Allegations: The complainant organization alleges 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
- 230. The complaint is contained in communications from the Danish Union
of Teachers (DUT), supported by the Salaried Employees and Civil Servants Confederation
(FTF), dated 29 August and 15 October 2013.
- 231. The Government forwarded its response to the allegations in
communications dated 15 October and 25 November 2013.
- 232. 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
A. The complainant’s allegations- 233. In its communications dated 29 August and 15 October 2014, the DUT
alleges the violation by the Government of Conventions Nos 87, 98 and 151, all ratified
by Denmark.
- 234. The complainant indicates that the DUT negotiates the collective
agreements for teachers every second or third year with two employers’ organizations:
Local Government Denmark (LGDK) and the Ministry of Finance. The LGDK is the
organization representing the municipalities, i.e. the employers for teachers in primary
and lower secondary schools; in this regard, the Government has legislative power with
regard to curricula, syllabus, etc., as well as issues related to the content of
teaching. In relation to other educational institutions such as colleges, universities,
vocational education, training institutions and private but state-funded schools, the
Government carries both legislative and employer tasks; its function as an employer is
carried out by a department within the Ministry of Finance called “The Agency for the
Modernization of Public Administration” (Modernization Agency).
- 235. This complaint relates to two matters arising from the collective
bargaining in 2012–13 between the Danish Union of Teachers on the one side, and the LGDK
and the Modernization Agency on the other side: (i) the start-up and initial
preparations for the 2012–13 collective bargaining; and (ii) the drafting and
preparation of the Government’s regulatory intervention in spring 2013 (Act No.
L409).
- 236. In the complainant’s view, the negotiations with the DUT have been
carried out by the Modernization Agency and LGDK in a very tight cooperation and with
involvement of the Government. Albeit absolutely vital to keep the balance between the
legislator and the employer, the role of the employer and the role of the legislator
have not been strictly separated and have even been mixed during the negotiations. From
a very early stage in the collective negotiations, LGDK could not carry out free,
voluntary and true negotiations.
- 237. The complainant indicates that the negotiations concerning renewal
of the collective agreements with effect from 1 April 2013 began in autumn 2012. The
finance agreement with the LGDK and the Government for 2012 stated as follows: “the
Government and LGDK agree on strengthening focus on obtaining more teaching time for the
current resources in primary and lower secondary schools and in upper secondary schools.
As part of this process, on the basis of, amongst other things, existing analyses of
teachers’ working hours, there will be collaborative work to assess whether legislation
and the relevant collective agreements provide a good framework for the efficient
utilization of teachers’ resources”. According to the complainant, in the autumn of
2012, the DUT became aware of a document of 18 October 2012 written by a working group
of representatives from both the Modernization Agency and LGDK and called Annex 11 –
Reform of Content lifting the Danish Folkeskole, which basically stated that the
Government’s new School Bill should be financed by changes in the agreement on teachers’
working hours. This agreement had been negotiated in 2008 between LGDK and the DUT, and
the Ministry of Finance and the Modernization Agency were not part of it. The
complainant denounces that, even before the negotiations started, the employers and the
Government had determined with which result they would settle, and that the Government
had a clear interest in the outcome of the negotiations with the DUT in order to ensure
conditions and financing of their new School Bill, as mentioned in the 18 October paper.
In accordance with the Access to Information Act, the DUT sought access to the working
papers including the 18 October 2012 paper but access was denied; this was recently
criticized by the Danish Ombudsperson, but without any change in the decision.
- 238. According to the complainant, negotiations took place in parallel
identical sequences, with the same collective bargaining demands being made by the two
employer partners for both state schools or institutions and municipal schools, and with
the same denial of true negotiations. During the negotiations, the DUT tabled several
proposals that met some of the requirements from both LGDK and from the Modernization
Agency. However, in the complainant’s view, the employer parties showed no interest in
the actual negotiations, and the union’s proposals for changes or additions to the
employers’ demands were not negotiated in reality. In all negotiation sessions, the
employers only presented the proposal they had presented at the first meeting in
December 2012. The complainant criticizes that the employers requested the removal of
all rules on working hours (including special rules for older workers) preferring that
future rules only regulate the “external environment” for working hours; but at the same
time, they were unwilling to elaborate in detail on the requested new rules on working
hours and repeatedly refused to submit a draft agreement or other written material that
could describe how working hours could be organized. The complainant therefore believes
that by unilaterally determining the outcome of collective bargaining in advance, the
Government and LGDK clearly undermined a long-standing well-functioning system of free
negotiation as stated in ILO Conventions.
