Rapport définitif - Rapport No. 265, Juin 1989

1. 62. By a communication of 26 August 1987, the Association of Junior Hospital
   • Doctors in Denmark (AJHD) presented a complaint of violations of freedom of
   • association against the Government of Denmark. It sent additional information
   • and allegations in letters dated 1 October 1987, 8 February 1988 and 13
   • February 1989. The Government sent its observations on this case in
   • communications dated 10 December 1987, 22 November 1988 and 17 April 1989.
2. 63. Denmark 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 Labour Relations
   • (Public Service) Convention, 1978 (No. 151).

A. The complainant's allegations

1. 64. In its communication of 26 August 1987, the AJHD alleges that the
   • Government violated Conventions Nos. 87, 98 and 151 when the Danish Parliament
   • passed, on 8 May 1987, Act No. 246 "on changes in the work scheduling for
   • junior doctors in the public health service and on renewal and extension of
   • their collective agreements" (a copy of the Act is supplied). The Act provides
   • that all collective agreements between the Association of County Councils, the
   • Copenhagen City Authority, the Frederiksberg City Authority and the Danish
   • Ministry of Finance as employers on the one part and the AJHD on the other are
   • extended from 1 April 1987 until 1 April 1989, with certain terms (namely,
   • average weekly hours of work and special salary adjustments) extended until 1
   • April 1991. In addition, under sections 6 and 7 of the Act, the Minister of
   • Finance shall establish a board having equal representation of the parties to
   • determine certain aspects of the working conditions (such as work, timetables,
   • remuneration of doctors on call duty from their residences); the board was to
   • decide these outstanding questions before 1 September 1987, failing which an
   • umpire would be nominated by the board to settle them with binding effect, in
   • other words, through compulsory dispute settlement procedures.
2. 65. The complainant explains that the Act was adopted in order to stop an
   • ongoing legal strike by the AJHD in some specifically designated departments
   • and wards of certain public hospitals. The strike, which had been duly
   • notified in accordance with the law, was originally postponed by the
   • Conciliation Service. When the Public Conciliator, however, failed to help in
   • achieving a solution acceptable to all parties, the AJHD decided to exercise
   • its lawful labour rights and went ahead with the planned strike.
3. 66. According to the complainant, the strike, which was only allowed to last
4. for 22 days, did not affect emergency services and could not in general be
   • said to create a public emergency situation, inasmuch as the AJHD had agreed
   • to maintain emergency services. In the "General Agreement between the
   • Association of County Councils, the Copenhagen City Authority, the
   • Frederiksberg City Authority and the Ministry of Finance on the one part and
   • the Association of Junior Hospital Doctors on the other part" concerning
   • emergency services during the lawful strike, dated 9 March 1987 and a copy of
   • which is supplied, the parties agreed, inter alia, that: in case of disasters
   • all the medical personnel covered by the work stoppage can be called in; and
   • in vital or other situations of urgency the number of employed junior hospital
   • doctors determined by local agreements can be increased for a short period by
   • agreement; and those junior hospital doctors at work may perform the medical
   • work that is vital, that cannot be postponed or is required so as to avoid
   • irreversible health consequences. The complainant states that this agreement
   • shows that out of concern for the general public and the patients involved, it
   • chose not to use its lawful right to strike to the full extent possible.
   • Moreover, the AJHD adds that a large proportion of all hospital doctors in
   • Denmark are civil servants, and as such are not allowed to strike; these civil
   • servants were, therefore, able to augment all emergency services during the
   • strike by the junior doctors.
5. 67. The AJHD considers that the Danish Government chose to end its lawful
   • strike in contravention of international ILO obligations, not to help patients
   • in life-threatening situations, but solely in order to alleviate some
   • potential long-term effects of the strike, in particular the slow building up
   • of queues/waiting lists of people waiting to get medical attention of a
     • non-acute character.
