Definitive Report - Report No 292, March 1994

Case No 1725 (Denmark) - Complaint date: 12-JUL-93 - Closed

1. 197. In a communication dated 12 July 1993, the Danish Union of Journalists (DJ) submitted a complaint of violation of freedom of association against the Government of Denmark.
2. 198. The Government sent its observations on this case in a communication dated 28 October 1993.
3. 199. Denmark has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 200. In its communication of 12 July 1993, the Danish Union of Journalists (DJ) alleges that the Draft Settlement drawn up by the Public Conciliator for the dispute which arose during negotiations on the renewal of collective agreements between it and the Danish Newspaper Employers' Association (DDFF) violates its trade union rights and its right to negotiate collectively.
2. 201. The DJ explains that the Public Conciliator is the head of the Conciliation Board, which is a government institution charged with the task of contributing to the settlement of disputes between employers and employees in accordance with the provisions of the Conciliation in Industrial Disputes Act, No. 5, of 18 January 1934, as amended by Act No. 63 of 25 March 1961 and Act No. 520 of 23 December 1970. The three national Conciliators are appointed by the Minister of Labour, upon the recommendation of the Industrial Court. The law provides for various procedures which allow the Public Conciliator to attempt to mediate between the parties.
3. 202. The complainant organization states that in December 1992 it entered into negotiations with the Danish Newspaper Employers' Association (DDFF) with a view to renewing the collective agreements which came into effect on 1 March 1991 and were to expire on 28 February 1993. These agreements cover 1,879 journalists, including some journalist trainees and photographers, employed by several newspapers, press agencies and radio stations. During these negotiations, the DJ gave the highest priority to introducing a system of sabbatical leave of six weeks with full pay. The organization states that this claim was prompted by a desire to assist the 9 per cent of its members who were unemployed and by consideration for the social welfare of employed members. On 8 February 1993, after seven rounds of negotiation, the case was handed over to the Public Conciliator. On 14 March 1993, after three more rounds of negotiation, the Public Conciliator found that it served no purpose to continue the mediation between the DJ and the DDFF.
4. 203. The complainant organization points out that on 24 March 1993 the Public Conciliator held a meeting with the Danish Employers' Federation (DA), of which the DDFF is a member, and the Danish Federation of Trade Unions (LO), of which the DJ is not a member. At this meeting it was decided - without consulting the DJ - that the Draft Settlement for collective agreements between the DA and the LO should also cover collective agreements for which the parties themselves could not agree to a renewal, including agreements involving organizations not affiliated with the LO. This concerned, among others, the collective agreements for journalists.
5. 204. On 26 March 1993 the Public Conciliator invited the DJ and the DDFF to meet for a technical consultation on the Draft Settlement. The complainant organization points out that this consultation concerned only economic questions and did not cover employment-creation measures, such as the introduction of a sabbatical leave system. The Public Conciliator maintained the position that the DJ should be covered by the Draft Settlement accepted by the DA and the LO.
6. 205. The complainant organization states that it objected to this procedure and that in its opinion the negotiations with the DDFF should continue in order to find a solution regarding the subject of sabbatical leave. It referred to the provisions of the collective agreements between it and the DDFF and which are intended to settle disputes. These provisions stipulate that when negotiations concerning the renewal of a collective agreement have not been concluded by the time the collective agreement expires, the collective agreement will remain in effect until the conclusion of a new agreement or until one of the parties has initiated a stoppage of work (strike, blockade or lockout) on behalf of its members. These provisions also stipulate that the DDFF may not give notice of a lockout or boycott before 15 April 1993 unless the DJ itself has given notice of collective actions against one or more members of the Danish Employers' Federation. The complainant organization notes that it did not give notice of a strike.
