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- 62. By a communication of 26 August 1987, the Association of Junior Hospital
- Doctors in Denmark (AJHD) presented a complaint of violations of freedom of
- association against the Government of Denmark. It sent additional information
- and allegations in letters dated 1 October 1987, 8 February 1988 and 13
- February 1989. The Government sent its observations on this case in
- communications dated 10 December 1987, 22 November 1988 and 17 April 1989.
- 63. 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
- 64. In its communication of 26 August 1987, the AJHD alleges that the
- Government violated Conventions Nos. 87, 98 and 151 when the Danish Parliament
- passed, on 8 May 1987, Act No. 246 "on changes in the work scheduling for
- junior doctors in the public health service and on renewal and extension of
- their collective agreements" (a copy of the Act is supplied). The Act provides
- that all collective agreements between the Association of County Councils, the
- Copenhagen City Authority, the Frederiksberg City Authority and the Danish
- Ministry of Finance as employers on the one part and the AJHD on the other are
- extended from 1 April 1987 until 1 April 1989, with certain terms (namely,
- average weekly hours of work and special salary adjustments) extended until 1
- April 1991. In addition, under sections 6 and 7 of the Act, the Minister of
- Finance shall establish a board having equal representation of the parties to
- determine certain aspects of the working conditions (such as work, timetables,
- remuneration of doctors on call duty from their residences); the board was to
- decide these outstanding questions before 1 September 1987, failing which an
- umpire would be nominated by the board to settle them with binding effect, in
- other words, through compulsory dispute settlement procedures.
- 65. The complainant explains that the Act was adopted in order to stop an
- ongoing legal strike by the AJHD in some specifically designated departments
- and wards of certain public hospitals. The strike, which had been duly
- notified in accordance with the law, was originally postponed by the
- Conciliation Service. When the Public Conciliator, however, failed to help in
- achieving a solution acceptable to all parties, the AJHD decided to exercise
- its lawful labour rights and went ahead with the planned strike.
- 66. According to the complainant, the strike, which was only allowed to last
- for 22 days, did not affect emergency services and could not in general be
- said to create a public emergency situation, inasmuch as the AJHD had agreed
- to maintain emergency services. In the "General Agreement between the
- Association of County Councils, the Copenhagen City Authority, the
- Frederiksberg City Authority and the Ministry of Finance on the one part and
- the Association of Junior Hospital Doctors on the other part" concerning
- emergency services during the lawful strike, dated 9 March 1987 and a copy of
- which is supplied, the parties agreed, inter alia, that: in case of disasters
- all the medical personnel covered by the work stoppage can be called in; and
- in vital or other situations of urgency the number of employed junior hospital
- doctors determined by local agreements can be increased for a short period by
- agreement; and those junior hospital doctors at work may perform the medical
- work that is vital, that cannot be postponed or is required so as to avoid
- irreversible health consequences. The complainant states that this agreement
- shows that out of concern for the general public and the patients involved, it
- chose not to use its lawful right to strike to the full extent possible.
- Moreover, the AJHD adds that a large proportion of all hospital doctors in
- Denmark are civil servants, and as such are not allowed to strike; these civil
- servants were, therefore, able to augment all emergency services during the
- strike by the junior doctors.
- 67. The AJHD considers that the Danish Government chose to end its lawful
- strike in contravention of international ILO obligations, not to help patients
- in life-threatening situations, but solely in order to alleviate some
- potential long-term effects of the strike, in particular the slow building up
- of queues/waiting lists of people waiting to get medical attention of a
- 68. The complainant stresses that the forced renewal and extension of the
- collective agreements to which it was a party was a unilateral government
- measure which leaves it no opportunities to exercise its right to negotiate
- fully and the legislative intervention in effect prevents the junior doctors
- from exercising their right to strike. The AJHD particularly regrets that it
- was not consulted in advance of the government intervention and had no
- opportunity to exercise any influence upon the position of the Government.