   • 68. The complainant stresses that the forced renewal and extension of the
   • collective agreements to which it was a party was a unilateral government
   • measure which leaves it no opportunities to exercise its right to negotiate
   • fully and the legislative intervention in effect prevents the junior doctors
   • from exercising their right to strike. The AJHD particularly regrets that it
   • was not consulted in advance of the government intervention and had no
   • opportunity to exercise any influence upon the position of the Government.
6. 69. According to the complainant, the Danish Government already has a
   • disreputable record of intervening in the collective bargaining process, and
   • other unions have been subjected to such intervention during 1987. This
   • practice has recently led to criticism from the ILO: the AJHD refers to the
   • complaints lodged with the ILO in 1985 by the Danish Federation of Trade
   • Unions (LO) and the Danish Salaried Employees' and Civil Servants'
   • Confederation (FTF) (Case No. 1338) which gave rise to criticism of the
   • conduct of the Danish Government with respect to its international obligations
   • under ratified ILO Conventions. That case concerned the third occasion of
   • government intervention in matters regulated by collective agreements in less
   • than three years, and, according to the complainant, closely resembles the
   • measures which form the basis of the present case. The AJHD quotes the
   • Committee on Freedom of Association's 243rd Report, which was approved by the
   • Governing Body of the ILO in March 1986 (paragraph 246):
   • The Committee hopes that in the future, no similar measures will be taken to
   • interfere with free collective bargaining or to restrict the right of workers
   • to defend their economic and social interests through industrial action.
7. 70. The AJHD points out that this decision from the ILO Governing Body
   • apparently had no effect on the Government because it intervened again, this
   • time in the junior doctors' dispute. Given the very serious and urgent nature
   • of this case, states the complainant, it requests the Committee to consider
   • sending an ILO representative to Denmark to examine, in direct contact with
   • the social partners and the Government, government intervention in free
   • collective bargaining.
8. 71. On 1 October 1987, the complainant supplied further information on the
   • proceedings before the board set up by Act No. 246 to decide on certain
   • disputed provisions of the extended collective agreement before 1 September
9. 1987. It states that after ten meetings the board found on 31 August that it
   • was not possible to reach any decision, nor was any agreement possible on the
   • nomination of an umpire. The Act provides that in such a deadlock situation,
   • the Conciliation Service shall nominate the umpire. According to the AJHD, on
10. 15 September it was informed who had been nominated as the umpire, but as at
    • the date of its communication, it had not yet been contacted by the umpire for
    • talks on the outstanding issues.
11. 72. In its communication of 8 February 1988, the complainant challenges
    • statements in the Government's reply (a copy of which had been sent to it by
    • the Government), in particular that the strike was responsible for the serious
    • problems facing patients. It also disputes the Government's description of the
    • events leading up to the strike. First, the AJHD points out that, in 1981,
    • junior hospital doctors entered into an agreement - essentially different from
    • the earlier collective agreement - reducing at the request of the employers
    • the schedule of working hours to the same length as worked by other public
    • servants. According to the complainant, the introduction of the new system of
    • working hours gave rise to a number of problems during a transitional phase,
    • but as the new rules were incorporated in schedules, they worked better and
    • better. During the last few years there had also been a formalised
      • co-operation between the National Health Board, the doctors and the employers
    • on the introduction of various training experiments, and on a new planning of
    • work schedules. These were changes which were possible to effect within the
    • framework of the collective agreement of that time.
12. 73. Secondly, the AJHD states that any problems of this nature cannot
    • warrant intervention by statute. As outlined in the Government's reply, the
    • intervention meant that salaries rose to a level corresponding to the level
    • agreed for other academic staff in public employment, that working hours were
    • reduced, and that a number of other issues were referred for resolution to a
    • board with equal representation of the parties. This board - as noted earlier
      • - failed to reach agreement, and on 30 December 1987, an umpire made his award
    • (a copy of which is provided). The award is considered by the AJHD to be an
    • extensive granting of the employers' demands for amendments to the collective
    • agreement. One of its consequences is that junior hospital doctors on call
    • duty have to attend to more than one ward, which can in no way improve, for
    • example, the continuity in the treatment of patients. The award also means
    • that the employers will be able to remunerate part of the call duty by
    • monetary payment instead of having it credited to the individual's working
    • hours, as had been done in the past. This makes the reduction of working hours
    • an illusion.
