Northern Hordaland all transportation would stop, and in More and Romsdal counties essential arterial roads would be blocked. This would seriously affect important industrial operations concerning, for example, the deliveries from the fish-processing industry and the furniture industry, as well as the supplies of food and milk. As industrial activites in these areas operate under difficult conditions in any case, these industries would be injured with a long-lasting ferry strike.
6. 145. Thus the conflict would have caused serious difficulties and damage to the coastal and district areas of Norway. The Government also took into account that one month earlier, these areas had been hit by a full-scale ferry strike which had lasted two days and which had caused serious difficulties for the population and the communities along the Norwegian coast. There was also reason to believe that the conflict would be protracted. Several negotiation and mediation attempts had been made. The employers had entered into new agreements with the two other unions operating on the ferries. The situation thus seemed to have reached a deadlock.
7. 146. The Government points out that another aspect in this situation was the fact that the strike first and foremost hit the third party. Normally, while the third party has to endure some inconveniences due to a strike, the purpose of industrial action is to put pressure on the other party. However, if it is the third party which suffers the greatest loss from a strike, little pressure is put on the employer. In the present conflict the employers suffered only small losses compared to those of the communities along the coast. Since a transportation and communication system is essential in a modern society, especially if there are no alternative means of transportation as is the case in large parts of Norway, the Government argues that its intervention in the ferry conflict in the face of a protracted strike should be accepted as compatible with the Conventions protecting freedom of association.
8. 147. Turning to the DNMF's allegation that the Government's use of compulsory arbitration cannot be regarded as isolated cases but as a continuous contravention of the relevant Conventions, the Government emphasizes that each conflict is examined separately, the consequences of the conflict being the basis of the Government's evaluation. Since it is the extent of the conflict that is decisive, the Government is of the opinion that there is little basis for the DNMF statement. It has also noted with appreciation that previous comments from the ILO concerning the use of compulsory arbitration have been based on specific cases, and should not be seen as an evaluation of the Norwegian collective bargaining system.
9. 148. The Government also refutes the DNMF's allegations that the reasons given in the Bill for the use of compulsory arbitration are very exaggerated, that the lockout notice was the main reason for the decision to use compulsory arbitration and that there were political reasons behind the decision. It contends that it put forward its Bill after a close evaluation of the total situation based on the effects of the strike which was effectuated and the announced escalations including both an extension of the strike actions and the employers' lockout. In this situation it was obviously irrelevant whether the workers were members of LO or not. The Government's sole concern was the effects of the industrial actions.
10. 149. As regards the allegation that during the treatment of the Bill in the Storting, the recommendation to the Storting from the Standing Committee on Local Government and Environment was not unanimous, the Government replies that out of the Committee's 17 members four voted against the Bill. Two of these four representatives rejected Bills proposing compulsory arbitration. Thus, the Act was adopted by a large majority and in the Government's view this reflects the broad consensus in Norway on its practice concerning the use of compulsory arbitration.
11. 150. The Government then goes on to describe the relationship between ILO standards and Norwegian industrial relations practice. As a basic principle, the employers' and workers' organizations are responsible for wage settlements and industrial peace. However, there is broad consensus in Norway that the Government has the ultimate responsibility for preventing labour conflicts from causing serious damage to the society. In the few cases where proposals for resorting to compulsory arbitration have been submitted to the Storting, the Storting has adopted the proposed Act by a large majority. In general, the bargaining system functions well. There are very few labour conflicts, as in almost all cases the parties reach agreement. Awards of the National Wages Board are respected. Only four organizations (all outside LO) have presented complaints to the ILO. In the Government's view, the Norwegian system has great advantages. With no restrictions on the right to collective bargaining, negotiations and cooperation take place at all levels, and most groups have possibilities to influence their working conditions. The right to organize is secured through a diversity of organizations and the Labour Disputes Act of 1927 gives equal rights to all workers' organizations irrespective of size. Likewise, there is a multiplicity of collective agreements. Cooperation in the labour sector covers a broad range of subjects. Several different cooperation procedures exist which may overlap to some extent. In addition to collective bargaining, there is a well-developed system for codetermination which gives employees a considerable share of influence in the enterprises. There is also extended institutionalized cooperation between the organizations and the authorities which includes the whole range of topics within the areas of legislation in general, labour legislation specifically, incomes policy, and so on.
