Report in which the committee requests to be kept informed of development - Report No 217, June 1982

Case No 1099 (Norway) - Complaint date: 08-DEC-81 - Closed

1. 449. The complaint of the Norwegian Society of Engineers (NITO) is contained in a communication dated 8 December 1981. The Government replied in a communication dated 23 April 1982.
2. 450. Norway has ratified the Freedom of Association and Protection of the Eight to Organise Convention, 1948 (No. 87) and the Right to organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 451. The NITO alleges that the Government violated Conventions Nos. 87 and 98 by adopting, on 21 August 1981, a Provisional ordinance which imposed compulsory arbitration and prohibited any strike action relating to a collective bargaining dispute between the NITO and Kongsberg Vapenfabrikk A/S, an industrial production company wholly owned by the Government but organised as an autonomous company.
2. 452. The complainant explains the background of the situation as follows: the NITO and the undertaking had for many years concluded collective agreements of one year's duration; throughout May, June and July of 1981 the parties held negotiations with a view to concluding a new collective agreement to commence on 1 July 1981; as no agreement could be reached, the NITO notified the company on 27 July that all its members would resign their jobs collectively as of 17 August 1981, notification first being given in accordance with the provisions of the Labour Disputes Act, 1927; about 850 members of the NITO employed in the undertaking were affected by this notification.
3. 453. In accordance with section 29(2) of the Labour Disputes Act, the National Conciliation Officer immediately issued an order prohibiting any stoppage of work and summoned the parties concerned to compulsory conciliation proceedings which took place, in vain, between 5 and 18 August 1981. The complainant points cut that under Norwegian legislation, as such proceedings had not succeeded, it could have entered into a fully legal strike in accordance with the already given notification as of midnight 18 August. However, according to the complainant, on that date the Minister of local Government and Labour urged the parties to continue conciliation, and this was agreed to by the parties; thus no strike took place at that time. Nevertheless, the following day, the National Conciliation Officer once again concluded that an agreement between the parties could not be reached. The Minister then informed the parties that she would propose the adoption of legislation referring the dispute to compulsory arbitration before the National wages Board. The NITO expressed its disagreement with her opinion that the dispute in question was one to justify such action, but did accept to postpone strike action until a decision was taken regarding legislation. As a provisional ordinance prohibiting strike action was subsequently adopted, the NITO did not carry cut a strike.
4. 454. The complainant acknowledges that neither Convention No. 87 nor Convention. No. 98 expressly guarantees the right to strike, but it stresses that the right to strike is a legitimate and essential means for workers and their organisations to protect and promote their occupational interests. In particular, it considers that the right to strike is essential for full compliance with Article 4 of Convention No. 98, whereby measures shall be taken to encourage and promote the full development and utilisation of machinery for voluntary collective 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. It explains that if employers can expect compulsory arbitration to be imposed if no agreement is reached through collective negotiation, they will have little reason to engage themselves seriously in negotiations and to assess the workers' demands on their merits. The complainant also recognises that the right to strike in certain circumstances may be restricted or even prohibited, but it points out that the employees concerned in this dispute cannot be considered as "public servants" or employees in "essential services". The members of NITO employed at the undertaking are engineers and technicians; although a strike by such important employees would affect production, forcing the remaining 3,600 employees into temporary leave of absence without pay, these employees - in accordance with the Basic Agreement - would for 14 days receive their ordinary wages and thereafter be entitled to unemployment benefits. As regards the strike situation from the point of view of the undertaking, the complainant points out that such a work stoppage would not affect the supplies of food, water, medicaments, electricity or other necessities to the general public or essential functions, and would in no way cause undue hardship to the community. As 80 per cent of the