Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 330, Marzo 2003

Caso núm. 2178 (Dinamarca) - Fecha de presentación de la queja:: 27-FEB-02 - Cerrado

Allegations: The complainants allege that the Act on part-time work will intervene in previously concluded collective agreements and will prevent social partners from freely negotiating in future on this matter.

1. 553. This joint complaint is contained in a communication dated 27 February 2002 from the Danish Confederation of Trade Unions (LO), the Salaried Employees’ and Civil Servants’ Confederation (FTF) and the Danish Federation of Professional Associations (AC).
2. 554. The Government of Denmark transmitted its reply in communications dated 1 May and 17 October 2002.
3. 555. Denmark 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. The complainants’ allegations

1. 556. The complainant organizations are the three central organizations of employees in Denmark. They allege that the Bill amending the Act on the Implementation of the EU Directive on Part-Time Work (Bill 104) will invalid restrictions on part-time work negotiated in previous collective agreements and will prevent social partners from freely negotiating on this matter, thus contravening Conventions Nos. 87 and 98, and freedom of association principles. They submit that Bill 104, which will affect more then 800,000 public employees whose collective agreements were renewed on 1 April 2002, is a statutory intervention in the collective bargaining process, which cannot be justified by a wish for increased recourse to part-time work.
2. 557. According to an LO report on the Danish labour market conditions, prior to the Bill, 96 per cent of the labour market already had access to part-time work; and 386,000 persons are part-time workers, which represents about 14 per cent of the Danish workforce. A large number of collective agreements have dealt with employment matters in relation to part-time work through voluntary bargaining. Almost all existing collective agreements include provisions protecting workers in this respect, for instance: minimum and maximum number of working hours; protection against abuse by the employer of part-time employment; obligation to discuss this issue with workers and representative trade unions in the enterprise. The complainants give as an example article 11 of the largest collective agreement in the private sector, concluded between the Central Organization of Industrial Employees (CO-Industri) and the Confederation of Danish Industries. Except for the minimum 15-hour limit for part-time work, all such negotiated provisions will become invalid and it will not be possible in future to negotiate collective agreement provisions on this subject.
3. 558. When tabling the Bill, the Government stated among its objectives the necessity to ensure that individual workers, in agreement with the employer, had an opportunity to work part time, for instance to take care of sick family members, and to give senior workers the possibility to withdraw gradually from the labour market, rather than having to retire overnight. However, the complainants point out that the Bill overlooks the abovementioned social provisions in collective agreements which already take into account such gradual withdrawal, and that it does not grant a legal claim to part-time work, which the employer may refuse without having to give any reason.
4. 559. On 1 February 2002, the President of the Central Organization of Industrial Employees and the Managing Director of the Danish Industry Association wrote a joint open letter to the Danish Parliament, stating inter alia:
5. … when it comes to regulation of conditions on the labour market, such conditions are best regulated by agreement between parties rather than by legislation. … The collective bargaining system has created a framework for stability and development of enterprises to the benefit of employment, exports and living standards. … The Danish model contains a number of built-in balances, which will shift if the Parliament intervenes in the collective agreements by passing legislation. … As parties to collective agreements, we urge the parliamentary parties to respect the division between the agreements and legislation, which is a foundation of the Danish model. Should the Parliament nevertheless want to legislate on collective agreement matters, we urge that this takes place after thorough consultations and in close harmony with the collective agreement parties.
6. 560. According to the complainants, the Bill aims at completely free access to part-time work, thus removing the right to full-time work, with enormous consequences for a number of low-paid workers. Furthermore, the existing guarantees for workers who are already employed on a part-time basis are also removed. These will be left solely to the narrow interests of enterprises. Part-time workers will be guaranteed a minimum employment of not more than 15 hours if the relevant collective agreement so provides.
7. 561. Contrary to the intentions stated by the Government, the Bill does not provide workers with any legal claim to a reduction of working time, since the employer can refuse to give part-time work without giving any reason. Employers have all the rights and may force a worker to accept part-time work. Furthermore, the Bill does not give workers the right to escape part-time work and obtain a full-time position.
8. 562. The amendment represents a permanent intervention in collective agreements. It is a well known fact that during collective bargaining, employers often request increased flexibility in relation to working time; these requests are usually met by trade unions in exchange for concessions in other areas. The Bill favours only employers, which are now given full flexibility without having to make any concessions.
9. 563. The complainants conclude in summary that the legislation:
10. – will intervene in hundreds of already concluded collective agreements;
11. – will have a direct impact on collective bargaining for a very long period;
12. – not only changes collective agreements conditions but entails the complete removal of large parts of collective agreements, which are made invalid;
13. – has not been negotiated with workers and their organizations;
14. – will restrict in future the workers’ right to freely negotiate collective agreements;
15. – was not necessary, as the Government’s goals could have been attained by voluntary agreements.
16. B. The Government’s reply
17. 564. In its communication of 1 May 2002, the Government states that the purpose of the Bill amending the Act on the Implementation of the EU Directive on Part-time Work, was to ensure that employers and employees who wish to do so could in future conclude agreements on part-time work, without obstacles or restrictions flowing, for instance, from collective agreements. However, existing collective agreement provisions would not be invalidated until the time where such agreement could be denounced.
18. 565. In its communication of 17 October 2002, the Government points out that since the submission of the complaint significant amendments were made to Bill 104 before its adoption on 4 June 2002 as the Act on Part-Time Work (“the Act”). The Government consulted the interested parties prior to the adoption of Bill 104, and negotiated with LO before making final amendments.