- 239. Furthermore, the complainant indicates that an agreement for upper
secondary (high school) teachers was reached in mid-February 2013 between the relevant
organization and the Modernization Agency, and this agreement complied with demands from
the Modernization Agency. A vote among upper secondary teachers showed that 85 per cent
were against the agreement, but because of certain rules on coordination of votes, the
agreement was adopted. According to the complainant, LGDK presented the DUT with a draft
agreement with the exact same content as the agreement with upper secondary teachers.
This was the first time during the negotiations that LGDK presented a written
description or example of their demands.
- 240. The complainant states that, at the end of February 2013, during an
interruption of a meeting, where the parties were working on documents separately, LGDK
announced surprisingly by telephone that the negotiations had collapsed. According to
the rules, they subsequently issued a notice of lockout of all teachers to start on 1
April 2013. The DUT faced exactly the same situation, when the Modernization Agency
announced a collapse in negotiations and issued the same notice of lockout for the
teachers employed in state schools only three days later.
- 241. The complainant adds that, after the lockout notice had been issued,
the continuing negotiations in March were led by the Conciliation and Arbitration
Institution. However, even in this forum and with the power and authority of the
conciliator, there was still no movement from the employers at all, and it was not
possible even under these circumstances to reach an agreement. Subsequently, 55,000
teachers were locked out on 1 April 2013. Approximately 800,000 students from public
schools, private but state-funded schools and vocational education and training
institutions were affected.
- 242. It is the complainant’s view that the lockout was a very drastic
step to take. Lockouts and strikes are legal means of action, but a lockout of this
extent – from two public employer organizations – had never been seen before. This was
the first time ever that public employers had implemented the lockout option without the
unions having at first called a strike.
- 243. The complainant indicates that the lockout lasted until 27 April
2013, when it was stopped by a new Act. The Prime Minister announced on 25 April 2013
that the Government would submit a Bill, and the Act was adopted on 26 April 2013 and
entered into force on 27 April 2013. Act No. L409 extends and renews the collective
agreements for certain groups of employees in the public sector, including members of
the DUT (copy enclosed with the complaint).
- 244. Whereas the Act was presented as a "balanced intervention that
satisfied both parties", the complainant completely disagrees with this point of view
stating that the changes and conditions in the entire Act only correspond to the demands
tabled by LGDK and the Modernization Agency during the negotiations. The complainant
claims notably that: (i) the technical calculations underlying the intervention were
made solely in consultation with the employers; (ii) the calculations do not take into
account the high amounts of money allocated in connection with the previous collective
bargaining to lower pay increases to ensure more working time for specific tasks (e.g.
preparation and duties as a form teacher) or additional time for teachers of pupils with
special needs; in the complainants’ opinion, the Government has expropriated funds from
collective agreements amounting to several hundred million Danish kroner; (iii) for the
first time in the context of a legislative intervention in collective agreements, only
the employers have assisted the Ministry of Employment in the extensive work of drafting
the Bill; (iv) the Act met the employers’ demands for greater flexibility and removing
the conditions agreed with the union regarding planning and performance of working
hours; and (v) the Act also introduced a change in conditions for teachers over 60 years
old, who were entitled to a reduction in working time since 1910 (initially only a
reduction in the number of annual teaching hours, it evolved after many years of
negotiations into a general reduction of compulsory working hours); the entitlement,
which has nothing to do with the working hour agreement, has been withdrawn by the
Government’s intervention with a phase-out over three years and a compensation for
teachers with an annual supplement that the complainants do not consider to correspond
to the value of the age reduction.