7. 206. This notwithstanding, according to the complainant organization the Public Conciliator on 27 March 1993 made public a Draft Settlement covering approximately 700,000 workers organized under agreements between the DA and the LO. The draft renews inter alia collective agreements concluded between the DDFF, as a member organization of the DA, and the DJ; the agreements apply to nearly 1,900 employees in the field of journalism.
8. 207. This draft includes several Draft Settlements covering occupational fields which vary widely in nature. As a result, the 1,900 votes of the DJ were counted together with approximately 700,000 votes of workers organized in the LO, and the Public Conciliator only took into consideration the overall outcome. The draft was adopted with 67.4 per cent approving, and 35.4 per cent of those eligible voted. The DJ points out that its members rejected the draft, with 88.9 per cent voting against, and 71.6 per cent of those eligible voting. If the outcome of the vote by members of the DJ had been considered separately, the draft would not have been adopted, as 63.4 per cent of those entitled to vote actually voted against it, and the law stipulates that a simple majority of voters, representing at least 35 per cent of all eligible union members, is sufficient to reject the agreement. According to the complainant organization, the Public Conciliator stated that "this is a good example of what the linking clause is for. It is there to ensure that a small group in a workplace - there are only 2,000 journalists - shall not be able to obstruct what others accept ...".
9. 208. The complainant organization believes that the Public Conciliator acted in violation of Conventions Nos. 87 and 98. First, there was no reason for him to submit a Draft Settlement for collective agreements between the DDFF and the DJ. There was also no reason to decide, with the agreement of the DA and the LO, that a Draft Settlement covering these two federations should cover collective agreements concluded by the journalists. The DJ was thus in effect deprived of the possibility to negotiate freely the renewal of collective agreements to which it was a party and, as a last resort, to initiate a strike with a view to obtaining a new collective agreement. It was also impossible for it to defend its claim to sabbatical leave as an employment-creation measure, since such a claim was neither proposed nor negotiated for the majority of Danish workers, who are organized under agreements between the DA and the LO.
10. 209. According to the DJ, the Public Conciliator intervened in the collective bargaining which was taking place between it and the DDFF at a time when it was quite unnecessary to do so since collective agreements which are in effect remain in force until the conclusion of a new agreement or until a strike or lockout begins. Its intervention was all the more unnecessary since the DJ had not called a strike, and there was a very small risk of sympathy strikes because the main dispute concerned a trade union - the DJ - which is not affiliated with a trade union confederation.
11. 210. Finally, the DJ indicates that section 12 of the Conciliation in Industrial Disputes Act, which provides for the possibility to link together in a single Draft Settlement the Draft Settlements of all occupational fields (with the exception of work managers), must be considered together with section 11, which reads as follows: "Within each federation (trade union or trade union branch) the decision as to the acceptance or rejection of a Draft Settlement shall be taken either by a ballot or by an ad hoc meeting. For a Draft Settlement to be rejected by ballot on the workers' side the majority of those participating in the ballot and in no case less than 35 per cent of all members entitled to vote must have voted against it."