19. 566. As regards the background for the legislative amendment, the Government explains that, in the biggest bargaining field in the private labour market, covered by the Danish Employers’ Confederation (DA) and LO, 35 per cent of employees had free access to part-time work; about 6 per cent had no access to part-time work at all (for instance in the graphic sector) and 59 per cent only had restricted access to part-time work (restricted access means, for example, that a full-time employee can only take on a part-time job if another full-time job is established at the same time, as is the case in the industrial sector). There has been in recent years a trend towards a higher degree of freedom in this respect but there remained a number of sectors without access to part-time work, or with so many restrictions that it was virtually excluded for most of the employees concerned. The Government considers that such prohibitions and restrictions in collective agreements are not in harmony with a modern flexible labour market; it also wanted to permit employees better to reconcile working and family life, to care for sick relatives and to permit the gradual withdrawal of senior workers. The Government therefore found it necessary to adopt a legislation on the subject.
20. 567. The Government confirms that the Act does not take effect until the existing collective agreements expire and, therefore, does not intervene in or invalid existing collective agreements.
21. 568. The Act provides that an employee and the employer are free to agree that the employee works part time irrespective of the existence of any direct or indirect prohibitions or restrictions on this right, for instance by virtue of collective agreements, custom or practice. It is however still possible to maintain an upper limit of 15 hours per week. As this requires an agreement between the employer and the employee, neither of them may unilaterally require part-time work: there is thus no statutory right to work part time.
22. 569. While the Act ensures the individual right of employees to conclude an agreement with the employer on part-time work irrespective of any rules on this issue in the relevant collective agreement, existing restrictions in a collective agreement concerning access to part-time work still apply if there is no agreement between the employee and the employer.
23. 570. Under section 4(2) of the Act, it is up to the employees to decide whether they wish to be accompanied by an adviser, shop steward or local trade union representative, when negotiating with the employer about part-time work. The employee also has the right not to be accompanied by an adviser.
24. 571. Under section 4(3) of the Act, if an employee is dismissed for refusing or requesting to work part time, he is entitled to compensation, which supplements the general protection against unfair dismissal. This protection extends to cases where an employee is dismissed because the employer, instead of having one full-time employee, prefers to split the job into two part-time jobs. In addition, section 4(a)(4) of the Act establishes a presumption and a reversal of the onus of proof in cases of dismissal related to a refusal or a request to work part time.
25. 572. As regards some of the specific points raised by the complainants, the Government confirms the figures given by the complainants on the percentages of employees facing prohibitions or restrictions, or on the contrary who have free access to part-time work. It points out however that the restrictions are so stringent as to exclude in practice the possibility to work part time: this means that only about 35 per cent of collective agreements allow free access to part-time work.
26. 573. The Government acknowledges that there is no statutory right to part-time work, as this was indeed not the intention of the Act, and stresses the voluntary nature of the agreement. For instance, if an employee leaves the job, it cannot be filled automatically by another part-time employee if this is contrary to the provisions of the collective agreement. On the related argument that employees are deprived of the right to return to full-time work after a period of part-time work, the Government reiterates the voluntary nature of the agreement, which means that the employee may stipulate that the agreement is conditional to his right to resume full-time duties at a later date.
27. 574. Regarding the complainants’ arguments about existing provisions for gradual retirement of senior workers, the Government replies that these provisions are not always implemented in individual enterprises as they are operative only if local agreements to this effect have been concluded. Furthermore, it is often a condition of application of these rules that the senior workers in question have a reduced working capacity.
28. 575. As regards the complainants’ argument that the Act has the effect of cancelling the right of access to full-time work, the Government states that one of the amendments introduced during the parliamentary process was that agreements on part-time work made in spite of restrictions contained in collective agreements can only be concluded during the employment relationship. This means that employers may not advertise part-time jobs in cases where the collective agreement does not allow free access to such work, and that they must comply with any restrictions laid down in collective agreements. If that were not so, an employer could unilaterally decide that the job in question should be part time and the prospective employee would have no choice.
29. 576. On the complainants’ argument that the Act removes all guarantees for those employees already working part time, including their right not to be forced to work fewer hours, the Government states that nobody can be forced to work part time and the individual employee can refuse to work fewer hours. The Government also refers in this connection to its above remarks on the employees’ right to be accompanied by an adviser during the negotiations with the employer about part-time work.
30. 577. The Government further states that there were consultations with interested parties before the Bill was tabled, which led to amendments on the basis of, inter alia, supplementary discussions with LO. During the discussion of the Bill in Parliament, negotiations also took place with LO about a provision of the Act which would provide that it should be set aside in the case of collective agreements containing similar rights as those laid down in the Act. After a number of negotiation rounds, LO chose not to accept such a compromise and the Act was adopted without such a provision.
31. 578. The Government concludes that:
32. – the Act is not retroactive and does not interfere with already existing collective agreements;
33. – the social partners may choose to ensure that the collective agreements are in accordance with the Act, for instance by including a clause providing that despite the restrictions mentioned in the agreement “the individual employee, during the employment relationship, may always conclude an agreement about part-time work”;
34. – the Act is within the framework of the conditions that the legislature may lay down for the right to collective bargaining, as in the case of equal pay or prohibition against discrimination;
35. – the Government and a majority in the Parliament found that it was important to ensure that individual employees could conclude an agreement on part-time work, in a labour market characterized by an increased need for flexibility;
36. – it listened to concerns about possible abuses and brought amendments to the Bill in this respect; while there were sincere efforts to find a solution based on collective bargaining, there was no support for such a solution in LO and the Government had no other solution than adopting a legislation, in view of the importance it attached to this matter.

