Informe definitivo - Informe núm. 349, Marzo 2008

Caso núm. 2545 (Noruega) - Fecha de presentación de la queja:: 06-FEB-07 - Cerrado

Allegations: The complainant organization alleges that the Government unduly interfered in collective bargaining through the imposition of compulsory arbitration to end a legal strike held by employees in the financial sector

1. 1111. The complaint is contained in a communication dated 6 February 2007 from the Finance Sector Union of Norway (FSUN).
2. 1112. The Government forwarded its observations in a communication dated 5 May 2007.
3. 1113. Norway has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 1114. By its communication dated 6 February 2007, the FSUN alleges that the Government unduly interfered in collective bargaining by Act No. 19 of 16 June 2006, which referred the dispute between the FSUN and the Norwegian Employers’ Association for the Financial Sector (FA) for settlement by the National Wages Board. The above legislation put an end to a legal strike held in connection with the revision of the general agreement. The complainant also alleges undue interference in the dispute by the Minister of Labour and Social Inclusion on 9 June 2006.
2. 1115. The complainant recalls that in recent years, the Norwegian Government has used essentially similar legislative intervention in the collective bargaining process on a number of occasions and refers in this respect to Cases Nos 1099, 1255, 1389, 1448, 1576, 1680, 1763 and 2484. The FSUN asserts that the circumstances described in, and the issues raised by, the present case are similar to those that the Committee has dealt with previously with regard to Norway. It further explains that under Norwegian labour law, the use of compulsory arbitration and prohibition of strike action has to be approved by a special Act of Parliament. It is for Parliament to decide whether the dispute in question should be solved by compulsory arbitration. However, there is no law specifying the circumstances in which compulsory arbitration can be imposed.
3. 1116. The complainant explains that collective bargaining between the FSUN and the FA with a view to revise the general agreement, including wages, working conditions and pension schemes began on 20 April 2006. In particular, the Finance Sector Union of Norway tabled the demand to establish a collective bargaining system if changes in existing pension schemes should be made. Most employees in the financial sector have a contribution-based occupational pension scheme, which is not currently covered by the collective agreement. During the last years companies have reorganized their collective pension scheme. This has been done without involving the shop stewards in a satisfied way. For that reason, the Finance Sector Union of Norway claimed that there should be made a system for the process when companies consider making changes to their existing pensions schemes, which gives the shop stewards codetermination. However, the employers rejected the union’s demand that the workers’ representatives be included in the negotiations for an agreement-based occupational pension scheme. They argued that it would undermine the employers’ managerial prerogatives as well as their ability to run companies properly. They further argued that the content of occupational pension schemes normally does not form part of the bargaining rights of a trade union.
4. 1117. Following mediation, in which the two parties failed to reach an agreement, the negotiations reached a state of deadlock on 3 May 2006. On 5 May 2006, the FSUN served a strike notice on the employers on behalf of its 6,020 members (all employed in the insurance sector). The decision that a small number of trade union members and only from one sector would participate in the strike was made by the union to demonstrate that the strike targeted only the employers and as to limit the inconveniences of the strike on the general public. On 12 May 2006, the FSUN warned that 1,573 employees in the banking sector (6 per cent of the FSUN’s active members) would join the strike on 12 June 2006, which would have brought the total amount of strikers to 7,593 members or 29 per cent of the active members of the FSUN. The employers responded the same day by issuing notice of a full lockout of all banks and insurance companies, members of the FA, thereby stopping most of the bank and insurance services from 12 June 2006. In an attempt to call off the planned strike in the insurance sector, further mediation with the National State Mediator was carried out on 30 and 31 May 2006, however, to no avail.
5. 1118. On 1 June 2006, 6,020 FSUN members from the insurance sector went on strike. On 7 June 2006, the National State Mediator called the parties twice for meetings, in order to try to lift the deadlock. On 9 June 2006, the Minister of Labour and Social Inclusion, called representatives of the two parties for a meeting to plead the parties to solve the dispute before the escalation of the strike and the lockout by the employers on 12 June 2006 and ordered the parties to report back. The parties met the next day, on 10 June 2006, but did not reach an agreement. The complainant considers that the actions of the Minister constituted an act of interference and pressure, affected the exercise of the right to strike in practice and violated the rights and guarantees provided for by Article 3 of Convention No. 87 and Article 2 of Convention No. 98.
