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Suites données aux recommandations du comité et du Conseil d’administration
Suites données aux recommandations du comité et du Conseil d’administration- 27. The Committee last examined this case, in which the complainants
alleged that the Government violated the principle of bargaining in good faith during
the collective bargaining process and extended and renewed the collective agreement
through legislation without consultation of the workers’ associations concerned, at its
October 2014 meeting [see 373rd Report, paras 230–265]. On that occasion, the Committee
expressed the expectation that during the 2014–15 bargaining rounds between the Danish
Union of Teachers (DUT), the Local Government Denmark (LGDK) and the Agency for the
Modernization of Public Administration (Modernization Agency): (a) the Government would
endeavour to promote and give priority to free and voluntary good faith collective
bargaining as the means of determining employment conditions in the education sector,
including working time; and (b) the principles concerning consultation with the
organizations of workers and employers, when drafting legislation affecting collective
bargaining or conditions of employment, would be fully respected.
- 28. In their communication dated 27 May 2015, the complainants provide
additional information. Firstly, they allege that for two years the Government has not
allowed the DUT to contribute to calculations of the financial impact of the statutory
intervention on groups of teachers. In this regard, the complainants explain that
calculations of the costs of possible improvements are generally made in public
collective bargaining on employment, pay and working hours. According to the
complainants, the Ministry of Employment and the public employers stated that they have
applied normal, standard calculation rules, which means that the statutory intervention
has deprived teachers of several hundred million Danish krone, which over time have been
allocated through collective bargaining to improve teachers’ working hours and the
resources released from phasing out the special age reduction for teachers who have
passed 60 years of age. The complainants indicate that since the introduction of Act No.
409, the DUT has repeatedly requested a meeting with the Ministry of Employment in order
to discuss the matter but the meeting was consistently refused. Following the issuance
of the Committee’s recommendations, the meeting finally took place in January 2015.
Despite the purpose of the meeting having been made clear, the Minister of Employment
refused to discuss both the circumstances leading to the statutory intervention by Act
No. 409 and the financial calculation methods applied, stating that he had already
acknowledged that the employee organizations had not been included in the preparation of
the bill and that he had apologised for this. As this was the sole purpose of the
meeting, it was concluded.
- 29. Secondly, the complainants assert that the Government has again
become involved in collective bargaining and has failed to allow genuine and free
negotiations on working hours in the education sector in 2015. In particular, the
complainants allege that although the DUT had put forward a demand that collective
bargaining was to result in a new agreement on working hours to replace Act No. 409,
both employers’ representatives had stated from the beginning of the negotiations that
they could not change the content of the statutory intervention. In order to avoid
subjecting schools to another conflict, lockout or strike, the DUT decided to
participate in the negotiations. In addition, the complainants specify that the
negotiations with the LGDK were influenced by the political interest in teachers’
working hours and in particular, at the moment when negotiators appointed by the
employers and the DUT had completed a draft agreement, the LGDK was contacted by the
Ministry of Finance and urged to change the draft agreement, thus stalling and
prolonging the negotiations (although there is no written evidence, DUT negotiators were
direct witnesses to this interference). It was not possible to negotiate new agreements
on working hours but only to make initiatives to realise the Act locally. According to
the complainants, the Government has been unable to maintain the “arms-length”
principle, has influenced and limited free and genuine negotiations and undermined
collective bargaining in the education sector. As a result, teachers at state schools,
private schools and some adult education institutions are still subject to rigid
regulation of their working hours. The complainants argue that public authorities should
encourage free collective bargaining when they act as employers and have accepted
responsibility to enter into agreements by co-signing them.
- 30. Thirdly, the complainants indicate that even though Act No. 409
stipulates a possibility for the local parties to conclude agreements on working hours,
the Ministry has again advised against concluding such agreements, which weakened the
possibilities for organizations to influence agreements locally and undermined the
entire bargaining model. According to the complainants, this demonstrates the
Government’s need to retain the Act as the foundation for regulating teachers’ working
hours, so that its amendment introducing more teaching hours can still be implemented
using the same number of teachers.
- 31. Fourthly, the complainants indicate that the Government established
an Implementation Committee composed of representatives from the LGDK, the Modernization
Agency, the Ministry of Economic and Business Affairs, the Ministry of Social Affairs
and the Ministry of Education, aimed at ensuring that the Government’s reforms,
including on working time, meet its goals. The complainants further argue that it is
clearly stated that the Implementation Committee is to ensure that Act No. 409 is
realized, which documents that the Government had a clear political goal with its 2013
intervention, which was not just an intervention to stop the conflict for societal
reasons. The complainants also denounce that employer organizations are represented in
the secretariat of the Implementation Committee, while the employees’ organizations are
not, which demonstrates that the Government still has a practice of involving employers
without involving employees’ organizations. In the complainant’s opinion, the Government
has dismantled the Danish collective bargaining model and wrecked any possibility for
concluding collective agreements for a large part of the public labour market.