production of the undertaking is for export, the economic consequences would only be such as to force postponement or delay in effecting orders and possibly the loss of contracts and market shares. The VITO points out that even from the point of view of Norwegian industry in general, the effects of a stoppage of work at the undertaking would not have been particularly extensive due to the small share of the company's production being purchased by domestic enterprises; only a delay in activity could be envisaged and only a very prolonged strike could possibly lead to further consequences. To conclude, the complainant states that leave of absence due to a strike, and a strike itself, would have no significant economic or social effects for the workers of the undertaking concerned nor for the local community nor for Norwegian industry in general.
5. 455. The complainant points out that there is no Norwegian legislation empowering the Government to impose compulsory arbitration or to prohibit industrial action. Such measures can be implemented only by the passing of an ad hoc Act by Parliament, or a provisional ordinance as in the case at issue, an action which has traditionally been viewed as exceptional and one that in previous years has been used sparingly. However, according to the complainant, the Government has been increasingly interfering in collective bargaining as concerns fixing of wage increases. Although to a certain extent this has been done during or after tripartite consultations with employers' and workers' organisations, the complainant states that such consultations have been carried out within the framework of a set of consultative bodies, such as the Cabinet Contact Committee, where the central trade union Confederation - the Confederation of Trade Unions (LO) - is the only trade union organisation represented. In its opinion, other trade union organisations have not been able to present their views or have them taken into consideration. According to the complainant, the result of government intervention in this area has been the prohibition of strikes and imposition of compulsory arbitration in all but one dispute, where a strike had been legally notified and compulsory conciliation did not succeed, in the last two years.
6. 456. The complainant states that even if it might be considered acceptable for a government, as an exceptional measure and for a limited period of time, to impose stabilisation measures to safeguard the economic position of its country, during the application of which it would not be possible for wage rates to be fixed freely through the medium of collective bargaining, this is not sufficient justification for the measures taken in the particular situation complained of. In effect, the NITO points out that the wage claims which were at the root of this complaint were not so large as to justify public intervention to protect the undertaking, in particular in view of the fact that the engineers and technicians in the undertaking had seen a decrease in their wage level over the past few years. It cites examples of wage adjustment agreements already entered into by the undertaking with other groups of employees in which wage increases more or less equal to those demanded by the NITO during collective bargaining on behalf of the engineers and technicians had been granted.
7. 457. Finally, the complainant states that if restrictions on the right to strike are to be accepted in this particular situation, the normal requirement of compensatory proceedings - such as impartial and speedy arbitration and conciliation - have not been met by the Government. It points out that the proceedings imposed by the Provisional Ordinance have not yet terminated, but it does not contend that such proceedings before the National Wages Board are insufficiently speedy on the other hand, it is of the opinion that the composition of the Board is not such as to render it impartial: the Board consists of a president and six members; the president and four members are appointed by the cabinet, one member represents the interests of the workers and one those of the employers. In addition, the parties to the dispute at hand appoint one member each. The complainant points out that the permanent workers' representative appointed by the Cabinet without exception has been a high-ranking elected official of the 10, who, in the complainant's view, might not fully represent the interests of the trade union which is a party to the dispute in question. Lastly, the complainant points out that even if the National Wages Board is formally independent, it has in fact rigorously subjected all wage adjustments to the general maximum wage increase level laid down by the Government when formulating its economic policy, and thus appears to have been instrumental in weakening collective bargaining.