- 245. The complainant denounces that, although the DUT had tried to
influence the outcome up to the adoption of the Act, the Union was not involved in the
work on the Bill, and its proposals were not heard or considered, in stark contrast to
LGDK, who in fact helped the Government to draw up the main content of the Bill. When
presenting the Bill, the Minister of Finance and the Minister of Employment stated, that
in the course of preparation of the Bill, the Government had consulted both LGDK and the
Modernization Agency, and that the relevant ministries did not and had no plans of
consulting the DUT. According to the complainant, the Act repeals working hour rules,
making Denmark an exception in the Western world, with no regulation of teachers’
teaching hours by either contract or law. No other public servants have rules on working
hours and vacation like those to which teachers will be subject to. The working hour
rules (for teachers) take their starting point in rules on working hours for government
employees; but deviations from those rules are in the employer’s favour. The complainant
states that the demands for increased flexibility, for example in relation to working
hours, often submitted by employers during collective bargaining, are usually met by
employees in exchange for concessions in other areas. In its view, the adopted Act
favours only the employers, as it gives full flexibility without any concessions in
return.
- 246. In conclusion, the complainant feels that there has been an
inappropriate and dangerous blurring of the role of the Government as both legislator
and employer, and that the public employers – both LGDK and the Modernization Agency –
have used all the means at their disposal to impose their own demands contrary to the
democratic process that is normal procedure as well as the right to free and equal
negotiations.
- 247. Firstly, the Government neglected the right to free talks and
instead took control of the negotiations with the sole purpose of ensuring that the
agreement on working hours was repealed in its entirety and replaced by new rules for
teachers’ working hours, making it possible to finance the Government’s new School Bill.
According to the complainant, it has been clear from the start that the negotiations
have been unilaterally organized by the LGDK, the Modernization Agency and the
Government, and that there was no intention to hold collective discussions or
negotiations at all. Even negotiations in the presence of the conciliation institution
did not involve real collective bargaining or discussions. The Government’s behaviour
has de facto served to hamper the freedom of collective bargaining. Thus, the Government
has failed to observe the obligation to encourage and promote the development of
collective bargaining between public authorities and employers’ and employees’
organizations. It is also the complainant’s view, that the industrial action chosen by
the Government and LGDK was disproportionate to the objective; the 4-week lockout was
excessive.
- 248. Secondly, the complainant claims that this is the first time in
Danish history that, when introducing a Bill to end industrial action, the Government
legislator has to such an extent only listened to one party during the entire process.
When governments have previously put an end to industrial action by introducing a new
law, they have always sought to meet both parties and to balance the Bill in accordance
with their different demands. In the complainant’s view, Act No. L409, however, only
addresses the demands from the Government and LGDK, who have used all means to impose
their demands as public employers and have ignored the normal democratic, negotiation
process.
- 249. The complainant calls on the Committee to adopt a serious criticism
of the negotiations; to condemn the unilateral drafting of the adopted legislative
intervention; to make recommendations on the appropriate guarantees in order to protect
the interests of employees which have been effectively stripped during the collective
bargaining; and to ask the Government to present a report within a reasonable time limit
on any corrective measures that might be taken.
B. The Government’s reply
B. The Government’s reply- 250. In its communication dated 15 October 2013, the Government first
provides general information on the collective bargaining system in the public sector in
Denmark. The public sector is composed by municipalities, regions and state. With regard
to collective bargaining, the municipalities are represented by LGDK and the State is
represented by the Modernization Agency of the Ministry of Finance. While the LGDK is a
private organization that has been established in order to attend to the interests of
the municipalities, the Modernization Agency is a government institution. When the
collective agreements in the public sector expire – normally every second or third year
– LGDK and the Modernization Agency negotiate with their counterparts in order to ensure
a renewal of the collective agreements.