- 69. According to the complainant, the Danish Government already has a
- disreputable record of intervening in the collective bargaining process, and
- other unions have been subjected to such intervention during 1987. This
- practice has recently led to criticism from the ILO: the AJHD refers to the
- complaints lodged with the ILO in 1985 by the Danish Federation of Trade
- Unions (LO) and the Danish Salaried Employees' and Civil Servants'
- Confederation (FTF) (Case No. 1338) which gave rise to criticism of the
- conduct of the Danish Government with respect to its international obligations
- under ratified ILO Conventions. That case concerned the third occasion of
- government intervention in matters regulated by collective agreements in less
- than three years, and, according to the complainant, closely resembles the
- measures which form the basis of the present case. The AJHD quotes the
- Committee on Freedom of Association's 243rd Report, which was approved by the
- Governing Body of the ILO in March 1986 (paragraph 246):
- The Committee hopes that in the future, no similar measures will be taken to
- interfere with free collective bargaining or to restrict the right of workers
- to defend their economic and social interests through industrial action.
- 70. The AJHD points out that this decision from the ILO Governing Body
- apparently had no effect on the Government because it intervened again, this
- time in the junior doctors' dispute. Given the very serious and urgent nature
- of this case, states the complainant, it requests the Committee to consider
- sending an ILO representative to Denmark to examine, in direct contact with
- the social partners and the Government, government intervention in free
- collective bargaining.
- 71. On 1 October 1987, the complainant supplied further information on the
- proceedings before the board set up by Act No. 246 to decide on certain
- disputed provisions of the extended collective agreement before 1 September
- 1987. It states that after ten meetings the board found on 31 August that it
- was not possible to reach any decision, nor was any agreement possible on the
- nomination of an umpire. The Act provides that in such a deadlock situation,
- the Conciliation Service shall nominate the umpire. According to the AJHD, on
- 15 September it was informed who had been nominated as the umpire, but as at
- the date of its communication, it had not yet been contacted by the umpire for
- talks on the outstanding issues.
- 72. In its communication of 8 February 1988, the complainant challenges
- statements in the Government's reply (a copy of which had been sent to it by
- the Government), in particular that the strike was responsible for the serious
- problems facing patients. It also disputes the Government's description of the
- events leading up to the strike. First, the AJHD points out that, in 1981,
- junior hospital doctors entered into an agreement - essentially different from
- the earlier collective agreement - reducing at the request of the employers
- the schedule of working hours to the same length as worked by other public
- servants. According to the complainant, the introduction of the new system of
- working hours gave rise to a number of problems during a transitional phase,
- but as the new rules were incorporated in schedules, they worked better and
- better. During the last few years there had also been a formalised
- co-operation between the National Health Board, the doctors and the employers
- on the introduction of various training experiments, and on a new planning of
- work schedules. These were changes which were possible to effect within the
- framework of the collective agreement of that time.
- 73. Secondly, the AJHD states that any problems of this nature cannot
- warrant intervention by statute. As outlined in the Government's reply, the
- intervention meant that salaries rose to a level corresponding to the level
- agreed for other academic staff in public employment, that working hours were
- reduced, and that a number of other issues were referred for resolution to a
- board with equal representation of the parties. This board - as noted earlier
- - failed to reach agreement, and on 30 December 1987, an umpire made his award
- (a copy of which is provided). The award is considered by the AJHD to be an
- extensive granting of the employers' demands for amendments to the collective
- agreement. One of its consequences is that junior hospital doctors on call
- duty have to attend to more than one ward, which can in no way improve, for
- example, the continuity in the treatment of patients. The award also means
- that the employers will be able to remunerate part of the call duty by
- monetary payment instead of having it credited to the individual's working
- hours, as had been done in the past. This makes the reduction of working hours
- an illusion.