13. 74. According to the complainant, irrespective of whether these amendments
    • may be considered expedient, a government's wish for amendments to a
    • collective agreement cannot warrant the discontinuation of a strike, if this
    • strike has been so planned as to prevent serious consequences to patients, a
    • situation which had been secured specifically by agreements between the
    • employers and the Association of Junior Hospital Doctors.
14. 75. In yet a further communication, dated 13 February 1989, the AJHD
    • presents supplementary comments on two aspects of its complaint: (1) the
    • narrow terms of reference of the board set up by Act No. 246 (section 6) to
    • decide on certain disputed provisions failing which an umpire's settlement was
    • required; and (2) the measures taken to ensure hospital services during the
    • limited strike in April/May 1987.
15. 76. First, the AJHD stresses that the provision concerning dispute
    • settlement set out in Act No. 246 conformed exactly to the demands made by the
    • employers during collective bargaining and, unfortunately, attempts made
    • during the adoption of the Act to broaden the board's scope failed. The
    • complainant thus considers that the board was not in a position to conduct
    • meaningful negotiations and, despite its joint composition, was biased in
    • favour of the employers. Added to this, states the AJHD, when the board failed
    • to reach agreement and an umpire was called on to assist, his award of 30
    • December 1987 made considerable concessions to the employers as regards those
    • issues listed in section 6 of the Act. It states that to date most employers
    • have still not implemented the umpire's award in relation, for example, to
    • reducing the workload of junior hospital doctors.
16. 77. Secondly, the AJHD stresses the limited scope and conditions of the
    • strike it called. It explains that only 555 of a total of 8,091 doctors
    • employed in Danish hospitals were selected to take part in the strike. It
    • repeats that the 9 March 1987 "General Agreement" provided for minimum
    • services - to be agreed upon with the AJHD - in cases of disasters, situations
    • of urgency and the performance of vital medical work that could not be
    • postponed. In total, 17 individual agreements were concluded at strike-bound
    • hospitals between the hospital owners and the AJHD concerning the number of
    • junior doctors appointed to serve during the work stoppage. The "General
    • Agreement" also provided for these minimum services to be increased if
    • required and this in fact happened at several hospitals. According to the
    • AJHD, all requests from the hospital owners for a greater number of serving
    • doctors were met by the AJHD. The complainant adds that, both in 1987 and
    • previously, Danish Governments have shown that they respect, and themselves
    • make active use of, the rights of labour and management to take action in
    • connection with collective bargaining. For example, in 1987 the Government
    • accepted the entry into effect of the lawfully called strike although it could
    • have tabled legislation immediately banning this action. Also, in 1981 the
    • Government as an employer locked out almost 1,200 junior hospital doctors of
    • the then total of 6,600.
    • B. The Government's reply
17. 78. In its communication of 10 December 1987, the Government describes the
    • events leading up to the passage of Act No. 246. It states that the
    • negotiations between the Association of Junior Hospital Doctors and its
    • employers (the Ministry of Finance, the Association of County Councils, the
    • municipality of Copenhagen and the municipality of Frederiksberg), including
    • the negotiations assisted by the Public Conciliator, failed to lead to
    • results. A strike then took place and lasted for 22 days.
18. 79. The Government considered that a protracted strike in the hospitals
    • would have serious consequences for the patients and the operation of the
    • hospitals, for example, patients on waiting lists for hospital treatment were
    • particularly seriously hit. The inevitable consequence was that this group of
    • patients, who were already in a difficult situation, experienced increasing
    • uncertainty and insecurity and painful conditions were prolonged. The
    • Government refers in this connection to the ILO "Digest of Decisions on
    • Freedom of Association" which includes the hospital sector as an "essential
    • service" where restrictions on the right to take industrial action are
    • acceptable under certain conditions.
