Informe definitivo - Informe núm. 344, Marzo 2007

1067. The complaint is contained in a communication dated 4 April 2006 from the Norwegian Electricians and IT Workers’ Union (EL and IT Workers’ Union).

1. 1068. The Government forwarded its observations in a communication dated 3 October 2006.
2. 1069. Norway has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 1070. By its communication dated 4 April 2006, the EL and IT Workers’ Union alleges that the Norwegian Government violated Conventions Nos. 87 and 98 by imposing, by an Act of Parliament dated 18 February 2005, a compulsory arbitration to end a legal strike, which started on 24 August 2004 in connection with the revision of a wage agreement in the elevator sector in spring 2004. The strike involved 481 workers (out of 608 employed).
2. 1071. The complainant explains that under Norwegian labour law, the use of compulsory arbitration and prohibition of the strike has to be approved by a special Act of the Parliament. It is for Parliament to decide whether the dispute in question should be solved by compulsory arbitration. However, there is no law specifying the circumstances in which compulsory arbitration can be imposed.
3. 1072. The complainant states that the National Office of Building Technology and Administration (BE), responsible for safety of elevators, concluded, in its letter dated 22 December 2004, that while the strike led to failing maintenance, there was no risk of personal injuries. In its report dated 20 January 2005, the BE stated that the strike had led to inconveniences for an increasing number of persons. It made an assessment of various sectors affected and concluded that public buildings were the most affected. It further pointed out that the lack of reparations and insufficient maintenance would lead, in the long term, to a decrease in the quality of elevators.
4. 1073. When the Government decided to end the strike, it also referred to a letter dated 16 December 2004 from the Norwegian Hospitality Association, which claimed that although responsibility with regard to the security of elevators lays with the owners of enterprises, many undertakings, such as hotels, were put in a difficult situation and might be forced to close, which would lead to dramatic consequences.
5. 1074. The Norwegian Board of Health pointed out that the strike had led to great inconveniences and a difficult life situation for persons who depended on elevators, especially disabled persons, the elderly and families with small children. The strike had also led to difficult working conditions for employees who were dependent on elevators in their work. Allegedly, this led to serious health problems and an increase in the number of sick leave taken by workers.
6. 1075. In a press release dated 24 January 2005, the Government claimed that the decisive factor for imposing compulsory arbitration was the abovementioned report from the BE. According to the press release, while no accidents had been reported, the lack of competent maintenance was dangerous. The Government claimed that the strike would lead to a permanent decrease in the security level of elevators. The press release also referred to the report of the Norwegian Board of Health. Considering these reports, the allegedly deadlocked situation between the parties to the dispute, and the duration of the strike, the Government made a proposal to the National Assembly to refer the dispute to compulsory arbitration and to end the strike. The proposal explained the relevant ILO Conventions, but concluded that the arbitration would not be in breach of the Conventions. Parliament approved the use of compulsory arbitration by a special Act of 18 February 2005.
7. 1076. The complainant considers that the elevator sector is not an essential service. The question, which should be considered is whether the strike endangered the life, personal safety or health of the whole or part of the population. Norway maintains a high security level for elevators. There were no accidents reported during the strike. The complainant disagrees that poor maintenance could lead to potential danger. Indeed, the National Elevator Control Authority was not on strike and worked as usual. Therefore, the question of the duration of the strike put forward by the Government was irrelevant. Agreeing that the strike had led to inconveniences for users, the complainant considers, however, that these inconveniences did not endanger the life, personal safety or health of the population.
8. 1077. The complainant further disagrees with the Government’s qualification of the dispute as deadlocked. It indicates that the parties had several meetings during the strike. The complainant considers that, if the Government was worried about the life and health of the population, it should have tried to establish minimum services instead of using compulsory arbitration to end the strike. Furthermore, despite the absence of an agreement on minimum services, some services were nevertheless provided. In addition, the EL and IT Workers’ Union was ready to continue to provide services in hospitals, as well as for disabled and elderly people. Moreover, during the strike, some elevators were repaired by other companies.
9. B. The Government’s reply
10. 1078. In its communication dated 3 October 2006, the Government expresses its understanding that while the right to industrial action is not expressly provided for by the Articles of Conventions Nos. 87 and 98, the right to strike is considered to be one of the principles of freedom of association. The Government further understands that, according to the ILO supervisory bodies, the consequences of a labour dispute could become so serious that restrictions on the right to strike could become compatible with the principles of freedom of association. When a strike involves public servants engaged in the administration of the State or 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, restrictions or prohibitions of strikes are considered acceptable by the ILO supervisory bodies.
11. 1079. The Government stresses that Norway makes great efforts to comply with ILO Conventions. Interference in a labour dispute is made only when life and health or important public interests are endangered. The Government considers that its interference to impose compulsory arbitration by an Act of 18 February 2005 does not violate Conventions Nos. 87 and 98.