- 74. According to the complainant, irrespective of whether these amendments
- may be considered expedient, a government's wish for amendments to a
- collective agreement cannot warrant the discontinuation of a strike, if this
- strike has been so planned as to prevent serious consequences to patients, a
- situation which had been secured specifically by agreements between the
- employers and the Association of Junior Hospital Doctors.
- 75. In yet a further communication, dated 13 February 1989, the AJHD
- presents supplementary comments on two aspects of its complaint: (1) the
- narrow terms of reference of the board set up by Act No. 246 (section 6) to
- decide on certain disputed provisions failing which an umpire's settlement was
- required; and (2) the measures taken to ensure hospital services during the
- limited strike in April/May 1987.
- 76. First, the AJHD stresses that the provision concerning dispute
- settlement set out in Act No. 246 conformed exactly to the demands made by the
- employers during collective bargaining and, unfortunately, attempts made
- during the adoption of the Act to broaden the board's scope failed. The
- complainant thus considers that the board was not in a position to conduct
- meaningful negotiations and, despite its joint composition, was biased in
- favour of the employers. Added to this, states the AJHD, when the board failed
- to reach agreement and an umpire was called on to assist, his award of 30
- December 1987 made considerable concessions to the employers as regards those
- issues listed in section 6 of the Act. It states that to date most employers
- have still not implemented the umpire's award in relation, for example, to
- reducing the workload of junior hospital doctors.
- 77. Secondly, the AJHD stresses the limited scope and conditions of the
- strike it called. It explains that only 555 of a total of 8,091 doctors
- employed in Danish hospitals were selected to take part in the strike. It
- repeats that the 9 March 1987 "General Agreement" provided for minimum
- services - to be agreed upon with the AJHD - in cases of disasters, situations
- of urgency and the performance of vital medical work that could not be
- postponed. In total, 17 individual agreements were concluded at strike-bound
- hospitals between the hospital owners and the AJHD concerning the number of
- junior doctors appointed to serve during the work stoppage. The "General
- Agreement" also provided for these minimum services to be increased if
- required and this in fact happened at several hospitals. According to the
- AJHD, all requests from the hospital owners for a greater number of serving
- doctors were met by the AJHD. The complainant adds that, both in 1987 and
- previously, Danish Governments have shown that they respect, and themselves
- make active use of, the rights of labour and management to take action in
- connection with collective bargaining. For example, in 1987 the Government
- accepted the entry into effect of the lawfully called strike although it could
- have tabled legislation immediately banning this action. Also, in 1981 the
- Government as an employer locked out almost 1,200 junior hospital doctors of
- the then total of 6,600.
- B. The Government's reply
- 78. In its communication of 10 December 1987, the Government describes the
- events leading up to the passage of Act No. 246. It states that the
- negotiations between the Association of Junior Hospital Doctors and its
- employers (the Ministry of Finance, the Association of County Councils, the
- municipality of Copenhagen and the municipality of Frederiksberg), including
- the negotiations assisted by the Public Conciliator, failed to lead to
- results. A strike then took place and lasted for 22 days.
- 79. The Government considered that a protracted strike in the hospitals
- would have serious consequences for the patients and the operation of the
- hospitals, for example, patients on waiting lists for hospital treatment were
- particularly seriously hit. The inevitable consequence was that this group of
- patients, who were already in a difficult situation, experienced increasing
- uncertainty and insecurity and painful conditions were prolonged. The
- Government refers in this connection to the ILO "Digest of Decisions on
- Freedom of Association" which includes the hospital sector as an "essential
- service" where restrictions on the right to take industrial action are
- acceptable under certain conditions.