19. 80. The Government points out that the dispute between the AJHD and its
    • employers was not a dispute about pay questions, but about the organisation of
    • the work and the working time rules, which normally form an integral part of
    • collective agreements. The background to this situation was that conditions
    • concerning the organisation of working time in this sector had developed in an
    • undesirable direction over recent years. The Government explains that the
    • rules in the collective agreement (which were originally intended to be
    • training rules) had come - in combination with the other rules of the
    • agreement on working time such as the rules on stand-by duty - to operate as a
    • staffing regulation. Gradually, it also became very difficult to ensure the
    • necessary and proper training of doctors. In addition, a specialist advisory
    • body, the National Health Board, had declared that in the longer perspective
    • there would be problems in maintaining the quality of the treatment of the
    • patients; it strongly emphasised the need for a redirection of this
    • development, both to the Government and to the regional hospital authorities.
20. 81. The Government thus found it necessary to do something to solve these
    • problems in a way covering long-term perspectives, which both doctors and
    • hospital-owners could accept, so that disputes would not arise in connection
    • with future negotiations. On the basis of these considerations, the Government
    • found it necessary to intervene in the dispute by passing legislation. On 5
21. May 1987 the Minister of Labour met with representatives of the Association of
    • Junior Hospital Doctors and at this meeting he presented the bill to these
    • representatives. The Act adopted renews the collective agreement concerning
    • pay and other working conditions for junior hospital doctors (concluded
    • between the Ministry of Finance, the Association of County Councils, the
    • municipality of Copenhagen and the municipality of Frederiksberg on the one
    • side and the AJHD on the other), and prolongs six other agreements concluded
    • between the same parties which, in respect of certain pay and working
    • conditions, refer to the collective agreement for junior hospital doctors.
22. 82. The Government states that while the pay segment of the agreements was
    • not in dispute, the reorganisation of working time - based on the reasons
    • outlined above - was. The Act therefore provided that a joint board shall be
    • set up with a view to deciding these disputed matters so that the parties may,
    • to the largest possible extent, influence the decision. If they failed to
    • reach majority agreement before 1 September 1987 on all matters, an umpire was
    • to be appointed to make the final decision. The Government recognises that,
    • unfortunately, the joint board failed to agree on the disputed matters and an
    • umpire was therefore appointed by the Conciliation Board. The umpire had
    • meetings with the parties during the last two weeks of October 1987 with a
    • view to laying down the further procedure.
23. 83. In view of all the information supplied, the Government is of the
    • opinion that there is no need for a direct contacts mission to visit Denmark.
24. 84. In its letter of 22 November 1988, the Government first refutes the
    • complainant's assertion that it was not the strike that was responsible for
    • the serious situation facing patients. On this point, it supplies statistics
    • from the Ministry of Health to show the improvements over recent years in
    • hospital admissions reducing waiting list numbers and to show the drop in the
    • average waiting time for certain operations (e.g. cataracts, sterilisation and
    • varicose veins). According to the Government, the results of the various
    • measures to reduce hospital waiting lists were seriously threatened by the
    • strike in the spring of 1987 as it was in these very fields that the treatment
    • of patients was jeopardised. The legislative intervention was a prerequisite
    • for a positive development in this field in 1987. The fact that the agreements
    • which had been concluded guaranteed the treatment of patients with acute
    • diseases does not change the fact that a protracted strike would have had
    • serious consequences for patients on waiting lists. In other words, the fact
    • that agreements were concluded between the employers and the Association of
    • Junior Hospital Doctors exempting certain fields from the work stoppages was
    • immaterial since the agreements concerned emergency duty with a view to
    • treatment of acute cases and they were thus without importance for the
    • majority of the patients on the waiting lists. The agreements could not make
    • legislative intervention unnecessary.
25. 85. Secondly, the Government contests the Association of Junior Hospital
    • Doctors' denial that the legislation was necessary in order to ensure the
    • quality of the treatment of the patients and the training of junior doctors.
