Definitive Report - Report No 71, 1963

Case No 317 (Norway) - Complaint date: 10-DEC-62 - Closed

1. 13. The complaint by the Norwegian Pharmaceutical Society is contained in a communication dated 10 December 1962 addressed directly to the I.L.O. This complaint was transmitted to the Government for observations and the latter replied by a communication dated 29 April 1963.
2. 14. Norway has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 15. The complainants state that the collective agreement on salaries and working conditions between the Norwegian Pharmaceutical Society and the Norwegian Association of Chemists expired on 3 September 1962 and that, since no agreement had been reached on a new collective agreement, all the members of the Norwegian Pharmaceutical Society gave notice of resignation as from that date. After a number of meetings at the Ministry of Labour and Local Government and after public mediation had been attempted without success, the complainants allege that they were informed that, contrary to the usual practice, the Government considered adopting a provisional ordinance forbidding the Society to call a strike and providing for the dispute to be solved by means of compulsory arbitration by the National Wages Board. Despite the Society's protests, at a meeting of the King in Council held on 28 September 1962, a provisional ordinance is reported to have been passed whereby, on the one hand, the dispute is to be settled by the National Wages Board and, on the other, to call or maintain a strike or lockout in order to solve the dispute is forbidden.
2. 16. In the opinion of the complainants, such an attitude by the Government is counter to the spirit of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and they adduce the following arguments in support of their view:
   • We are aware that Convention No. 98 does not expressly forbid the authorities of member countries to deny employees the right to go on strike and to prescribe the settlement of a dispute by compulsory arbitration. It is clearly provided in the Convention, however, that measures shall be taken to encourage and promote the full development and utilisation of machinery for voluntary negotiations between employers and employees. As far as we can understand, it is the right to go on strike which in all countries keeps the system of voluntary negotiations in operation, and if the authorities intervene, forbidding a strike and prescribing compulsory arbitration, it is evident that the machinery for voluntary negotiations is not encouraged, but on the contrary is destroyed. This would no doubt be the case if the disputes of an organisation were repeatedly to be settled in this manner. The employers would have no reason to engage really and fully in negotiations if they knew by experience that a strike would not be permitted by the authorities. Negotiations conducted under such circum stances would be a mockery, and the employees would in reality be subject to the dictation of terms by a public institution. The situation is particularly serious to the members of our Society in view of the fact that pharmaceutical candidates in Norway are not at liberty to establish or take over pharmacies. Under a system of personal concessionary rights they must work for about 25 years for owners of pharmacies before they are allowed to operate a pharmacy for their own account.
3. 17. In its reply the Government notes that the complaint is based on the view that the Government of Norway has not fulfilled its obligations under Article 4 of Convention No. 98, which reads as follows:
   • Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.
   • In the opinion of the Government an obligation cannot be interpreted into this provision to the effect that a ratifying member State has in all cases to refrain from prohibiting a strike when it finds such a prohibition necessary. The Government is therefore of the opinion that the complaint must be regarded as unfounded in relation to Convention No. 98.
4. 18. The Government goes on to point out that Norwegian labour disputes legislation is based on the main principle that the parties to collective agreements shall have the responsibility for labour peace. It is only in quite exceptional cases-the Government declares-that conflicts of interest are not solved on a voluntary basis either through direct negotiations or through the assistance of the public mediation authorities. The parties have in principle the right to resort to stoppage of work in conflicts of interest when the mediation authorities have had an opportunity to attempt conciliation within the framework of statutory time-limits; the supreme authorities of the Kingdom have, however, not renounced the possibility of taking action in labour conflicts which endanger essential interests of the community.
5. 19. The Government specifies that such an intervention into the right to strike must, according to Norwegian legislation, take place through the adoption by the Storthing of a special Act, or, if the Storthing is not in session, through a provisional ordinance issued by the King under article 17 of the Constitution. Recommendations for such special Acts are never made without a thorough examination of the interests at stake. The Government has no interest in weakening the possibility of action of the industrial organisations, but it would fail in its responsibility as the highest administrative authority of the country if, in all cases, it ignored the adverse effects which a stoppage of work may have.
6. 20. The Government further states that if allowance is made for the fact that firms of dispensing chemists deliver medicines and medical preparations to hospitals and the health service outside the hospitals, as well as to private persons, it will be seen that the consequences of the dispute in question could be serious. Although the complainants consider that through the exemptions they affirmed their willingness to grant, these consequences would have been less serious than might have been feared, the Government is still of the opinion that a stoppage of deliveries would in the course of a very short time have very serious effects on the health service and could damage the life and health of the population.
7. 21. The Government states that several attempts to ward off the stoppage of work were made by the Chief State Mediator and by the Minister of Labour and Local Government, in person, but with no success. In addition, the Government states, the Norwegian Pharmaceutical Society refused to agree to voluntary arbitration.
8. 22. It is for these reasons and in these circumstances that, in accordance with article 17 of the Constitution, a provisional ordinance was issued by Royal Decree of 28 September 1962, prohibiting the strike planned and providing for the settlement of the dispute by compulsory arbitration.
9. 23. Concluding, the Government points out that the dispute has been referred to the National Wages Board established under the Act of 19 December 1952; the Government states that " this tripartite committee with seven members is composed in such a way that it should offer the best possibilities for arriving at decisions reasonably related to other wages and conditions of work in the country ".

B. B. The Committee's conclusions

1. 24. In a number of countries the government is entitled, when a stoppage of work affects the operation of essential services, to take measures to protect the community against shortage of food, medicaments, water, fuel, electricity, etc. The Committee has itself fully admitted the idea of " essential service " and recognised the principle whereby in given circumstances the right to strike may be subject to certain restrictions, In particular, in a case concerning the United Kingdom (Kenya), the Committee considered that partial and temporary restriction on the right to strike in essential services, designed to afford an opportunity to settle a dispute without undue hardship to the community, did not constitute an infringement of freedom of association.
2. 25. Though the Committee has recognised that in certain circumstances strikes may be prohibited or subject to restriction, it has however emphasised the importance which it attaches, where that is the case, to ensuring adequate guarantees to safeguard to the full the interests of the workers thus deprived of an essential means of defending occupational interests, and has pointed out that the restriction should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage.
3. 26. In this case the arbitrating body is the National Wages Board. This Board consists of a president and six members; the president and four members are appointed by the King, one member represents the interests of the workers and one those of the employers; each of the parties to the dispute appoints an additional member.
4. 27. From the Committee's examination of the case, it therefore appears that the ordinance prohibiting the strike and imposing arbitration was issued in virtue of Constitutional provisions; that this ordinance is an exceptional measure of an altogether temporary character; that it was issued when all attempts at conciliation had failed and after the complainants had refused to submit to voluntary arbitration; that the mode of arbitration imposed-by reason of the composition of the body instructed to proceed thereto-seems to offer all the necessary guarantees of impartiality and, lastly, that the decision by the authorities seems indeed to have been motivated solely by the desire to protect the community against the consequences of a dispute likely to damage the health and even the life of members of this community.

The Committee's recommendations

1. 28. In these circumstances, considering that the temporary measure taken by the Government is not of a nature to prejudice the free exercise of trade union rights, the Committee recommends the Governing Body to decide that the case does not call for further examination.