B. The Government's reply

1. 211. The Government states that on 27 March 1993 the Public Conciliator submitted a Draft Settlement for the renewal of collective agreements in most of the private sector, and namely in occupational fields represented by the Danish Employers' Federation (DA) and the Danish Federation of Trade Unions (LO). The draft also provided for the renewal of collective agreements concluded between the DDFF and the DJ.
2. 212. The Government explains that Danish trade unions have traditionally been established as national federations along occupational lines. These national federations are divided into local trade unions. At the enterprise level, workers are organized into various trade unions according to the nature of their work. Danish trade unions are therefore not industrial trade unions. Furthermore, the Danish labour market is characterized by a very high organization rate and there is a large number of collective agreements between the individual national trade union federations on the one hand, and their employer counterparts on the other. There are over 600 collective agreements in the fields covered by the DA and the LO.
3. 213. According to the Government, over 90 per cent of all Danish workers are reportedly covered by a collective agreement or an adhesion agreement (an agreement between a trade union federation and an unorganized employer, which refers to the collective agreement normally applying within the occupational field concerned). Most collective agreements are valid for two years and must be renewed on 1 March or 1 April of odd-numbered years. Since negotiations for the renewal of collective agreements take place at the same time throughout the labour market, the social partners aim to obtain a uniform negotiation process. Before the collective agreements expire, the social partners begin negotiations on their renewal by exchanging their claims. If the negotiations are not concluded before the collective agreement expires, the agreement generally continues to be applicable until a new collective agreement has been concluded or until one of the parties withdraws from the negotiations by directly initiating industrial action. In the case of journalists, who have special rules for industrial action, it was agreed that the DJ had an exclusive right to take industrial action with effect until 15 April 1993.
4. 214. As regards the Public Conciliator, the Government explains that it is the task of the Public Conciliator to assist the social partners in renewing collective agreements and settling industrial disputes. The powers of the Public Conciliator are laid down in the Conciliation in Industrial Disputes Act, and the Government has no influence on the action taken by the Public Conciliator. The Public Conciliator is in no way obliged to take into consideration the implications of his decisions for the country's economy when attempting to draw up a Draft Settlement acceptable to all the parties concerned. The sole objective is to find a compromise. The Public Conciliator has certain powers in this respect: he may decide that the negotiations should continue between the parties, under his supervision; he may at his own initiative decide to play a conciliatory role during the negotiations; he may decide that industrial action duly announced during the conciliation should be postponed for 14 days; if he finds it appropriate, he may submit a Draft Settlement after consulting the representatives of the parties as regards the formal and technical aspects of the draft, which is subsequently voted upon by both sides; and he may direct that a number of Draft Settlements are to constitute, in whole or in part, a single draft.
5. 215. As regards the negotiations for the renewal of collective agreements concluded between the DDFF and the DJ, the Government mentions that these negotiations began in the autumn of 1992 and that on 15 December the parties reached an agreement which stipulated, inter alia, that in the event that the negotiations were not concluded by 2 February 1993 at the latest, they would continue with the assistance of a Public Conciliator. The parties later changed this deadline to 8 February.
6. 216. As regards the sabbatical leave scheme which the complainant organization was unable to negotiate, the Government indicates that the DDFF stated that at no point did it accept the calculations on which the claim of the DJ were based and that, during the negotiations, the DJ had another claim which had been given the same priority.
7. 217. According to the Government, the DDFF indicated that after about 20 rounds of negotiations the DJ took the initiative to call in the Public Conciliator, who was appointed on 17 February. When the Public Conciliator decided to abandon his efforts at conciliation, the DJ reportedly asked the Public Conciliator on 1 March 1993 to take over the conduct of the negotiations personally. After three more rounds of negotiation, the Public Conciliator stated on 14 March 1993 that he saw no purpose in continuing the conciliation attempts, and decided on 24 March 1993 to include in the overall Draft Settlement which he intended to propose his Draft Settlement for collective agreements for journalists. On 26 March 1993 the DDFF and the DJ participated in a technical examination of the draft, which was made public the following day.
8. 218. The Government also indicates that, according to the DDFF, although the DJ did not give formal notice of industrial action, it failed to state that industrial action was taken without notice at a number of newspapers and press agencies and in violation of the collective agreements, in order to protest against the course of the collective negotiations. Moreover, the DJ reportedly brandished the threat of a strike as a means of bringing pressure to bear on the newspaper publishers. Such a strike could have paralysed approximately 70 per cent of the Danish press.
9. 219. The Government denies the allegations that Conventions Nos. 87 and 98 were violated by the Public Conciliator's decision to propose an overall Draft Settlement. It mentions that according to the information at its disposal negotiations on the renewal of collective agreements covering journalists did take place, first between the parties themselves, and later - in accordance with the agreed-upon negotiating procedures - within the framework of the public conciliation service, with the assistance of a Public Conciliator and, finally, with the Public Conciliator.
10. 220. Taking into account the nature of the Danish trade union movement as described above (with several trade unions represented at each workplace for each occupational field) the Government considers that a strike by a small group - the journalists - would paralyse nearly all the country's media. Other workers in this field, for whom collective agreements would have been concluded, would thus have been involved in the dispute. Furthermore, the Public Conciliator's power to link various Draft Settlements should be seen in the context of the special conditions governing Danish collective agreements, nearly all of which expire and are renegotiated at the same time every second year. Both this system and the Conciliation Act reflect the way Danish employers and workers would like this question to be handled. This ensures solidarity in situations where a majority of the workers concerned approve the Draft Settlement, and avoids involving workers in disputes which concern only a small minority. As this case shows, the system does not mean that the parties are excluded from negotiations. Furthermore, each party is entitled to vote to accept or reject the draft.
11. 221. The Government concludes that, in its view, the power of the Public Conciliator to link various Draft Settlements (for which the votes are taken as a whole) is not contrary to the ILO Conventions. It states that it would be deeply concerned if this rule had to be abolished, unless such a change was generally desired by the Danish social partners.

