Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Denmark (Ratification: 1955)

The Committee notes the information provided by the Government in its report and its communication of 6 March 1991, the extensive debate before the Committee of the Conference in 1989, as well as the comments of the Danish Seamen's Union (DSU).

1. With reference to its previous comments relating to restrictions on free collective bargaining and fixing of wage rates, the Committee notes that, in the spring of 1989, there were negotiations covering practically all agreements in the private and public sectors, where the parties agreed on average wage increases of 2.5 per cent. The Committee also refers to its observation under Convention No. 87 in this respect, as follows:

The Committee takes note of the Government's reports.

1. With reference to its previous comments on the legislative prohibition of strikes in various sectors, the Committee notes from the information supplied by the Government in its latest report that negotiations were held in the spring of 1989 in the public and private sectors, including the fields in which the Government had intervened in 1987, in the belief that the strikes in question would have affected services it considered to be essential. While noting with interest that, according to the Government, it has not been necessary to call strikes in sectors in which the parties concluded collective agreements in 1989, the Committee once again requests the Government to indicate whether the prohibition on strikes has been raised in the sectors that it does not consider to be essential.

2. With reference to the questions relating to the Danish International Ships' Register, the Committee refers to its comments under Convention No. 98 and recalls that section 10 of Act No. 408 is not in conformity with Articles 2, 3 and 10 of the Convention.

2. As regards the Danish International Ships' Register (DIS) established under Act No. 408 of 1988 and the conclusions of the Committee on Freedom of Association in Case No. 1470, the Committee recalls that article 10 of that Act reads as follows:

(1) Collective agreements on wage and working conditions for employees on vessels in this register shall explicitly state that they shall be applicable for such employment only.

(2) Collective agreements as mentioned in subsection (1) which have been concluded by a Danish trade union organisation may only comprise persons who are considered to be residents of Denmark or who, by virtue of incurred international obligations, shall be put on an equal footing with Danish citizens.

(3) Collective agreements as mentioned in subsection (1) which have been concluded by a foreign trade union organisation may only comprise persons who are members of the organisation concerned, or persons who are citizens in the country where the trade union organisation is domiciled, in so far as they are not members of another organisation with which an agreement, as mentioned in subsection (1), has been concluded.

At the 1989 Conference and in its communications, the Government submitted in substance the following arguments:

- without the DIS, there is no doubt that the whole Danish merchant fleet would have flagged out to so-called flags of convenience; the DIS was the only alternative;

- the whole issue of international registers should be discussed in a more global fashion in the appropriate international forum, where all parties could express their views;

- seafarers employed on ships registered on the DIS do not pay income tax (which may represent up to 70 per cent in Denmark); thus, it was necessary to adjust the levels of pay. However, the other conditions of work (holidays, rest periods, etc.) have not changed;

- the establishment of the DIS does not change the fact that full and voluntary collective bargaining is open to all seafarers employed on Danish ships;

- the criterion of residence was naturally chosen in section 10 of Act No. 408 since it is a decisive factor in the actual cost of living; this is not a problem of discrimination based on nationality;

- the real problem is a question of demarcation between different unions; the Government cannot accept that Danish trade unions should have the exclusive right to negotiate on behalf of seafarers employed aboard Danish ships.

The Government further indicates in its report that meetings were held with all representative parties in 1990; although the employees' organisations maintain their criticism about the way in which the DIS was introduced, there seems to be an agreement that it is here to stay. The Government also mentions that in 1989 the parties agreed on new collective agreements for employees on DIS ships. In its communication of 6 March 1991, the Government states that it is still ready for further discussions if the organisations involved express such a wish.

In its recent communication, the Danish Seamen's Union (DSU) maintains that Act No. 408, and in particular section 10 which introduces special rules concerning collective agreements for ships registered in the DIS, remains an obstacle to the right of free bargaining and continues to discriminate against seafarers by reason of their nationality. While the Ministry of Labour held meetings in 1990 with various workers' and employers' organisations, it indicated on 19 December 1990 that, for the time, the matter did not merit further consideration. The DSU requests that the Danish International Ships Register Act be amended.

The Committee notes that under section 10 of Act No. 408, collective agreements concluded by Danish trade unions apply only to persons considered as residents of Denmark. As such, this article prevents these unions from concluding collective agreements on behalf of other seafarers employed aboard Danish ships. The Committee considers that this provision is not in conformity with Article 4 of Convention No. 98, and Articles 2, 3 and 10 of Convention No. 87. In the Committee's opinion, these restrictive provisions do not aim at encouraging and promoting voluntary negotiation between employers' and workers' organisations, nor at allowing workers who are employed aboard Danish ships but who are not residents of Denmark, to join the organisations of their own choosing to defend their interests, free from interference by the public authorities. The Committee invites the Government to hold further constructive discussions on this subject with the organisations involved and to reconsider its position in the light of the foregoing comments.

Furthermore, the Committee wishes to be provided with statistical information on the magnitude of the problem, such as the number and percentages of Danish ships actually registered on the DIS relative to the total fleet, and the number and percentages of Danish and foreign seafarers concerned.