    • According to the complainant, there had been some transitional problems which
    • were solved through a better planning of work and the introduction of
    • experiments with the training of doctors. The Government, however, maintains
    • that the quality of training of doctors was at risk and, in this connection,
    • it refers to a study undertaken by the Association of County Councils in
    • Denmark of the average physical presence of junior doctors at the hospital
    • wards. This study showed that the average physical presence at the wards
    • varied from 25 to 36 hours for a 39-hour week. The Government adds that the
    • doctors are in all cases paid for more than 39 hours per week (due to
    • provisions in the agreement concerning inclusion of stand-by duty in the
    • calculation of working hours).
26. 86. Thirdly, as regards the complainant's criticism of the award made by the
    • umpire on 30 December 1987 as "an extensive granting of the employers'
    • demands", the Government considers that it is still premature to say anything
    • about the consequences of the award. However, on a preliminary basis, the
    • Government reports that the Ministry of Health finds that the basic problems
    • in connection with the agreement applying to junior doctors have not been
    • solved. The Ministry of Finance points out that the question of common duty
    • arrangements for several wards is a medical question in the sense that duty
    • teams must comply with responsible medical standards, but it is up to the
    • hospital administrations and not the junior doctors to decide these matters.
    • It is actually said in the award that the hospital authorities must - prior to
    • introducing common duty arrangements between several wards - obtain a medical
    • opinion from the committee of chief doctors at the hospital concerned and must
    • also give the Association of Junior Hospital Doctors the possibility of
    • stating its views.
27. 87. Against this background the Government maintains that the dispute with
    • the Association of Junior Hospital Doctors had ended in a deadlock. There was
    • no prospect that this strike could lead to a solution to the serious situation
    • in the hospitals. The strike meant that the possibility of offering treatment
    • to the many patients waiting for operations became more and more
    • unpredictable. It thus considers its action was justified by the human
    • suffering which, as a consequence, would have been imponderable.
28. 88. In a further communication of 17 April 1989, the Government replies to
    • the complainant's most recent letter expanding on two aspects of the case,
    • namely (1) the terms of reference of the board set up by Act No. 246; and (2)
    • the scope and conditions of the strike. First, the Government states that the
    • issue of the organisation of work in hospitals has given rise to disputes for
    • many years but has always been dealt with in doctors' collective agreements
    • and will continue to be so (because the arbitrator's decision in the present
    • case forms an integral part of the various collective agreements). The
    • Government claims that in drafting the proposed legislation it aimed to
    • restrict the scope of intervention as much as possible; thus section 6 of the
    • Act is confined to three specific matters for which a solution was so
    • important. The Government is astonished that the doctors now consider that
    • other matters should have been covered by the Act as well. It stresses that
    • the Act itself did not state how these issues should be solved, but left it to
    • the parties to solve them, failing which an independent arbitrator was to have
    • the final decision. It adds that unfortunately neither the employees nor the
    • employers were satisfied with that decision.
29. 89. Secondly, the Government is of the opinion that it is not of decisive
    • importance how many doctors participated in the strike; the important point is
    • its consequences on the health of the population. It stresses that, at the
    • time when the Government decided to intervene, the strike had been running for
30. 22 days and there was no prospect of the parties themselves finding a
    • solution. It continues to recognise the doctors' right to free collective
    • bargaining and collective industrial action. It stresses that this particular
    • intervention was justified by the specific circumstances of the case, was of
    • limited scope and duration, and was necessary to stop a protracted strike
    • which led to human suffering.

C. The Committee's conclusions

1. 90. The Committee observes that the facts of this case are not in dispute:
   • both the complainant and the Government explain that on 8 May 1987 Act No. 246
   • "on changes in the work scheduling for junior doctors in the public health
   • service and on renewal and extension of their collective agreements" put an
   • end to a 22-day strike in the hospital sector and prolonged certain terms and
   • conditions of employment of junior doctors for a two- or four-year period.