- 251. The Government indicates that the framework for these negotiations
is no different from the framework in the private sector. In Denmark there is no
legislation on how the social partners conduct their negotiation neither in the private
sector nor in the public sector. The bargaining system is based on voluntarism and free
bargaining between the two sides. In order to underpin the collective bargaining system,
the machinery for voluntary negotiations between the employers and the workers, the
Parliament has adopted an Act on Conciliation in Industrial Disputes which aims at
conciliating the parties, especially in connection with the renewal of collective
agreements. Therefore, if the parties to the negotiations cannot themselves agree on
renewing the collective agreements and prepare for industrial action in accordance with
the rules, the negotiations continue under the auspices of the Institution for
Conciliation and Arbitration. The tasks and powers of the Official Conciliator are laid
down in the Act on Conciliation in Industrial Disputes. The Government has no influence
on the actions of the Official Conciliator in connection with renewal of collective
agreements. The Official Conciliator is, inter alia, empowered to postpone the
industrial action and to put forward a mediation proposal.
- 252. According to the Government, in those rare and exceptional
situations where the Government submits a bill to intervene legislatively in lawful
strikes or lockouts, the intervening bill will normally be drafted in accordance with
the mediation proposal that was put forward by the Official Conciliator. This is quite
natural since the purpose of legislative intervention in these exceptional situations is
not to regulate pay and working conditions legislatively but to put an end to the
dispute in circumstances where it would be irresponsible to let the dispute continue.
Furthermore, the mediation proposal will normally be technically well laid out and,
accordingly, a good underlying basis for drafting the legislation.
- 253. As regards the role of the Ministry of Employment, the Government
states that the Ministry of Employment does not in any way participate in collective
bargaining. The role of the Ministry of Employment is strictly limited to monitoring the
collective bargaining and in particular occurrences the succeeding industrial dispute
and, with regard to the industrial dispute, to keeping the Government informed about the
consequences of the dispute for the population and for society in general. If the
Government decides that the consequences of the industrial dispute for the population
and society in general are excessively grave and that the dispute should be brought to
an end through legislative intervention, it is the Ministry of Employment that drafts
the legislative intervention in accordance with the government decision. In these rare
and exceptional situations, it is the task of the Minister of Employment to submit the
bill to the Folketing (Danish Parliament). It is the Folketing who may put an end to the
industrial dispute by adopting the bill. The Government stresses that it is instrumental
and fundamental that the Ministry of Employment does not go beyond its neutral role of
monitoring and informing as long as collective bargaining is taking place or the
succeeding industrial dispute is going on without any Government decision to intervene.
Regardless as to whether the bargaining or dispute is in progress in the private or the
public sector, any further involvement by the Ministry of Employment could be regarded
as interference in a process that is definitively the domain of the two sides of
industry.
- 254. According to the Government, the Ministry of Employment: (i) has not
taken part in the preparation of the collective bargaining process; (ii) has not been
informed or called in in any way with regard to the cooperation or coordination that may
have taken place on the employer side; and (iii) has not been involved in e.g. the
decision to lock out the teachers. The Ministry of Employment has been very aware that
there must be a cast iron fence between the Government’s role as employer and the
Government’s duty to monitor and eventually, if the consequences of the industrial
dispute are unacceptably harmful for the population and the society in general, to
intervene in the industrial dispute.
- 255. The Government considers that the role of the Ministry of Employment
changed when the Government decided to intervene in the industrial dispute by submitting
a bill to the Folketing. The Ministry of Employment must draft the bill and do it in a
very short period of time to end the industrial dispute as soon as possible. The
drafting of the bill was technically complicated and in the absence of a mediation
proposal from the Official Conciliator it may be necessary to obtain technical
assistance from relevant experts outside the ministry. It must be underlined, however,
that it is the Government that lays down the contents of the bill that is to be
submitted to the Folketing. The role of the Ministry of Employment and of the experts
that may assist with necessary information for the drafting of the bill in accordance
with the Government’s decision is solely of a technical, not a political, nature.
- 256. The Government notes that the complaint basically relates to the
question about the Government’s intervention and overall management in primarily the
initial phase of the negotiations and along the way and to the question of the drafting
and preparation of the regulatory intervention which is seen to be biased towards the
employer’s side.
- 257. Regarding the first question, the “arms-length principle” which has
been described above and has been adhered to in this matter should be borne in mind.
There has been no intervention from the Government in the negotiations and the overall
management of the negotiations has on the employer’s side been strictly a task for the
Modernization Agency and LGDK. The Modernization Agency is a government agency and as
such this agency of course implements government policies but this cannot be considered
intervention. It is normal practice that there is cooperation between employers’
organizations on the one side and between workers’ organizations on the other side.