12. 1080. The Government indicates that the dispute arose in connection with the 2004 revision of the Elevator Agreement between the EL and IT Workers’ Union and the Lift Contractors Association (HLF)/Technical Entrepreneurs Association (TELFO). Ninety members of the EL and IT Workers’ Union went on strike on 24 August 2004. The conflict gradually extended, by both strike and lock-out, and, by 1 December 2004, it involved 481 out of 608 lift installers. The conflict affected the functioning of lifts, escalators and rolling hoops. An increasing number of installations were out of order and the conflict caused inconveniences for a number of people. Many old and disabled persons were isolated in their homes. In December, several lift contractors sent out letters to their customers recommending that they stop those lifts that were not supervised by installers during the period of the dispute.
13. 1081. During the dispute, on several occasions, the state mediator consulted the parties. However, his attempts to bring the parties to agreement were unsuccessful. The parties were also invited to a meeting with the Minister of Labour and Social Affairs on 21 December 2004. The Minister urged the parties to find a solution to the deadlocked situation, but to no avail. Despite all these efforts, after five months of unresolved dispute, it seemed clear to the Government that there were fundamental differences in the parties’ points of view. Contrary to the complainant’s opinion, in the Government’s view, the situation between the parties was deadlocked.
14. 1082. At the beginning of January 2005, the Oslo Elevator Control and the Norwegian Elevator Control issued, through the media, a warning of potentially negative consequences due to the lack of supervision and maintenance of elevators. It was emphasized that the Elevator Control did not have sufficient capacity to provide services beyond regular periodic controls and that these controls could not replace the inspections which must be carried out by installers.
15. 1083. A report from the National Office of Building Technology and Administration (BE) of 20 January 2005 stated that, while it was not possible to determine the number of lifts out of order, this number was increasing. As to the question of safety, the BE stated that, while there had not been any accidents reported, it was worried about the lack of supervision and maintenance of lifts and the risk of lift-owners restarting lifts without carrying out adequate inspection first. It also considered that the restarting of elevators by unqualified personnel represented a risk for lift users. The BE underlined that the lack of repairs and maintenance would imply danger of lift stops that could lead to critical situations. According to the Government, the BE found the safety situation severe.
16. 1084. The Norwegian Board of Health reported that the conflict resulted in serious inconveniences and created difficult life conditions for all those dependent on elevators, especially the disabled, elderly people and families with young children. Several people were not able to do their daily tasks, could not get out of their homes and get to their workplaces. While the health authorities had not reported on situations where lifts out of order had caused damage to life and health, they reported severe health strain and an increasing number of sick leave days taken by workers.
17. 1085. After five months of dispute, the situation was still deadlocked. A number of elevators were out of order. The Government could no longer ignore the warnings of various surveillance and control authorities. It therefore decided to propose to solve the five-month long dispute by compulsory arbitration. The Minister of Labour and Social Affairs informed the parties about this decision on 24 January 2005. The Bill was adopted by Parliament and came into force on 18 February 2005. According to the Act, the dispute was referred to the National Wages Board for settlement.
18. 1086. The Government agrees that the elevator sector is not an essential service. However, it considers that the consequences of a strike in this sector might nevertheless become so serious that life, health and personal safety could become endangered. Indeed, the BE concluded that the duration of the dispute entailed such danger. The Government states that contrary to the opinion of the EL and IT Workers’ Union, poor maintenance of elevators represented a potential danger. The BE, which is a national surveillance authority in this field, did report on an increasing safety risk connected to the lifts that were still running. It was not possible for the Government to ignore these warnings.
19. 1087. While the Government agrees with the EL and IT Workers’ Union that the duration of the strike is not an argument in itself to use compulsory arbitration, it considers that the length of the conflict is an important factor as the situation grew more serious in the course of time. If the conflict had lasted much longer, there would have been an obvious risk that the health of especially many of the isolated elderly and disabled persons would have been endangered, both physically and psychologically.
20. 1088. With regard to the complainant’s statement that the Government should have tried to establish an agreement ensuring minimum services instead of using compulsory arbitration to end the whole conflict, the Government indicates that in its understanding of the ILO recommendations concerning minimum services, agreements to that effect should preferably be reached by the parties and, preferably, not during the conflict. As to whether it should have tried to impose minimum services, the Government does not believe that it would have been possible or have had any effect. In its opinion, the responsibility for an agreement on minimum services rests with the two conflicting parties.
21. 1089. The Government is therefore convinced that the imposition of compulsory arbitration in the dispute affecting the elevator sector was in conformity with the principles of freedom of association and Conventions Nos. 87 and 98.

