REPRESENTATION (article 24) - DENMARK - C122 - 1999

Report of the Committee set up to examine the representation alleging non-observance by Denmark of the Employment Policy Convention, 1964 (No. 122), made under article 24 of the ILO Constitution by Dansk Magisterforening

Decision

1. Convention No. 122: the Governing Body adopted the report of the tripartite committee. Procedure closed. Conventions Nos. 87 and 98: referred to CFA (Case No. 1958). Report No. 312, November 1998 (Definitive report).

Complaint Procedure

1. I. Introduction
2. 1 In a communication dated 25 August 1997 addressed to the Director-General of the International Labour Office, Dansk Magisterforening, referring to article 24 of the ILO Constitution, made a representation alleging non-observance by Denmark of 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 Employment Policy Convention, 1964 (No. 122).
3. 2. The provisions of the ILO Constitution relating to the submission of representations are as follows:
4. Article 24
5. In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
6. Article 25
7. If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
8. 3. The procedure to be followed in the case of representations is based on the Standing Orders, as revised by the Governing Body at its 212th Session (March 1980).
9. 4. In accordance with articles 1 and 2 of the Standing Orders, the Director-General acknowledged receipt of the representation, informed the Government of Denmark of it, and brought it before the Officers of the Governing Body.
10. 5. At its 271st Session (March 1998), the Governing Body, on the recommendation of its Officers, decided that the representation was receivable. Under article 3, paragraph 2, of the Standing Orders, it was decided to refer the allegations relating to Conventions Nos. 87 and 98 to its Committee on Freedom of Association.(Endnote 1) Under article 3, paragraph 1, of the Standing Orders, a Committee was set up for the examination of the allegations concerning Convention No. 122, composed of Mr. M. SalmenperS (Government member, Finland), Ms. L. Sasso-Mazzufferi (Employer member, Italy) and Mr. U. Edström (Worker member, Sweden).
11. 6. In accordance with article 4, paragraph 1(c), of the Standing Orders, the Government was requested, in a letter dated 7 April 1998, to send its observations on the subject before 15 May 1998.
12. 7. In a communication dated 18 September 1998, the Government furnished its observations on the representation.
13. 8. The Employment Policy Convention, 1964 (No. 122) was ratified by Denmark on 17 June 1970 and is in force in this country.
14. 9. The Committee met on 19 March 1999 to discuss and adopt the present report.
15. II. Examination of the representation
16. 1. Allegations of the complainant organization
17. 10. The complainant organization alleges that the provision of the Act of 27 December 1991 to amend the Consolidated Act on Employment Opportunities for Unemployed Members of the Workforce which established a maximum wage rate for jobs in the public sector within the framework of a job offers scheme, as well as Act No. 1059 of 20 December 1995 to amend the Act on active labour market policy which provided for the offer of "special jobs" to long-term unemployed persons for a period of up to three years, deprives these persons of their right to remuneration and are thus contrary to Convention No. 122. According to the complainant organization, it appears from the "case law of the ILO" that the promotion of productive employment prescribed by Article 1, paragraph 1, of the Convention requires that a participant in special job programmes should receive a wage. In referring to an individual observation appearing in the 1983 report of the Committee of Experts on the Application of Conventions and Recommendations, which considered that workers receiving an unemployment subsidy rather than a wage could not be considered to be in productive and freely chosen employment within the meaning of the Convention, Dansk Magisterforening emphasizes that participants in the special job programmes receive only a subsidy in respect of unemployment benefit, may not supplement their income by another job without losing their status as long-term unemployed, which is the condition of their participation in the programme, and are excluded from unemployment insurance.
18. 2. The Government's statement
19. 11. The Government believes, first of all, that the quotation by the complainant organization of an individual observation by the Committee of Experts in support of its allegations should be seen in the light of its context. The Committee of Experts was at the time referring to a minimum employment programme which was open to everyone and whose participants worked full time for an unlimited period, in exchange for remuneration which was less than half the minimum wage and without benefiting from the social security scheme or paid leave entitlement. The employment schemes introduced in Denmark cannot be compared to such a situation: they are authentic employment-promotion measures which are targeted to a limited group of persons, on a temporary basis, and are accompanied by the payment of a subsidy which is 15 per cent above the maximum rate of unemployment benefit, i.e. a remuneration level equal to the minimum wage established by a number of collective agreements. These temporary programmes are intended to enable participants to get ordinary employment as soon as possible and contribute directly to the observance of Convention No. 122. They improve both the financial situation of long-term unemployed persons and their situation on the labour market. The job offer schemes have substantially contributed to the reduction of unemployment and the reintegration of unemployed persons into the labour market.
20. 3. The Committee's conclusions
21. 12. The Committee notes that the representation concerns the level and method of remuneration of unemployed persons recruited under subsidized job schemes: according to the complainant organization, the fact that participants receive unemployment benefit rather than a wage is contrary to Article 1, paragraph 1, of the Convention. In support of its allegation, the complainant organization quotes an extract from a 1983 report of the Committee of Experts on the Application of Conventions and Recommendations. The Committee believes that the particular case to which the Committee of Experts referred at that time is not comparable to that which exists in the Danish labour market.
22. 13. The Committee recalls that under Article 1, paragraph 1, of the Convention, a State party "shall declare and pursue, as a major goal, an active policy designed to promote full, productive and freely chosen employment". Article 2 stipulates that it "shall, by such methods and to such extent as may be appropriate under national conditions, decide on and keep under review, within the framework of a coordinated economic and social policy, the measures to be adopted" for this purpose, and "take such steps as may be needed, including when appropriate the establishment of programmes, for the application of these measures". In the Committee's view, it is indisputable that job offer programmes for unemployed persons fall within the framework of measures required by Article 2 for the purposes of achieving the objectives set forth in Article 1 of the Convention.
23. 14. The Committee believes that temporary employment programmes to encourage the integration of long-term unemployed persons in the labour market contribute to the achievement of the objectives of the Convention, provided that the Government ensures that the temporary nature of the proposed jobs is respected and that such programmes are not used to fill permanent posts. The Committee notes that the complainant organization does not allege that such abuses have been committed or are likely to be committed.
24. 15. Finally, the Committee believes it must recall that the Committee of Experts, on the basis of the detailed report submitted under article 22 of the Constitution which must be furnished every two years, as well as any remarks made by employers' or workers' organizations, regularly makes observations on the application of the Convention to which the Government is requested to respond. These observations are concerned, in particular, with the manner in which such active labour market policy measures contribute in Denmark to the achievement of the objectives of the Convention.
25. III. The Committee's recommendations
26. 16. The Committee recommends that the Governing Body:
27. (a) adopt this report, and in particular paragraphs 12 to 15;
28. (b) declare closed the procedure before the Governing Body resulting from the representation.
29. Endnote 1
30. The definitive report of the Committee on Freedom of Association on the representation alleging non-observance by Denmark of Conventions Nos. 87 and 98 (Case No. 1958) was adopted by the Governing Body at its 273rd Session in November 1998 (document GB.273/6/2).