12. 151. The Government strongly emphasizes Norwegian compliance with its international obligations. It states that the fundamental legal principles concerning collective bargaining are fully compatible with the ILO Conventions in question. Still, complaints brought to the ILO have shown that some cases have been at variance with the ILO's interpretation of Conventions Nos. 87, 98 and 154. The Government is concerned because the ILO has taken a different view on the interpretation of the Conventions in question. Against this background, the Government has started to review the alternatives available. The aim is to develop a system for resolving labour conflicts which can satisfy both the ILO's and national concerns. However, it is essential to move carefully in this area due to, amongst other things, the strong position of the workers' and employers' organizations in Norway. Any changes must have their full support.
13. 152. As industrial action is a means of putting pressure on the opposite party, a country acknowledging the right to industrial action has to endure the inconveniences entailed by such actions. The limits on how extensive the consequences are to be for society and the general public, as drawn up by the ILO bodies, have been commented on. According to the Government, there are a number of aspects concerning the effects of industrial actions on a modern industrialized country that call for closer reflection, for example the dilemma of consequences for the third party. The Government argues that there are cases where the consequences for third parties are so extensive that an intervention in the right to strike will be fully in compliance with the Conventions. Another important aspect is the broad consensus among the social partners on the Norwegian system and practice, including the use of compulsory arbitration in conflicts of this kind.
14. 153. The Government concludes by emphasizing that Norway complies with the Conventions it has ratified. However, there is a broad consensus that the Government has an ultimate responsibility for preventing strikes from causing serious damage to society and third parties. The weighing of interests which the Government is expected to make in this connection is very difficult. The Government trusts that the information given demonstrates that the Act imposing compulsory arbitration on the parties in the 1992 marine engineers' conflict was in compliance with Conventions Nos. 87 and 98.

C. The Committee's conclusions

1. 154. The Committee notes that this case involves restrictions on collective bargaining through the imposition of compulsory arbitration by the Government to put an end to a legal strike by marine engineers in May 1992. The Government states that recourse to compulsory arbitration was justified in view of the serious difficulties and damage that a long-lasting ferry strike would have caused to local industries as well as to the population situated along the Norwegian coast, and that its intervention was in compliance with the Conventions protecting freedom of association.
2. 155. The Committee observes that the complainant's and the Government's versions of the events leading up to the imposition of compulsory arbitration are not contradictory. They differ, however, in the interpretation of the necessity for such government intervention. The Government puts forward several arguments to justify its intervention: due to the special geographical features of the country the only connection to the mainland for many communities living on islands along the coast is by boat or ferry; the strike by 180 engineers on 27 May 1992 had led to the stoppage of numerous ferry connections affecting various counties and an escalation of the dispute would mean that large parts of these counties would be isolated; these areas had already been hit one month earlier by a full-scale ferry strike which had lasted two days and which had caused serious difficulties for the communities living along the Norwegian coast; there was reason to believe that the conflict would be protracted; and finally, a transportation and communication system is essential in a modern society, especially if there are no alternative means of transportation.
3. 156. It appears to the Committee from the arguments advanced by the Government that the latter justifies its curtailment of the right to strike by marine engineers by suggesting that the ferry service in Norway is an essential service. The Committee recalls 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 and that transport services are not in themselves essential services in the strict sense of the term (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, paras. 400-410). However, the Committee is mindful of the difficulties and inconveniences that the population living on islands along the coast could be subjected to following a stoppage in ferry services. It considers that, in such a situation, the concerned parties, with the participation of the Government if necessary, should have concluded an agreement on minimum services to be maintained.
4. 157. However, in view of the above considerations, the Committee regrets that the Government did not give priority to collective bargaining as a means of regulating the employment conditions of the marine engineers concerned, but rather that it felt compelled to have had recourse to compulsory arbitration in the dispute in question.
5. 158. More generally, the Committee notes that in the past 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 226th Session, May-June 1984); 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 242nd Session, February-March 1989); and 1576 (279th Report, paras. 91-118, approved by the Governing Body at its 251st Session, November 1991). The Committee therefore considers that the legislative intervention which is the subject of the present complaint is not an isolated case. 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 to refrain in future from using such measures in services that are not essential in the strict sense of the term.
6. 159. The Committee notes the Government's statement that it has started to review 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 that the Government had expressed its intention of proceeding with this review two years ago (see Case No. 1576, 279th Report, para. 117), the Committee 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.