C. The Committee’s conclusions

1. 1090. The Committee notes that this case concerns the imposition by the authorities of a compulsory arbitration procedure to end a strike in elevator services. According to the information provided by the complainant and the Government, the strike, which started on 24 August 2004 in connection with the revision of a wage agreement in the elevator sector in spring 2004, was ended by an Act of Parliament dated 18 February 2005.
2. 1091. The Committee notes from the information provided by the complainant and the Government that both parties tried to reach an agreement: the complainant states that the parties had several meetings during the strike and according to the Government, the mediator’s services were available to the parties and the Minister of Labour and Social Affair met with the parties to urge them to find a mutually acceptable solution. The Committee notes that after five months of inconclusive negotiations, the dispute was referred to the National Wages Board for settlement.
3. 1092. The Committee notes that both the complainant and the Government consider that the elevator services are not essential services in the strict sense of the term where strikes can be restricted or prohibited. The Government considers, however, that the duration of the strike and the increasing safety risk noted by the National Office of Building Technology and Administration could not be ignored. The complainant, on the other hand, stated that the Government should have required minimum services instead of imposing compulsory arbitration. The complainant adds that some services had indeed been provided and that it was ready to continue to provide services in hospitals, as well as for disabled and elderly people. On this point, the Government considers that minimum services should have been determined by the parties themselves without its interference in the matter. Furthermore, it doubts that minimum services would have been sufficient.
4. 1093. The Committee notes that the dispute was referred to the National Wages Board in February 2005. The Committee considers that it is difficult to reconcile arbitration imposed by the authorities at their own initiative with the right to strike and the principle of the voluntary nature of negotiation. It further recalls that compulsory arbitration to end a collective labour dispute and a strike is acceptable if it is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, i.e. in the case of a dispute in the public services involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those services, the interruption of which would endanger the life, personal safety or health of the whole or part of the population [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 564]. While the Committee considers that elevator services are not essential in the strict sense of the term, and taking due note that some of the services were provided over the course of the strike, the Committee does recognize that the lasting absence of qualified maintenance of elevators and provision of basic services could potentially create a danger to public health and safety.
5. 1094. In these circumstances, the Committee wishes to recall that a minimum service may be set up in the event of a strike, the extent and duration of which might be such as to result in an acute national crisis endangering the normal living conditions of the population. Such a minimum service should be confined to operations that are strictly necessary to avoid endangering the life or normal living conditions of the whole or part of the population; in addition, workers’ organizations should be able to participate in defining such a service in the same way as employers and the public authorities [see Digest, op. cit., para. 610]. While noting the Government’s concern that the decision as to the provision of a minimum service should have been made by the parties themselves, the Committee considers that, in the absence of any agreement by the parties in this regard, an independent body could have been set up to impose a minimum service sufficient to address the safety concerns of the Government, while preserving respect for the principles of the right to strike and the voluntary nature of collective bargaining. While the Committee does consider that, ideally, the minimum services to be provided should be negotiated by the parties concerned, preferably prior to the existence of a dispute, it has considered that disagreements as to the number and nature of the minimum service may be settled by an independent body and recognizes that the minimum service to be provided in cases where the need arises only after a prolonged duration of the strike can only be determined during the dispute. In the present case, the Committee regrets that the Government made no attempt to negotiate a minimum service with the parties concerned and, in the event of a disagreement, to refer the matter for determination by an independent body. The Committee expresses its concern that the Act of 18 February 2005 is not in conformity with Conventions Nos. 87 and 98. It recalls that a minimum service could be appropriate as a possible alternative in situations in which a substantial restriction or total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption and considers that measures should be taken to guarantee that the minimum services avoid danger to public health and safety [see Digest, op. cit., paras 607 and 608]. The Committee therefore requests the Government to ensure in the future that, where the prolonged duration of a strike may pose a risk to the public health and safety, consideration will be given to the negotiation or determination of a minimum maintenance service rather than imposing an outright ban on the industrial action through the imposition of compulsory arbitration.
6. 1095. As regards the procedure finally used to settle the dispute, the Committee regrets that no information was provided as to the composition of the National Wages Board or as to the outcome of the arbitration procedure. In this respect, and in the event that an intervention would be necessary for safety reasons, the Committee wishes to recall that as regards the nature of appropriate guarantees in cases where restrictions are placed on the right to strike in essential services and the public service, restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented [see Digest, op. cit., para. 596]. In addition, the Committee wishes to recall that the parties to the dispute should be given every opportunity to bargain collectively, with the help of independent facilitators and machinery and procedures designed with the foremost objective of promoting collective bargaining. Based on the premise that a negotiated agreement, however unsatisfactory, is to be preferred to an imposed solution, the parties should always retain the option of returning voluntarily to the bargaining table, which implies that whatever disputes settlement mechanism is adopted, it should be possible to suspend the compulsory arbitration process, if the parties wish to resume negotiations.