Therefore the Government considers it understandable and certainly not condemnable if
there has been close cooperation between LGDK and the Modernization Agency before and
during the negotiations but to the extent that such cooperation has taken place it is
clear that it is not the Government as such who has been negotiating. Bearing in mind
the “arms-length principle” and the fact that the negotiations on the employers’ side
have been carried out by the abovementioned employers, it is not possible for the
Government as such to comment further on the complainants’ allegations that the
negotiations were not “true” or “free” negotiations. It would constitute a dangerous
path of interference if the Ministry of Employment or the Government as such should
enter into some kind of supervisory role with regard to these negotiations.
- 258. Regarding the second question, the Government points out that the
content of this kind of intervening legislation is solely a political question, and that
it is a parliamentary decision to actually adopt such a bill. The Government recognizes
that, in the absence of a mediation proposal from the Official Conciliator, it was
necessary to seek technical support from the Modernization Agency. It was no secret for
the Folketing that the Modernization Agency had supported the drafting of the bill, and
it would not have been possible to serve the purpose of the intervening legislation
without this support. The bill was adopted in the Folketing with a large majority. The
Government agrees with the complainant that this negotiation process and also the
drafting and preparation of the legislative intervention have been unusual in some ways.
In most of the rare and exceptional situations where the Government submits a bill in
order to intervene legislatively, the content of the bill is generally based on the
mediation proposal from the Official Conciliator but in this particular case there was
no such mediation proposal to build on. Noting that the complainant does not agree with
the government view that the bill was “a balanced intervention that satisfied both
parties”, the Government considers it fully understandable that any of the two sides of
industry does not consider an intervening piece of legislation satisfactory and
absolutely legitimate such that the legislation is therefore criticized. It should be
borne in mind, however, that the basis for such criticism is political rather than
legal.
- 259. In conclusion, the Government states that it cannot – without
interfering in the autonomy of the social partners – comment as to whether there has
been a bona fide will to negotiate by any of the two sides of industry. It can, however,
emphasize that there has been no intervention from the Government in the negotiations
and in the industrial dispute before the decision that a bill should be submitted to the
Folketing to bring an end to the dispute. The Government further acknowledges that it
has been using technical assistance from the Modernization Agency in the drafting and
preparation of the bill, which has been openly admitted and communicated to the
Folketing when the bill was adopted. The Government considers however that, due to the
circumstances, it did not have any choice regarding the use of this technical
assistance, if the purpose of the bill was to be achieved. In its view, since it was
merely technical assistance that was used, it does not constitute a violation or a
neglect of any of the ILO Conventions mentioned by the complainants. The Government
considers it regrettable that intervening legislation had to be adopted and that the two
sides of industry could not reach agreement on a renewal of the collective agreement;
but, in the circumstances, the Government believes that it had to act and do it in a way
that was politically responsible and could obtain support from the Folketing.
C. The Committee’s conclusions
C. The Committee’s conclusions- 260. The Committee notes that, in the present case, the complainant
alleges 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. The
Committee notes that the complaint relates to matters arising from the collective
bargaining in 2012–13 between, on the worker side, the DUT and, on the employer side,
the LGDK (organization representing the municipalities, i.e. the employers for teachers
in primary and lower secondary schools) and the Modernization Agency (department within
the Ministry of Finance carrying out the function of employer for teachers in other
educational institutions such as colleges, universities, vocational education, training
institutions and private but state-funded schools).
- 261. In particular, the Committee notes the complainant’s allegations
that:
- (a) the negotiations were carried out by the Modernization Agency and
LGDK (employers) in a very tight cooperation and with involvement and intervention
of the Government (legislator). The two roles have not been separated during the
negotiations thus not allowing for free, voluntary and true negotiations. Even
before negotiations commenced in autumn 2012, the result had been unilaterally
determined (in a paper of 18 October 2012) by the employers and the Government who
had a clear interest in changes being made to the 2008 agreement on teachers’
working hours between LGDK and the union to ensure financing of its new School Bill.