- 80. The Government points out that the dispute between the AJHD and its
- employers was not a dispute about pay questions, but about the organisation of
- the work and the working time rules, which normally form an integral part of
- collective agreements. The background to this situation was that conditions
- concerning the organisation of working time in this sector had developed in an
- undesirable direction over recent years. The Government explains that the
- rules in the collective agreement (which were originally intended to be
- training rules) had come - in combination with the other rules of the
- agreement on working time such as the rules on stand-by duty - to operate as a
- staffing regulation. Gradually, it also became very difficult to ensure the
- necessary and proper training of doctors. In addition, a specialist advisory
- body, the National Health Board, had declared that in the longer perspective
- there would be problems in maintaining the quality of the treatment of the
- patients; it strongly emphasised the need for a redirection of this
- development, both to the Government and to the regional hospital authorities.
- 81. The Government thus found it necessary to do something to solve these
- problems in a way covering long-term perspectives, which both doctors and
- hospital-owners could accept, so that disputes would not arise in connection
- with future negotiations. On the basis of these considerations, the Government
- found it necessary to intervene in the dispute by passing legislation. On 5
- May 1987 the Minister of Labour met with representatives of the Association of
- Junior Hospital Doctors and at this meeting he presented the bill to these
- representatives. The Act adopted renews the collective agreement concerning
- pay and other working conditions for junior hospital doctors (concluded
- between the Ministry of Finance, the Association of County Councils, the
- municipality of Copenhagen and the municipality of Frederiksberg on the one
- side and the AJHD on the other), and prolongs six other agreements concluded
- between the same parties which, in respect of certain pay and working
- conditions, refer to the collective agreement for junior hospital doctors.
- 82. The Government states that while the pay segment of the agreements was
- not in dispute, the reorganisation of working time - based on the reasons
- outlined above - was. The Act therefore provided that a joint board shall be
- set up with a view to deciding these disputed matters so that the parties may,
- to the largest possible extent, influence the decision. If they failed to
- reach majority agreement before 1 September 1987 on all matters, an umpire was
- to be appointed to make the final decision. The Government recognises that,
- unfortunately, the joint board failed to agree on the disputed matters and an
- umpire was therefore appointed by the Conciliation Board. The umpire had
- meetings with the parties during the last two weeks of October 1987 with a
- view to laying down the further procedure.
- 83. In view of all the information supplied, the Government is of the
- opinion that there is no need for a direct contacts mission to visit Denmark.
- 84. In its letter of 22 November 1988, the Government first refutes the
- complainant's assertion that it was not the strike that was responsible for
- the serious situation facing patients. On this point, it supplies statistics
- from the Ministry of Health to show the improvements over recent years in
- hospital admissions reducing waiting list numbers and to show the drop in the
- average waiting time for certain operations (e.g. cataracts, sterilisation and
- varicose veins). According to the Government, the results of the various
- measures to reduce hospital waiting lists were seriously threatened by the
- strike in the spring of 1987 as it was in these very fields that the treatment
- of patients was jeopardised. The legislative intervention was a prerequisite
- for a positive development in this field in 1987. The fact that the agreements
- which had been concluded guaranteed the treatment of patients with acute
- diseases does not change the fact that a protracted strike would have had
- serious consequences for patients on waiting lists. In other words, the fact
- that agreements were concluded between the employers and the Association of
- Junior Hospital Doctors exempting certain fields from the work stoppages was
- immaterial since the agreements concerned emergency duty with a view to
- treatment of acute cases and they were thus without importance for the
- majority of the patients on the waiting lists. The agreements could not make
- legislative intervention unnecessary.
- 85. Secondly, the Government contests the Association of Junior Hospital
- Doctors' denial that the legislation was necessary in order to ensure the
- quality of the treatment of the patients and the training of junior doctors.
- According to the complainant, there had been some transitional problems which
- were solved through a better planning of work and the introduction of
- experiments with the training of doctors. The Government, however, maintains
- that the quality of training of doctors was at risk and, in this connection,
- it refers to a study undertaken by the Association of County Councils in
- Denmark of the average physical presence of junior doctors at the hospital
- wards. This study showed that the average physical presence at the wards
- varied from 25 to 36 hours for a 39-hour week. The Government adds that the
- doctors are in all cases paid for more than 39 hours per week (due to
- provisions in the agreement concerning inclusion of stand-by duty in the
- calculation of working hours).
