Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

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

The Committee takes note of the Government’s report.

1. Article 4 of the Convention. In its previous comments, the Committee had noted that section 10 of Act No. 408 – the Danish International Ships Register Act (DIS) – has the effect of, on the one hand, restricting the scope of negotiable issues by Danish trade unions by excluding from their bargaining power seafarers working on ships under the Danish flag who are not Danish residents and, on the other hand, preventing these seafarers from freely choosing the organization they wish to represent their interests in the collective bargaining process.

The Committee notes the indications in the Government’s report that the framework agreement between the social partners – the agreements on mutual information, coordination and cooperation concerning DIS ships, concluded since 1997 – has been prolonged to 31 December 2007. The Government indicates that this prolongation has taken the form of two agreements of 16 January 2004 (collective agreement with protocol attached) and of 15 December 2005 (collective agreement with protocol incorporated). The Government indicates in its report that two unions representing seafarers of a lower rank have wished not to be parties to the agreements: the United Federation of Danish Workers (3F) and its branch organization, the Union of Danish Seafarers, and the Union of Restaurant Workers (RBF) which has from 1 July 2006 been part of 3F.

The Government indicates that the agreements still deal with the conditions for seafarers and contain objectives concerning employment of Danish seafarers at an internationally competitive level, training of Danish seafarers and coverage of collective agreements between Danish shipowners and foreign unions, etc. The Committee notes, as it had noted in its 2003 observation, that these agreements confirm the right to enter into collective agreements with foreign organizations, in accordance with Act No. 408, and that foreign organizations have a right to be represented in negotiations with shipowners/organizations of shipowners with a view to ensuring that a negotiated result is in accordance with an internationally accepted level in terms of international standards for pay and working conditions. The Danish contracting parties may also at request continue to represent a foreign organization.

According to the Government’s report, the 2004 agreement between the social partners and the attached protocol also imply a continuance of special provisions which ensure in greater detail that conclusion of a collective or individual agreement with foreign seafarers without Danish residence is at an internationally acceptable level. The 2004 protocol thus stipulates minimum standards that must be included in collective agreements concluded with foreign trade unions in relation to, for instance, pay, working time, period of service on board, repatriation, sickness, etc., safety and health, holiday and complaint procedures. In order to ensure that the Danish contracting parties can represent a foreign trade union, the 2004 protocol has been extended with a provision to the effect that foreign seafarers on board DIS ships may hold double membership, for example, be a member of one of the Danish unions party to the agreement and be, at the same time, a member of a trade union in the home country. These provisions have been incorporated in the agreement of 15 December 2005.

The Committee takes note of the Government’s indication that, if Denmark is to maintain a merchant fleet with quality ships that can compete internationally, there is a continuous need to ensure that DIS constantly constitutes an attractive and competitive ships’ register.

The Committee also takes note of the communications of the Danish Confederation of Trade Unions (LO), the 3F and the Confederation of Danish Employers (DA), attached to the Government’s report. The 3F indicates that all Danish seafarers’ organizations agree that paragraph 10 of the DIS Act should be amended and that the contact committee agreement does not exist because of the DIS Act but, in spite of, the Act, and that it presupposes that participating unions accept the shipowners’ rights under the Act; it therefore cannot take the place of necessary amendments to the Act with a view to respecting Conventions Nos. 87 and 98. The Committee notes that 3F indicates that neither 3F nor RBF are part of the agreements and that, according to 3F, the present system privileges the number of unions and not their representativity.

The Committee welcomes the renewal of the agreements between the social partners and the adoption of the 2004 protocol, and, in particular, the new provision to which the Government has referred, but observes that the legislative aspect of the matter has not been resolved and that two trade union organizations have again decided not to be bound by the new agreements. The Committee underlines that section 10 of Act No. 408 has the effect of restricting the activities of Danish trade unions by prohibiting them from representing, in the collective bargaining process, those of their members who are not considered as residents in Denmark. Taking due note of the figures presented by the Government concerning the Danish shipping industry, and, in particular, that as of 30 September 2005, out of a total of 8,714 seafarers, 3,042 were foreigners and, stressing that this issue has been examined since 1989, the Committee requests, once again, the Government to indicate in its next report the measures taken or envisaged to amend section 10 of Act No. 408 so that Danish trade unions may freely represent all their members – Danish residents and non-residents – working on ships sailing under the Danish flag in the collective bargaining process, in conformity with Article 4 of the Convention.

2. Collective bargaining rights of majority organizations. This issue relates to the application of section 12 of the Conciliation Act and has been raised following the examination by the Committee on Freedom of Association in Case No. 1971 in 1999. Section 12 makes it possible for an overall draft settlement, made by the Public Conciliator and sent out for ballot, to cover collective agreements involving an entire sector of activity, even if the organization representing most of the workers in that sector rejects the overall draft settlement. In its previous comments, the Committee has requested the Government to review the legislation, in consultation with the social partners, and to keep it informed of these consultations.

In its report, the Government indicates that the central organizations, LO and DA, have discussed the rules on the linking of agreements of different occupational sectors and are of the opinion that section 12 should be seen in the light of the wording of Article 4 of the Convention and that the conciliation service must be said to be “a machinery for voluntary negotiation” as one of its most important purposes is to offer independent assistance in connection with the renewal of collective agreements and recommend concessions which seem appropriate for a peaceful settlement of a dispute. According to the Government’s report, the opinion of the central organizations is underpinned by the fact that it is often a judge who exercises the function, that conciliators are not subject to instructions from the Government, and no financial considerations are taken in connection with submissions of compromise proposals. The Government indicates that the central organizations find that the conciliation service cannot be said to be an element in the general exercise of public powers. The Committee notes that, the Government adds in its report, that section 12 does not bar the social partners from negotiating and exerting their influence. All organizations negotiate the renewal of their own agreements and a compromise proposal cannot be made by the Public Conciliator until all bargaining possibilities have been exhausted. The individual member is guaranteed influence in that the compromise is sent out for ballot and the linking rule does not mean that the collective agreement will apply to the entire sector; it is thus not a matter of an erga omnes principle. The adoption of a compromise proposal does not mean that the agreements concluded lapse but, on the contrary, that they could be individually maintained. The rules serve the purpose of avoiding that a number of occupational fields will become involved in a dispute because a single field that constitutes a minority – maybe even a very small minority – is, for some reason or other, dissatisfied with the compromise result and has rejected the proposal. The Government stresses that the linking rule is a necessary element of the special organizational structure of the Danish labour market that is characterized by many different agreements in the same enterprise and for the same occupation. On the one hand, it is thus not a matter of a system based on industrial unions but, on the other hand, the agreements for the same occupational field are, typically, negotiated together and at the same time. It is important to stress that a change in this generally well-functioning state of law would require basic changes in the Danish union and bargaining structures; changes that are not wished by any of the parties.

While taking note of the Government’s arguments, the Committee stresses that section 12 of the Conciliation Act could, in some cases, have the result of excluding the most representative trade union organization from the outcome of the negotiations of collective agreements or from the resolution of a conflict. The Committee therefore encourages the Government to engage in dialogue with the most representative workers’ and employers’ organizations on this issue in order to find the means to solve it. The Committee requests to be kept informed of any development in this regard. The Committee trusts that every effort will be made to fully ensure the collective bargaining rights of the most representative organizations and the principles of free and voluntary collective bargaining.