The above is illustrated by the fact that the negotiations in parallel with the two
employers took place in identical sequences: (i) with the same collective bargaining
demands being made by the two employer partners for both state schools and municipal
schools (only one proposal, the proposal made at the first meeting to remove all
existing rules on working hours for teachers, was repeatedly presented); (ii) with
the same denial of genuine and fair negotiations (from the start no intention or
attempt and lack of interest in the negotiation of the several proposals tabled by
the union meeting some of the employers’ demands or of the changes or additions to
the employers’ demands suggested by the union; unwillingness to elaborate further
upon the requested new rules on working hours); (iii) with the first written
proposal presented by the LGDK end of February being identical to the agreement for
upper secondary teachers reached in mid-February 2013 between another union and the
Modernization Agency; (iv) with the surprising announcement end of February 2013 by
the LGDK followed by the Modernization Agency of a collapse in negotiations and
issuance of a lockout notice for all teachers as of 1 April 2013; (v) without any
movement from the employers even during the negotiations led by the Conciliation and
Arbitration Institution; and (vi) the lockout which lasted four weeks and affected
55,000 teachers and 800,000 students from public and private state-funded schools
and vocational education and training institutions was disproportionate to the
objective, excessive and implemented for the first time by public employers without
the unions having first called a strike; and
- (b) the lockout was stopped by
a new Act (No. L409), announced by the Prime Minister on 25 April 2013, adopted by
Parliament on the following day and entered into force on 27 April 2013, which
amends and extends the collective agreements for certain groups of employees in the
public sector, including members of the DUT. The Act is not, as presented by the
Government, a “balanced intervention that satisfied both parties”, since its
provisions solely address the demands tabled by LGDK and the Modernization Agency
for greater flexibility and repeal of working hour rules previously agreed with the
union, without any concessions in return. For the first time in the context of a
legislative intervention in collective agreements, the Government was assisted only
by the employers in the extensive work of preparing and drafting the Bill, and the
technical calculations underlying the regulatory intervention were made solely in
consultation with LGDK and the Modernization Agency. The Union was not involved in
the work on the Bill, and its proposals were not heard or considered, in stark
contrast to the employers.
- 262. Furthermore, the Committee notes the Government’s indications that:
(i) the Ministry of Employment has not taken part in the preparation of the collective
bargaining process, has not been informed or called in in any way with regard to the
cooperation or coordination that may have taken place on the employer side, and has not
been involved in e.g. the decision to lock out the teachers; (ii) the “arms-length
principle” has therefore been adhered to in this matter, and there has been no
intervention from the Government in the negotiations, the overall management of the
negotiations on the employer’s side being strictly a task for the Modernization Agency
and LGDK; (iii) the Modernization Agency as a government agency of course implements
government policies which cannot be considered intervention, and, since it is normal
practice that there is cooperation between employers’ organizations on the one side and
between workers’ organizations on the other side, it is understandable and certainly not
condemnable if there has been close cooperation between LGDK and the Modernization
Agency before and during the negotiations, which to the extent that such cooperation has
taken place does not mean that it is the Government as such who has been negotiating;
(iv) bearing in mind the “arms-length principle” and the fact that the negotiations on
the employer’s side have been carried out by the above employers, it is not possible for
the Government as such – without interfering in the autonomy of the social partners – to
comment as to whether there has been a bona fide will to negotiate by any of the two
sides of industry; (v) the Government has only intervened in the industrial dispute when
it took the decision that a bill should be submitted to the Folketing to bring an end to
the dispute; (vi) the role of the Ministry of Employment then changed, as it had to
draft the bill, which was technically complicated, in a very short period of time; (vi)
it is the Government that lays down the contents of this kind of intervening legislation
to be submitted to the Folketing (political question), it is a parliamentary decision to
actually adopt such a bill, and the role of the Ministry of Employment and of the
relevant experts outside the ministry that may assist with necessary information for the
drafting of the bill in accordance with the Government’s decision is solely of a
technical nature; (vii) in most of the rare and exceptional situations where the
Government submits a bill in order to intervene legislatively, the content of the bill
is based on the technically well laid-out mediation proposal from the Official
Conciliator but in this case there was no such mediation proposal to build upon; (viii)
albeit unusual, it was necessary to seek technical assistance in the drafting and
preparation of the bill from experts, i.e. the Modernization Agency, if the purpose of
the intervening legislation was to be achieved; (ix) since it was merely technical
assistance that was used, it does not constitute a violation or a neglect of any of the
ILO Conventions mentioned by the complainant; (x) while it is regrettable that the two
sides of industry could not agree on a renewal of the collective agreement, in the
circumstances, the Government had to act through legislative intervention and do it in a
way that was politically responsible and could obtain support from the Folketing (the
bill was adopted with a large majority); and (xi) it is understandable that any of the
two sides of industry does not consider an intervening piece of legislation satisfactory
and it is legitimate to criticize it; but the basis for such criticism is political
rather than legal.