6. 1119. On 11 June 2006, the Government informed the organizations about its intention to intervene in the conflict by means of compulsory arbitration. It based its decision on reports from the Financial Supervisory Authority of Norway, the Central Bank of Norway (hereafter, the Bank) and social insurance authorities. The Government then put forward a legislative proposal to Parliament, which, on 16 June 2006, adopted an Act on Compulsory Arbitration. The Act referred the dispute to compulsory arbitration before the National Wages Board and put a ban on strikes to solve the conflict. The decision of the National Wages Board was made on 16 August 2006.
7. 1120. In the complainant’s opinion, the legislation of 16 June 2006 on compulsory arbitration, specifically, and the entire system of compulsory arbitration, in general, as applied by the Government, contravenes the guarantees provided for by Conventions Nos 87 and 98. The warned employee lockout and thus the rapid intervention of the Government with compulsory arbitration restricted the right to strike and the right to bargain collectively.
8. 1121. According to the complainant, the Government’s legislative proposal did not discuss whether the banking sector was an essential service, but addressed the possible consequences of escalation of the conflict on the Norwegian securities and its financial market, and the society in general. The main arguments used by the Government to introduce the legislation on compulsory arbitration were based on reports from the Financial Supervisory Authority of Norway and the Bank. The reports, however, contained an assessment of the consequences of the strike and lockout in the banking sector only, and did not discuss the insurance sector. In a press release dated 11 June 2006, the Government claimed that the decisive factor for the compulsory arbitration was that an escalation of the conflict would quickly lead to comprehensive and grave societal problems. The Government further stated that the conflict would paralyse so many key functions of the society that its intervention would be necessary before the warned chaos would occur.
9. 1122. According to the Bank, the strike and lockout would affect most of the banks in Norway in one way or the other. The Bank considered that in a situation of a full lockout, it would be necessary to resort to implementation of the “closing-down-doctrine”, meaning that all infrastructures of the common services of all banks would cease to function. In practice, the “closing-down-doctrine” would imply that even the banks that were not a part of the strike and the lockout would be prevented from providing payment services and executing transactions, as the common services of the BBS (an IT-based knowledge company owned by Norwegian banks to handle credit card payment, Internet banking and wire transactions) would not function. It would therefore not be possible for the public to use any kind of banking transaction services, salaries would not be deposited to employees’ accounts, applications for loans would not be considered, approved loans would not be deposited to accounts, enterprises would not be able to execute payments. The Bank’s assessment goes on to assess how the inconveniences could be minimized, for example, through agreements on advance payments. Credit cards could be used as payment for services and goods through a non-electronic system. Payments in cash could be made, assuming that the public has a sufficient reserve of cash to last through a possible duration of the strike/lockout. Although a few banks could remain open, because of the non-functioning of the common banking services of the BBS, they would have limited possibilities to provide payment services. While most households would be able to prepare for a strike by accumulating cash, some would not be in a position to withdraw large amounts of cash before the planned strike, as the monthly payment of social security and pensions would be received on 12 June 2006, the day of the strike and lockout. For people dependent on social service benefits, the situation could prove to be serious, as they could be prevented from buying basic commodities such as food or medicine.
10. 1123. According to the Financial Supervisory Authority, financial institutions would be able to sustain a certain activity if the key employees were on duty and the strike did not last for a long time. However, a longer industrial action might lead to grave and long-term consequences for the international reputation of the Norwegian financial institutions.
11. 1124. The Government’s legislative proposal discussed the relevant ILO Conventions, but concluded that compulsory arbitration would not be in breach of any of the Conventions as the escalation of the conflict would lead to a full interruption of financial services and activity, which, in turn, would lead to grave consequences for the society. The Government furthermore considered that there was a need to interfere in the conflict by imposing compulsory arbitration, even if that would prove to be in breach of Norway’s international commitments.