2. 91. The parties to this complaint do disagree, however, on certain aspects
   • of the circumstances leading to the adoption of Act No. 246. In the first
   • place, the complainant, on the one hand, alleges that there was no advance
   • consultation with it on this government intervention; the Government, on the
   • other hand, states that on 5 May the Minister of Labour met with
   • representatives of the AJHD to show them the Bill in question.
3. 92. The Committee has said in the past (see, for example, 202nd Report, Case
4. No. 949 (Malta), para. 275) that while the refusal to permit or encourage the
   • participation of trade union organisations in the preparation of new
   • legislation or regulations affecting their interests does not necessarily
   • constitute an infringement of trade union rights, the principle of
   • consultation and co-operation between public authorities and employers' and
   • workers' organisations at the industrial and national levels is one to which
   • importance should be attached, in accordance with the provisions of the
   • Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113).
   • In the present case, the Committee cannot but regret that there was only one
   • meeting with the workers' organisation involved in the specific piece of
   • legislation affecting the working conditions of its members.
5. 93. Secondly, the complainant and the Government disagree as to the
   • consequences of the strike during April-May 1987: the AJHD alleges that only
6. 555 out of over 8,000 doctors took part, that only certain wards or
   • departments of certain hospitals were affected and that full provision had
   • been made for the continuance of minimum services and for emergency services
   • during the strike (in a "General Agreement" signed on 9 March 1987 and in no
   • less than 17 further agreements for various individual hospitals). The
   • Government was concerned about the immediate suffering of patients on waiting
   • lists as well as the long-term effects of a prolonged doctors' strike, and it
   • wished to settle once and for all the question of the organisation of working
   • time so as to avoid further industrial action in future negotiations.
7. 94. In past cases the Committee has pointed out that the right to strike may
   • be restricted or even prohibited in the case of public servants acting in
   • their capacity as agents of the public authority, or in 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. (See, for example, 236th Report, Case No. 1140 (Colombia), para.
8. 144. ) Under this criterion the Committee has considered that the hospital
   • sector is an essential service (see, for example, 217th Report, Case No. 1091
   • (India), para. 443)where the supervisory bodies accept that government
   • measures may restrict or prohibit strike action.
9. 95. The Committee notes that the complainant argues that its agreement to
   • the provision of extensive emergency services during the strike meets the ILO
   • criteria on minimum services and thus removes these public hospitals from the
   • scope of the definition of essential services. The Committee, however, is of
   • the opinion that the very nature of public hospitals does not permit
   • derogations from this important principle. The fact that some doctors, some
   • wards and some services functioned during the strike does not change the fact
   • that the functioning of other wards and services were jeopardised for a long
   • period.
10. 96. At the same time, the Committee would recall the principle that where
    • the right to strike is restricted or prohibited in certain essential
    • undertakings or services - being hospitals in the present case - adequate
    • protection should be given to the workers concerned to compensate them for
    • this limitation on their freedom of action. This could be done, for example,
    • by providing adequate, impartial and speedy conciliation and arbitration
    • procedures in which the parties concerned can take part at every stage and in
    • which the awards, once made, are fully and promptly implemented (see, for
    • example, 236th Report, Case No. 1263 (Japan), para. 270). The Committee notes
    • in the present case that Act No. 246 (section 8) prohibits industrial action
    • for the life of the extended collective agreements and (section 9) provides
    • for settlement of issues concerning violation and interpretation of the
    • extended collective agreements "in accordance with the customary industrial
    • relations codes of practice covering the field in question". For those matters
    • still in dispute when the Act was passed, sections 5, 6 and 7 provide for the
    • creation of an equal representation/joint board to decide these matters before
11. 1 September 1987 in default of which this board or the Conciliation Service
    • shall nominate an umpire to decide the issues.