B. The Government's reply

1. 458. In its reply of 23 April 1982, the Government verifies the complainant's description of the background to the situation. It emphasises that in Norway there is no standing legislation authorising the prohibition of strikes. Where it becomes necessary to introduce such measures, the Constitutional bodies concerned consider the detrimental effects in each particular case and an attempt is always made to find voluntary solutions before proceeding to such a serious step. In the present case, explains the Government, both the National Conciliation Officer and the Minister of Local Government and Labour had tried to bring about a voluntary solution, but in vain. The Government states that in only one case has it previously been questioned whether this practice of ad hoc legislation is in accordance with the international Conventions ratified by Norway: Case No. 317 was examined by the Committee on Freedom of Association in 1963 and its findings, in the Government's opinion, did not criticise the manner in which the Government had dealt with the matter.
2. 459. The Government explains that the notified strike by NITO members at the Kongsberg Vapenfabrikk undertaking would almost immediately have had serious consequences for all the 3,600 other employees, that is, they would have all been given temporary leave of absence without pay because the tasks performed by the NITO engineers in the whole concern are so essential that a complete stoppage of production would have been inevitable. Therefore a labour force of considerable dimensions by Norwegian standards would have been affected. According to the Government, employees who would have been so laid off might not have received unemployment benefits under the National Insurance Act and therefore this aspect of the complainant's arguments is irrelevant. As regards the effect of the proposed strike on other industrial concerns and companies, the Government states that the undertaking receives considerable deliveries from other firms and itself sells goods and services to others, in addition to a large export market. The Government states that it was particularly concerned over the possibility of maintaining deliveries to its constantly growing petroleum industry or to its defence forces, which also receive supplies of material essential for maintaining a state of preparedness from the undertaking in question. Lastly the Government states that the undertaking is the dominant enterprise in several local communities which have little industry, and that therefore the continued production of this undertaking was necessarily a matter of interest to the public authorities. After an over-all evaluation of the detrimental effects on all levels of industry, the Government considered that it had no alternative but to refer the conflict to a neutral wage Committee for solution rather than to allow a lengthy strike to proceed.
3. 460. In reply to the complainant's allegation that compulsory arbitration is now used systematically to undermine the right to strike, the Government states that during the period from 1953 to 1981, the imposition of arbitration through a wages Committee has been used only approximately three times a year. In its opinion, in relation to the number of agreements concluded annually, this is a small number. It states that the authorities are fully aware of the dangers inherent in an uncritical use of such compulsory wages Committees, one of them being the possibility of undermining the right to negotiate freely. Therefore it stresses that the necessity of resorting to such procedures is carefully considered in each particular case.
4. 461. As regards the complainant's allegation as to the impartial composition of the National Wages Board, the Government states that five of the seven permanent members are appointed for a period of three years and that three of the permanent members are quite independent of the Government and of the employers' and workers' organisations. The two members representing the employers' and employees' interests are required to have special knowledge of the nation-wide conditions of pay and work that are conclusive in deciding the level of pay in Norway. The Government states that the representatives of the two largest organisations in industry - the Norwegian Employers' Confederation and the 10 - act in an advisory capacity and have no independent right to vote. According to the Government, the Wages Board Act contains comprehensive provisions regarding the Board's proceedings, including the right of parties to appear with authorised representatives as spokesmen and the right of the Board to obtain all additional information which it considers as necessary. In the Government's opinion, the procedural rules and the composition of the Wages Board fully satisfy the requirement that an arbitration body be independent.
5. 462. According to the Government, the proceedings before the National Wages Board were completed on 25 November 1981 and resulted in the award of a wage increase which exceeded that negotiated by the national trade union Confederation and employers' organisation.
6. 463. Finally, the Government states in reply to the complainant's allegation of a lack of representativity on tripartite consultative bodies, that the two largest trade union organisations have now, as a temporary arrangement, been given the opportunity to meet with any of the Cabinet ministers as these organisations so wish. A possible expansion of the Cabinet Contact Committee will be closely considered after the conclusion of the pay negotiations in the spring of 1982. In stating this, the Government does, however, point out that such questions do not concern the situation at issue.