- 86. Thirdly, as regards the complainant's criticism of the award made by the
- umpire on 30 December 1987 as "an extensive granting of the employers'
- demands", the Government considers that it is still premature to say anything
- about the consequences of the award. However, on a preliminary basis, the
- Government reports that the Ministry of Health finds that the basic problems
- in connection with the agreement applying to junior doctors have not been
- solved. The Ministry of Finance points out that the question of common duty
- arrangements for several wards is a medical question in the sense that duty
- teams must comply with responsible medical standards, but it is up to the
- hospital administrations and not the junior doctors to decide these matters.
- It is actually said in the award that the hospital authorities must - prior to
- introducing common duty arrangements between several wards - obtain a medical
- opinion from the committee of chief doctors at the hospital concerned and must
- also give the Association of Junior Hospital Doctors the possibility of
- stating its views.
- 87. Against this background the Government maintains that the dispute with
- the Association of Junior Hospital Doctors had ended in a deadlock. There was
- no prospect that this strike could lead to a solution to the serious situation
- in the hospitals. The strike meant that the possibility of offering treatment
- to the many patients waiting for operations became more and more
- unpredictable. It thus considers its action was justified by the human
- suffering which, as a consequence, would have been imponderable.
- 88. In a further communication of 17 April 1989, the Government replies to
- the complainant's most recent letter expanding on two aspects of the case,
- namely (1) the terms of reference of the board set up by Act No. 246; and (2)
- the scope and conditions of the strike. First, the Government states that the
- issue of the organisation of work in hospitals has given rise to disputes for
- many years but has always been dealt with in doctors' collective agreements
- and will continue to be so (because the arbitrator's decision in the present
- case forms an integral part of the various collective agreements). The
- Government claims that in drafting the proposed legislation it aimed to
- restrict the scope of intervention as much as possible; thus section 6 of the
- Act is confined to three specific matters for which a solution was so
- important. The Government is astonished that the doctors now consider that
- other matters should have been covered by the Act as well. It stresses that
- the Act itself did not state how these issues should be solved, but left it to
- the parties to solve them, failing which an independent arbitrator was to have
- the final decision. It adds that unfortunately neither the employees nor the
- employers were satisfied with that decision.
- 89. Secondly, the Government is of the opinion that it is not of decisive
- importance how many doctors participated in the strike; the important point is
- its consequences on the health of the population. It stresses that, at the
- time when the Government decided to intervene, the strike had been running for
- 22 days and there was no prospect of the parties themselves finding a
- solution. It continues to recognise the doctors' right to free collective
- bargaining and collective industrial action. It stresses that this particular
- intervention was justified by the specific circumstances of the case, was of
- limited scope and duration, and was necessary to stop a protracted strike
- which led to human suffering.
C. The Committee's conclusions
C. The Committee's conclusions
- 90. The Committee observes that the facts of this case are not in dispute:
- both the complainant and the Government explain that on 8 May 1987 Act No. 246
- "on changes in the work scheduling for junior doctors in the public health
- service and on renewal and extension of their collective agreements" put an
- end to a 22-day strike in the hospital sector and prolonged certain terms and
- conditions of employment of junior doctors for a two- or four-year period.
- 91. The parties to this complaint do disagree, however, on certain aspects
- of the circumstances leading to the adoption of Act No. 246. In the first
- place, the complainant, on the one hand, alleges that there was no advance
- consultation with it on this government intervention; the Government, on the
- other hand, states that on 5 May the Minister of Labour met with
- representatives of the AJHD to show them the Bill in question.
- 92. The Committee has said in the past (see, for example, 202nd Report, Case
- No. 949 (Malta), para. 275) that while the refusal to permit or encourage the
- participation of trade union organisations in the preparation of new
- legislation or regulations affecting their interests does not necessarily
- constitute an infringement of trade union rights, the principle of
- consultation and co-operation between public authorities and employers' and
- workers' organisations at the industrial and national levels is one to which
- importance should be attached, in accordance with the provisions of the
- Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113).