- 32. In its communication dated 24 September 2015, the Government replies
to the complainants’ additional information and indicates in relation to the first point
that it is aware that the DUT disagrees with the size of economic compensation as a
result of the statutory intervention but that the statutory intervention did not
intervene in the existing collective bargaining rights. It further states that as a
result of the preceding industrial action the parties were no longer committed to the
collective agreements and the standard model has been applied for estimating the value
of changes to the collective agreements. Regarding the second point made by the
complainants, the Government states that collective bargaining in the state sector area
in 2014–15 was conducted within the usual framework and the final result of the
collective bargaining negotiations (encompassing the renewal of the collective
agreements), including a joint non-judicial declaration on working time conditions was
approved by the employees’ organization on 10 April 2015. With regard to the
complainants’ third point, the Government indicates that the collective agreements in
the state sector area stipulate a general possibility for local parties to enter into
agreements which supplement or deviate from the centrally agreed regulations on working
time but that the Modernization Agency has, in its capacity as employers’ association
for the state sector, advised local employers that for the education sector as well as
for the rest of the state sector, it is not the intention that this possibility should
be used to enter into local agreements that restrict the rights of the employers to
allocate and manage the work of the employees. Regarding the fourth point, the
Government states that it set up the Implementation Committee to ensure that the
practical effects of the implementation of the comprehensive reforms of the primary and
lower secondary schools and the vocational education and training, as well as the new
working time regulations, fulfil the objectives set by the Government and the Parliament
but that the Implementation Committee is not linked to the collective bargaining
process.
- 33. In relation to recommendation (a), the Government provides general
information concerning the 2014–2015 collective bargaining in the state, municipality
and regional sectors. It states that concerning the state sector, the Modernization
Agency has informed that collective bargaining was conducted within the usual framework,
which is agreed upon between the Modernization Agency and the Danish Central Federation
of State Employees’ Organizations (CFU) ahead of each bargaining cycle, with the set-up
usually being identical. The general agreement stipulates the termination of collective
agreements and rules of industrial action. In relation to the 2014–15 collective
bargaining in the state sector, the Government states that: exchange of demands and
negotiations between the parties took place; general issues regarding terms of pay and
employment were settled; the general agreement included projects of mutual interest and
a renewal of terms of pay and employment for upper secondary teachers in the state
education sector; secondary agreements of terms of pay and employment between the
Modernization Agency and the individual employees’ organizations were completed by 9
March 2015; a secondary agreement between the Modernization Agency and employees’
organizations representing primary and lower secondary teachers in the state education
sector included a renewal of terms of pay and employment, minor technical adjustments
and a joint non-judicial declaration on working-time conditions; and the final result of
the collective bargaining negotiations was approved by the employees’ organizations as
of 10 April 2015. Concerning the municipality sector, the Government indicates that the
Ministry of Employment does not participate in the proceedings of collective bargaining
and since the LGDK is a private organization, the Ministry has no access to detailed
information on the negotiations, which are closely followed by the media. With regard to
the regional sector, the Government states that the Danish Regions are also a private
organization and the Ministry of Employment has no access to detailed information on the
negotiations. Concerning the 2014–15 collective bargaining in these two sectors, the
Government indicates that: exchange of demands and negotiations between the parties took
place; general issues regarding terms of pay and employment were settled; issues on pay
and employment were settled between the LGDK and the Confederation of Teachers Union
(municipality sector) and between the Danish Regions and the Confederation of Teachers
Union (regional sector); the parties did not conclude a new working-time agreement but a
declaration on working-time conditions was agreed upon; and the final result of the
collective bargaining negotiations between the parties was approved for both sectors on
16 March 2015.
- 34. In a communication dated 10 November 2015, the complainants provide
additional information and claim that the Government’s information in reply to their
communication dated 27 May 2015 is only a general description of the application of the
Danish model of collective bargaining in the public labour market and a description of
formalities in the negotiations and approval of the results agreed on by the parties but
does not address the content of the negotiations. With regard to their first point, the
complainants indicate that the Government’s reply is merely a repetition of its previous
remarks, it does not address the concrete allegations and the Government refuses to
account for the economic aspects of the statutory intervention. Concerning the
Government’s reply to their second point, the complainants denounce that the Government
did not address the main points they have raised concerning the collective bargaining in
2015 but has only mentioned the formal course of the negotiations and given a very
general description of the agreement results. It further asserts that the Government had
adopted the following attitude: as Act No. 409 on working hours in the education sector
had been adopted, there was no intention to let the next round of collective bargaining
(2014–15) change anything. According to the complainant, this attitude also meant that
Local Government Denmark had no mandate to negotiate without the consent of the Ministry
of Finance, which clearly restricts the real and free negotiations. With regard to the
third point, the complainants assert that when legislation de facto authorizes the
parties to an agreement to enter into local agreements regarding working hours, it
should be left to the local parties to an agreement to decide how to apply this option.