C. The Committee's conclusions

1. 464. This case concerns alleged government intervention in the legal activities of the complainant trade union organisation through the adoption of special legislation prohibiting that organisation from calling a strike in a particular dispute and imposing compulsory arbitration before a board which, in the complainant's opinion, is not impartial. The complainant also alleges that certain tripartite consultative bodies are not fully representative of the workers' interests.
2. 465. As regards the allegation, that certain tripartite bodies are not fully representative of all trade union organisations in the country, the Committee notes that the Government has adopted a temporary arrangement by which two of the major trade union organisations are being given the opportunity to meet and discuss with Cabinet ministers and that the Government is considering the expansion of one particular tripartite consultative body in the near future. In view of this, the Committee considers that this aspect of the case does not call for further examination.
3. 466. The Committee notes that while the background to the situation in question is not in dispute, the complainant's version of the facts and the Government's explanation as to why the special legislation was adopted are contradictory. Both parties give detailed descriptions as to the non-essential or essential nature of the undertaking in which the strike prohibition was imposed, and both parties give detailed descriptions of the composition of the National Wages Board which was called upon to arbitrate the dispute as a compensatory procedure for the less of the right to strike.
4. 467. As regards the prohibition on the right to strike, the Committee notes that the legal basis of the legislation introducing the special measure is not in question. The issue, it observes, as does the complainant, is the principle that although industrial action such as strikes by workers is generally recognised as a legitimate means of defending their occupational interests, this could be restricted or even prohibited in the civil service or in essential services in the strict sense of the term, i.e. services whose interruption would endanger the existence or well-being of the whole or part of the population, under this criterion, the Committee has considered that, for instance, the hospital sector is an essential service. Applying this criterion to the particular circumstances of the present case, the Committee notes the information supplied concerning the general economic consequences of a strike, but considers that the withdrawal of services by technicians and engineers in the undertaking concerned, while possibly leading to a close-down in production and the lay-off of 3,600 other employees, would not endanger the existence or well-being of the whole or part of the population. It is accordingly of the opinion that the legislative action taken by the Government which resulted in the total exclusion of this particular category of employees from the right to strike was inconsistent with the principles of freedom of association.
5. 468. As regards the further allegation that the body charged with the compulsory arbitration is not impartial, the Committee notes that, according to the Government, adequate guarantees of impartiality and rapidity were accorded to the technicians and engineers by the existence of the independent and impartial National Wages Board. After examining the composition and rules of procedure of this body, in particular as regards the right to vote, the Committee does not find itself in a position to uphold the allegation that the composition or procedures of the Board are such as to call into question its impartiality. Moreover, the Committee notes that the parties to the dispute were represented on the National Wages Board when it dealt with the matter.
6. 469. Finally, the Committee notes that, according to the Government, the proceedings before the National Wages Board were completed on 25 November 1981, resulting in the award of a wage increase to the technicians and engineers involved in this particular dispute. The Committee therefore understands that the Provisional ordinance of 21 August 1981 now ceases to have effect, and would appreciate confirmation of this from the Government.

The Committee's recommendations

• Recommendations of the Committee
  470. 470 In these circumstances, the Committee recommends the Governing Body to approve the following conclusions:
       • (a) The Committee considers that the allegation relating to the nor.-representativity of certain tripartite consultative bodies in Norway does not call for further examination.
       • (b) As regards the legislation prohibiting the right to strike of certain employees in a government-owned autonomous undertaking, the Committee considers that, despite the detailed information supplied by the Government as to the economic consequences of any such strike, the legislative action taken by the Government which resulted in the total exclusion of this particular category of workers from the right to strike was inconsistent with the principles of freedom of association according to which strikes may only be prohibited or restricted in services of a strictly essential character, that is those whose interruption would endanger the existence or well-being of the whole or part of the population.
       • (c) As regards the allegation that the compensatory procedures provided by the Government in case of the loss of the right to strike are not sufficiently impartial, the Committee does not find itself in a position to uphold the allegation that the composition or procedures of the body in question - the National Wages Board - are such as to call into question its impartiality.
       • (d) Finally, the Committee notes that the proceedings before the National Wages Board have terminated, resulting in a wage increase for the employees concerned. It understands that the Provisional Ordinance of 21 August 1981 therefore ceases to have effect and it would appreciate receiving confirmation of this from the Government.