12. 97. The Committee notes that, in accordance with the above-mentioned
    • provisions of Act No. 246, during the last weeks of October 1987, an umpire
    • appointed by the Conciliation Service (an independent government institution
    • composed of three conciliators appointed by the Minister of Labour for
    • three-year terms in accordance with the Conciliation in Industrial Disputes
    • Act, 1934, as amended) did hold meetings with the parties in an attempt to
    • settle the outstanding issues. His award, handed down on 30 December 1987,
    • does not appear to completely satisfy all the parties (both the complainants
    • and certain government ministries have voiced their concerns). It is not for
    • the Committee to rule on the contents of that award (which concern technical
    • questions such as the work timetables and remuneration of doctors on call duty
    • from their residences). It is, however, for the Committee to verify whether
    • the way that this form of compensation for the removal of access to industrial
    • action complies with its principles.
13. 98. Under the criterion referred to above, the Committee considers that both
    • the general procedure for the settlement of disputes concerning the extended
    • agreements and the specific procedure (joint board/independent umpire) created
    • by virtue of sections 5 to 7 of Act No. 246 are adequate, impartial and speedy
    • and involve the parties. As such they do safeguard the interests of the
    • workers who are obliged to maintain industrial peace under the legislation in
    • question.
14. 99. The third aspect of this complaint centres on the allegation that Act No.
15. 246 is yet another example of government intervention in voluntary collective
    • bargaining. The Committee observes - as does the complainant - that this is
    • not the first time in recent years that it has been called on to examine the
    • Danish Government's intervention through legislation in both private and
    • public sector collective bargaining processes. Although the pieces of
    • legislation at issue in the earier cases (see 243rd Report, Case No. 1338,
    • paras. 209 to 247, approved by the Governing Body in March 1986, followed up
    • in the 1987 observation on Denmark's observance of Convention No. 98 made by
    • the Committee of Experts on the Application of Conventions and Recommendations
16. and 259th Report, Case No. 1443, paras. 163 to 197, approved in November 1988
    • and also referred to the Committee of Experts) are not called into question
    • here, they contained very similar provisions. The Committee is therefore bound
    • to refer the Government to the same fundamental principles upon which it based
    • its criticisms of the Government's earlier interventions. These are that a
    • basic aspect of freedom of association is the right of workers' organisations
    • to negotiate wages and conditions of employment freely with employers and
    • their organisations, and that any restriction on this right should be imposed
    • as an exceptional measure and only to the extent necessary, without exceeding
    • a reasonable period; any restriction should be accompanied by adequate
    • safeguards to protect the living standards of the workers.
17. 100. In addition, the Committee would recall that Article 6 of Convention
18. No. 98 permits the exclusion from this basic right of "public servants engaged
    • in the administration of the State", a term which the ILO supervisory bodies
    • have looked at in the light of the distinction to be drawn between civil
    • servants employed in various capacities in government ministries or comparable
    • bodies and other persons employed by the government, by public undertakings -
    • such as public hospitals in this case - or by independent public organisations
    • (see, for example, 236th Report, Case No. 1267 (Papua New Guinea), para. 596).
19. 101. In this case, therefore, the Committee considers that the Association
    • of Junior Hospital Doctors legitimately had enjoyed the right to negotiate the
    • terms and conditions of employment of junior hospital doctors by means of
    • collective agreements until Act No. 246 put an end to all possibility of
    • negotiations for the life of the extended agreements, i.e. until April 1989 or
    • April 1991.
20. 102. Given the facts of the present case, it appears to the Committee that
    • the government intervention went beyond the criteria set out in the above
    • paragraphs concerning acceptable restrictions on the voluntary fixing of
    • conditions of employment. The method used went beyond the extent necessary and
    • a reasonable period by prolonging the terms of the agreements for two, and in
    • some cases four years. In this connection, the Committee notes that no
    • evidence was put forward to show that the Danish economy as a whole or the
    • junior hospital doctor sector itself was faced with an emergency situation
    • such as to justify intervention in voluntary collective bargaining. Moreover,
    • it notes the Government's commitment to the principle of the doctors' right to
    • free collective bargaining apart from this one particular intervention, which
    • was repeated in the Government's most recent communication.