- 263. With regard to the matters raised in the complaint concerning the
initial phase of collective bargaining, the Committee notes the divergence of views of
the complainant and the Government as to the involvement of the latter in the
negotiations. Whereas the complainant finds that the Government has intervened and
controlled the negotiations in such a way as to blur the roles of employer and
legislator, predetermine the desired outcome and preclude free and genuine negotiations,
the Government claims that the “arms-length principle” has been respected throughout
(which is why it cannot comment on the bona fide of the parties) while it acknowledges a
non-condemnable cooperation between the two employers of which one was a government
agency implementing government policies. In this regard, the Committee emphasizes that
it has always held that it is important that both employers and trade unions bargain in
good faith and make every effort to reach an agreement; moreover genuine and
constructive negotiations are a necessary component to establish and maintain a
relationship of confidence between the parties. The Committee also recalls that the
public authorities should promote free collective bargaining and not prevent the
application of freely concluded collective agreements, particularly when these
authorities are acting as employers or have assumed responsibility for the application
of agreements by countersigning them. In particular, state bodies should refrain from
intervening to alter the content of freely concluded collective agreements [see Digest
of decisions and principles of the Freedom of Association Committee, fifth (revised)
edition, 2006, paras 935, 1001 and 1011]. Observing that the collective agreements have
been extended until 31 March 2015, the Committee expects that, during the 2014–15
collective bargaining rounds between the parties, the Government will endeavour, in line
with the principles enounced above, 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. The Committee requests to be kept informed
of developments.
- 264. With regard to the matters raised in the complaint concerning the
preparation and drafting of the bill, the Committee notes that the Government recognizes
that it has consulted the Modernization Agency (employer) during the preparation of the
intervening legislation which it justifies with the absence of a mediation proposal as
underlying basis for the bill and the lack of necessary expertise for its speedy
drafting. Regretting that the Government does not provide any explanation as to why it
did not consult the DUT, the Committee recalls that it is essential that the
introduction of draft legislation affecting collective bargaining or conditions of
employment should be preceded by full and detailed consultations with the appropriate
organizations of workers and employers. The Committee has previously considered it
useful 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. In any case, any limitation on collective
bargaining on the part of the authorities should be preceded by consultations with the
workers’ and employers’ organizations in an effort to obtain their agreement [see
Digest, op. cit., paras 999, 1068 and 1075]. The Committee considers that the above
principles are all the more valid, when a Government opts, in exceptional circumstances,
for legislation to put an end to a dispute; and with a view to avoiding any impression
of favouritism. In light of the above, the Committee expects that, during the 2014–15
collective bargaining rounds between the parties, the principles set out above will be
fully respected. The Committee requests to be kept informed of developments.
The Committee’s recommendations
The Committee’s recommendations- 265. In the light of its foregoing conclusions, the Committee invites the
Governing Body to approve the following recommendations:
- (a) The Committee
expects that, throughout the 2014–15 collective bargaining negotiations between the
parties, the Government will endeavour, in line with the principles set out in the
Committee’s conclusions, 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. The Committee requests to be kept informed
of developments.
- (b) The Committee expects that, during the 2014–15
collective bargaining rounds, the principles concerning consultation with the
organizations of workers and employers set out in its conclusions will be fully
respected. The Committee requests to be kept informed of
developments.