Consequently, the complainants allege that in the renewal of the collective agreement in
2015, the Government has failed to afford the negotiators the right to free negotiations
and that the Government maintained that Act No. 409 was adopted with a purpose, which is
still being pursued, and is apparent in the Implementation Committee. According to the
complainants, the Government continues to supervise the implementation of Act No. 409
through the Implementation Committee without demonstrating any willingness to hand over
the negotiations on the regulation of teachers’ working hours to the parties to the
collective agreement and with its statements the Government has confirmed that the
implementation of Act No. 409 has not been and will not be surrendered to the parties
but will be retained by the Government in cooperation with employers’ representatives.
Finally, the complainants indicate that because there is a desire to ensure that
regulations on working hours meet the goals the Government has set in Act No. 409, it is
clear that negotiations on working hours in the education sector are no longer an issue
for the parties to the collective agreement.
- 35. In a communication received on 2 March 2016, the Government indicates
that it does not consider that the communication of the complainants dated 10 November
2015 calls for any further observations from the Government. Accordingly, the Government
states that it does not have any further observations to add to those dated 24 September
2015.
- 36. The Committee duly notes the detailed information provided by the
complainants as well as the Government’s follow-up information and its reply to the
complainants’ communication. With regard to the Committee’s recommendation to promote
free and voluntary bargaining in the education sector in 2014–15, the Committee notes a
divergence of views between the complainants and the Government. While the complainants
allege that the Government became involved in the negotiations with the LGDK and advised
employers against concluding local agreements on working hours, the Government claims
that the 2014–15 collective bargaining was conducted in the usual framework and explains
that the Modernization Agency can, in its capacity as employers’ association for the
state sector, advise local employers not to enter into local collective agreements.
Recalling that Act No. 409 stipulates a possibility to conclude local collective
agreements on working hours, the Committee urges the Government to take the necessary
measures to allow collective bargaining at the local level, including on working time.
The Committee regrets that the Government does not reply to the serious allegations of
its intervention in the LGDK negotiations and of its refusal to hand over negotiations
on the regulation of teacher’s working hours to the parties to the collective agreement
within the framework of the statute, and trusts that in all future collective bargaining
rounds between the parties, the Government will endeavour to promote and give priority
to free and voluntary good faith collective bargaining as the means of determining
employment conditions in the education sector, including working time, and will ensure
that the authorities refrain from any substantial intervention in such collective
bargaining.
- 37. With regard to the Committee’s recommendation to consult workers’ and
employers’ organizations when introducing legislation affecting collective bargaining or
conditions of employment, while noting that no further legislation had been drafted in
this respect, the Committee notes with concern that the Implementation Committee,
established by the Government to ensure the implementation of Act No. 409, is
exclusively composed of the LGKD, the Modernization Agency and government
representatives, whereas employees’ representatives are excluded. The Committee notes
that the Government asserts that the Implementation Committee is not linked to the
bargaining process but was set up to ensure that the practical effects of the
implementation of the comprehensive reforms fulfil the objective set by the Government
and the Parliament, without, however, indicating why representatives of employers’
organizations form part of the Implementation Committee while representatives of
employees’ organizations may not participate in its activities. In this regard, the
Committee wishes to refer to the Consultation (Industrial and National Levels)
Recommendation, 1960 (No. 113), Paragraph 1 of which provides that measures should be
taken to promote effective consultation and cooperation between public authorities and
employers’ and workers’ organizations without discrimination of any kind against these
organizations. In accordance with Paragraph 5 of the Recommendation, such consultation
should aim at ensuring that the public authorities seek the views, advice and assistance
of these organizations, particularly in the preparation and implementation of laws and
regulations affecting their interests [see Digest of decisions and principles of the
Freedom of Association Committee, fifth (revised) edition, 2006., para. 1068].
Accordingly, the Committee expects that the Government will take the necessary measures
to ensure that workers’ organizations are consulted in relation to the implementation of
Act No. 409 and in respect of other initiatives which affect their interests. The
Committee requests the Government to keep it informed of any developments in this
regard.