- In the present case, the Committee cannot but regret that there was only one
- meeting with the workers' organisation involved in the specific piece of
- legislation affecting the working conditions of its members.
- 93. Secondly, the complainant and the Government disagree as to the
- consequences of the strike during April-May 1987: the AJHD alleges that only
- 555 out of over 8,000 doctors took part, that only certain wards or
- departments of certain hospitals were affected and that full provision had
- been made for the continuance of minimum services and for emergency services
- during the strike (in a "General Agreement" signed on 9 March 1987 and in no
- less than 17 further agreements for various individual hospitals). The
- Government was concerned about the immediate suffering of patients on waiting
- lists as well as the long-term effects of a prolonged doctors' strike, and it
- wished to settle once and for all the question of the organisation of working
- time so as to avoid further industrial action in future negotiations.
- 94. In past cases the Committee has pointed out that the right to strike may
- be restricted or even prohibited in the case of public servants acting in
- their capacity as agents of the public authority, or in essential services in
- the strict sense of the term, i.e. services, the interruption of which would
- endanger the life, personal safety or health of the whole or part of the
- population. (See, for example, 236th Report, Case No. 1140 (Colombia), para.
- 144. ) Under this criterion the Committee has considered that the hospital
- sector is an essential service (see, for example, 217th Report, Case No. 1091
- (India), para. 443)where the supervisory bodies accept that government
- measures may restrict or prohibit strike action.
- 95. The Committee notes that the complainant argues that its agreement to
- the provision of extensive emergency services during the strike meets the ILO
- criteria on minimum services and thus removes these public hospitals from the
- scope of the definition of essential services. The Committee, however, is of
- the opinion that the very nature of public hospitals does not permit
- derogations from this important principle. The fact that some doctors, some
- wards and some services functioned during the strike does not change the fact
- that the functioning of other wards and services were jeopardised for a long
- period.
- 96. At the same time, the Committee would recall the principle that where
- the right to strike is restricted or prohibited in certain essential
- undertakings or services - being hospitals in the present case - adequate
- protection should be given to the workers concerned to compensate them for
- this limitation on their freedom of action. This could be done, for example,
- by providing adequate, impartial and speedy conciliation and arbitration
- procedures in which the parties concerned can take part at every stage and in
- which the awards, once made, are fully and promptly implemented (see, for
- example, 236th Report, Case No. 1263 (Japan), para. 270). The Committee notes
- in the present case that Act No. 246 (section 8) prohibits industrial action
- for the life of the extended collective agreements and (section 9) provides
- for settlement of issues concerning violation and interpretation of the
- extended collective agreements "in accordance with the customary industrial
- relations codes of practice covering the field in question". For those matters
- still in dispute when the Act was passed, sections 5, 6 and 7 provide for the
- creation of an equal representation/joint board to decide these matters before
- 1 September 1987 in default of which this board or the Conciliation Service
- shall nominate an umpire to decide the issues.
- 97. The Committee notes that, in accordance with the above-mentioned
- provisions of Act No. 246, during the last weeks of October 1987, an umpire
- appointed by the Conciliation Service (an independent government institution
- composed of three conciliators appointed by the Minister of Labour for
- three-year terms in accordance with the Conciliation in Industrial Disputes
- Act, 1934, as amended) did hold meetings with the parties in an attempt to
- settle the outstanding issues. His award, handed down on 30 December 1987,
- does not appear to completely satisfy all the parties (both the complainants
- and certain government ministries have voiced their concerns). It is not for
- the Committee to rule on the contents of that award (which concern technical
- questions such as the work timetables and remuneration of doctors on call duty
- from their residences). It is, however, for the Committee to verify whether
- the way that this form of compensation for the removal of access to industrial
- action complies with its principles.