C. The Committee’s conclusions

1. 579. The Committee notes that this complaint concerns the adoption of a legislative amendment that alters the regime concerning part-time work in Denmark which, previously, was mostly left to collective bargaining.
2. 580. The complainants allege that the law as amended will invalidate large parts of previously concluded collective agreements containing conditions, restrictions or prohibitions in this respect, and will prevent the parties in future from freely negotiating clauses on part-time work.
3. 581. The Government submits for its part that such prohibitions and restrictions are not in harmony with a modern and flexible labour market, that there has been a general trend towards more freedom in this respect at national level and that there still remained excessive restrictions on part-time work on the national labour market. The Government wanted to ensure that individual employees, in future, could conclude part-time work agreements with employers without being prevented from doing so by collective agreement provisions which it considers as overly rigid; as trade union organizations did not agree, the Government felt it necessary to act through legislation.
4. 582. The Committee first notes that, contrary to what had been alleged initially, it appears from the evidence submitted that the Act does not operate retroactively, but only from the expiry date of collective agreements. The Committee is however bound to note that, as collective agreements containing such restrictions or prohibitions will come to their term with the expiry of time, these conditions regarding part-time work that were previously negotiated (which implies the usual give-and-take process) will gradually escape the scope of collective bargaining inasmuch as they would be in contradiction with the Act as amended. There is thus no doubt that the legislative amendment circumscribes the ambit of collective bargaining on a subject matter where the parties previously had wider room for negotiation, if not complete freedom. It is also quite clear that, as individual agreements on part-time work will now prevail over collective ones, the new system does not encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements [see Digest of decisions and principles of the Freedom of Association Committee, 1996, 4th edition, para. 781].
5. 583. The Committee further notes that this restriction of the scope of bargaining was not only opposed by the major workers’ central organizations, but also was not approved by leading employers’ organizations which, in their open letter of 1 February 2002, urged the Parliament to respect the division between agreements and legislation and stressed that particular working conditions are best regulated by agreement between social partners than by legislation. They also urged the Parliament, if it nevertheless wanted to legislate on collective agreement matters, that this should take place only after thorough consultations and in close harmony with the parties.
6. 584. In the Committee’s opinion, if the Government deemed it necessary to change a system which apparently met with a wide consensus of both workers’ and employers’ organizations, it would have been much more preferable to obtain their agreement. A legislatively imposed measure such as the amendment challenged here, which amounts to reversing unilaterally a system accepted by social partners and which has led to negotiated agreements adapted to particular sectors (the specific conditions of which are best appreciated by the parties themselves) or to individual situations (e.g. in the case of workers nearing retirement) would have been justified only in a situation of acute crisis, for instance if the failure to adopt urgent legislative measures on part-time work had endangered the workability of the existing system. It has not been established, or even alleged, that such an emergency situation existed.
7. 585. Given the particular circumstances of this case, and in order to ensure a sound and lasting labour relations atmosphere, the Committee requests the Government to resume thorough consultations on part-time work issues with all parties concerned, with a view to finding a negotiated solution which would be mutually acceptable to all parties concerned and in conformity with Conventions on freedom of association and collective bargaining ratified by Denmark. It requests the Government to keep it informed of developments in this respect.

The Committee's recommendations

1. 586. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • In the particular circumstances of this case, the Committee requests the Government to resume thorough consultations on part-time work issues with all parties concerned, with a view to finding a negotiated solution which would be mutually acceptable to all parties concerned and in conformity with Conventions on freedom of association and collective bargaining ratified by Denmark. The Committee requests the Government to keep it informed of developments in this respect.