C. The Committee's conclusions

1. 222. The Committee notes that the allegations in this case involve a decision taken by the national Conciliator to include the Draft Settlement for the renewal of collective agreements between the complainant organization, the Danish Union of Journalists (DJ), and the Danish Newspaper Employers' Association (DDFF), in a single draft (by means of the "linking clause" of section 12 of the Conciliation in Industrial Disputes Act) together with the Draft Settlement for the renewal of collective agreements concluded between the Danish Federation of Trade Unions (LO) and the Danish Employers' Federation (DA). According to the DJ, this decision violated its rights to collective negotiation.
2. 223. The Committee notes that the facts of this case are not in dispute. In December 1992 the DJ and the DDFF began negotiating to renew the collective agreements that were to expire on 28 February 1993. Following a series of unsuccessful negotiations, the parties decided to call upon a Public Conciliator. The Public Conciliator decided, after a few more rounds of negotiations, that there was no purpose in continuing the mediation between the two parties. The national Conciliator then presented, on 27 March 1993, a single Draft Settlement for the renewal of collective agreements that were then in effect in most of the private sector, and namely in the occupational fields covered by agreements between the LO and the DA. This Draft Settlement included the renewal of the collective agreements concluded between the DJ and the DDFF.
3. 224. The Committee recalls that it has already had the opportunity to express an opinion concerning the powers given to the national Conciliator by the Conciliation in Industrial Disputes Act (see 254th Report, Case No. 1418, paras. 222 to 227). The Committee must determine whether the legislation which allows the Conciliator to link various Draft Settlements in a single draft violate the right of the DJ to voluntary negotiation.
4. 225. The Committee observes firstly that this decision was taken on 27 March 1993, while the collective agreements to which the DJ was a party were still in effect, since the complainant organization had not begun a strike.
5. 226. The Committee also notes that, following the intervention of the Public Conciliator, the DJ was deprived of the possibility to continue to negotiate on certain subjects which were of the highest priority to it. While the Act provides that the Public Conciliator must discuss the form and substance of the draft with representatives of each of the parties (section 4.3), the DJ was only invited to a meeting on 26 March 1993 to examine the technical aspects of the draft.
6. 227. Finally, the Committee observes that the Conciliation in Industrial Disputes Act includes a number of protective clauses, in so far as an overall Draft Settlement must be submitted to a vote and adopted by the members of the parties concerned. The complainant organization indicates that its members rejected the overall draft by 88.9 per cent, while 67.4 per cent of the workers concerned by the overall draft voted for its adoption. The Committee would therefore recall, as it has in previous cases, that the extension of an agreement to an entire sector of activity - in this case, journalism - contrary to the views of the organization representing most of the workers in a category covered by the extended agreement is liable to limit the right of free collective bargaining of that majority organization and that this system makes it possible to extend agreements containing provisions which might result in a worsening of conditions of work of the category of workers concerned. (See, for example, 217th Report, Case No. 1087 (Portugal), para. 233, 250th Report, Case No. 1364 (France), para. 136, and 254th Report, Case No. 1418 (Denmark), para. 225.)
7. 228. Taking account all of the aforementioned, the Committee considers that certain aspects of the Danish legislation and national practice are not completely in conformity with the principle of free bargaining of collective agreements with a view to regulating the terms and conditions of employment by means of collective agreements, as recognized in Article 4 of Convention No. 98. It invites the Government and the social partners to re-examine the legislation and practice in this regard.

The Committee's recommendations

1. 229. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee considers that certain aspects of the Danish legislation and national practice are not completely in conformity with the principle of free bargaining of collective agreements with a view to regulating the terms and conditions of employment by means of collective agreements, as recognized in Article 4 of Convention No. 98. It invites the Government and the social partners to re-examine the legislation and practice in this regard.
   • (b) The Committee draws this case to the attention of the Committee of Experts on the Application of Conventions of Recommendations.