- 98. Under the criterion referred to above, the Committee considers that both
- the general procedure for the settlement of disputes concerning the extended
- agreements and the specific procedure (joint board/independent umpire) created
- by virtue of sections 5 to 7 of Act No. 246 are adequate, impartial and speedy
- and involve the parties. As such they do safeguard the interests of the
- workers who are obliged to maintain industrial peace under the legislation in
- question.
- 99. The third aspect of this complaint centres on the allegation that Act No.
- 246 is yet another example of government intervention in voluntary collective
- bargaining. The Committee observes - as does the complainant - that this is
- not the first time in recent years that it has been called on to examine the
- Danish Government's intervention through legislation in both private and
- public sector collective bargaining processes. Although the pieces of
- legislation at issue in the earier cases (see 243rd Report, Case No. 1338,
- paras. 209 to 247, approved by the Governing Body in March 1986, followed up
- in the 1987 observation on Denmark's observance of Convention No. 98 made by
- the Committee of Experts on the Application of Conventions and Recommendations
- and 259th Report, Case No. 1443, paras. 163 to 197, approved in November 1988
- and also referred to the Committee of Experts) are not called into question
- here, they contained very similar provisions. The Committee is therefore bound
- to refer the Government to the same fundamental principles upon which it based
- its criticisms of the Government's earlier interventions. These are that a
- basic aspect of freedom of association is the right of workers' organisations
- to negotiate wages and conditions of employment freely with employers and
- their organisations, and that any restriction on this right should be imposed
- as an exceptional measure and only to the extent necessary, without exceeding
- a reasonable period; any restriction should be accompanied by adequate
- safeguards to protect the living standards of the workers.
- 100. In addition, the Committee would recall that Article 6 of Convention
- No. 98 permits the exclusion from this basic right of "public servants engaged
- in the administration of the State", a term which the ILO supervisory bodies
- have looked at in the light of the distinction to be drawn between civil
- servants employed in various capacities in government ministries or comparable
- bodies and other persons employed by the government, by public undertakings -
- such as public hospitals in this case - or by independent public organisations
- (see, for example, 236th Report, Case No. 1267 (Papua New Guinea), para. 596).
- 101. In this case, therefore, the Committee considers that the Association
- of Junior Hospital Doctors legitimately had enjoyed the right to negotiate the
- terms and conditions of employment of junior hospital doctors by means of
- collective agreements until Act No. 246 put an end to all possibility of
- negotiations for the life of the extended agreements, i.e. until April 1989 or
- April 1991.
- 102. Given the facts of the present case, it appears to the Committee that
- the government intervention went beyond the criteria set out in the above
- paragraphs concerning acceptable restrictions on the voluntary fixing of
- conditions of employment. The method used went beyond the extent necessary and
- a reasonable period by prolonging the terms of the agreements for two, and in
- some cases four years. In this connection, the Committee notes that no
- evidence was put forward to show that the Danish economy as a whole or the
- junior hospital doctor sector itself was faced with an emergency situation
- such as to justify intervention in voluntary collective bargaining. Moreover,
- it notes the Government's commitment to the principle of the doctors' right to
- free collective bargaining apart from this one particular intervention, which
- was repeated in the Government's most recent communication.
The Committee's recommendations
The Committee's recommendations
- 103. In the light of its foregoing conclusions, the Committee invites the
- Governing Body to approve the following recommendations:
- a) The Committee considers that the statutory renewal and extension of
- collective agreements covering junior hospital doctors was not in conformity
- with the principle of free collective bargaining with a view to the regulation
- of terms and conditions of employment under Article 4 of Convention No. 98,
- ratified by Denmark.
- b) The Committee considers, however, that in the circumstances of this case
- the legislative intervention which put an end to the strike of the junior
- hospital doctors cannot be considered to be an infringement of the ILO
- principles on the right to strike.