12. 1125. The complainant considers that the Government intervention was untimely as it interfered in a conflict in one sector that was not allowed to escalate into another sector. Moreover, it was not warranted as the financial sector is not an essential service in the strict sense of the term. In fact, the Government failed to demonstrate how the interruption of these services would involve a clear and imminent threat to the life, personal safety or health of the whole or part of the population. Possible actions that the Government could have initiated to reduce the possible effects of the strike were neither assessed nor discussed. In this respect, the complainant indicates that the master agreement between the FSUN and the FA contains a clause on work during an industrial dispute (minimum services) (see annex). This allows both for a system of minimum services as well as a system of granting dispensations in the course of a conflict to alleviate the immediate dangers. A list containing the names and positions of those selected shall be prepared in good time before the voluntary bargaining is to be conducted. Dispensations can further be granted during the conflict. Both of these activities were undertaken. During the strike in the insurance sector, some services were in fact provided, for example, at the Maritime Insurance Company Guard, where many dispensations were given. However, recourse to such services was overruled by the planned utilization of the “closing-down-doctrine” by the Finance employers. Moreover, the warned lockout disqualified the earlier agreements between the parties. Thus, the FSUN questions the compelling need to have recourse to compulsory arbitration in the dispute in question, as the agreed minimum services had not been allowed to be implemented.
13. 1126. The complainant argues that the strike did not concern an essential service, nor did it pose an imminent threat to the life, personal safety or health of whole or part of the population. While one of the effects of the escalation of the conflict would have led to banking facilities being closed down, all banking transactions stopped, thus implying that payments in cash would be necessary for all purchases, steps could be taken to mitigate this inconvenience. As both the Government and the public were warned well in advance that banks could be closed, most would have been able to use cash. It would furthermore be possible to use credit cards to pay for the basic commodities. For those dependent on social service benefits and pension, the Government could have considered alternative dates or means of payment. The Government’s assessment of the situation was based on hypothetical risks and possible results. In addition, the advance notice given on the strike and the lockout could have enabled the Government to ensure advance payment on social security benefits such as to resolve any immediate problems for vulnerable groups. If the Government had demonstrated a more critical thinking to the “closing-down-doctrine”, the industrial action might have been continued, possibly allowing for other mechanisms or solutions to evolve through negotiations by the conflicting parties.
14. 1127. Finally, the complainant alleges that the leader of the executive committee of the FA had stated that the lockout was declared in order to provoke the Government to resort to compulsory arbitration. According to the complainant, this tactic proved right: the use of the “closing-down-doctrine” and the subsequent compulsory arbitration was thus a way of undermining the possibility of genuine negotiations between the parties.

B. The Government’s reply

1. 1128. In its communication dated 5 May 2007, the Government expresses its understanding that while the right to industrial action is not expressly provided for by the Articles of Conventions Nos 87 and 98, the right to strike is considered to be one of the principles of freedom of association. The Government further understands that, according to the ILO supervisory bodies, the consequences of a labour dispute could become so serious that restrictions on the right to strike could become compatible with the principles of freedom of association. When a strike involves public servants engaged in the administration of the State or 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, restrictions or prohibitions of strikes are considered acceptable by the ILO supervisory bodies. The Government declares to be aware of the principle according to which the banking sector is not an essential service. However, the cases in relation to which these principles were applied are rather old. Since then, there has been a radical technological development towards a growing dependency on electronic means of payment. Norway is among the most “modern” countries approaching “the money-less society”.
2. 1129. The Government stresses that Norway makes great efforts to comply with ILO Conventions. Interference in a labour dispute is made only when life and health or important public interests are endangered. The Government considers that its interference to impose compulsory arbitration by an Act of 16 June 2006, as well as the meeting of 9 June 2006 called by the Minister of Labour and Social Inclusion, do not violate Conventions Nos 87 and 98.
3. 1130. The Government indicates that the dispute arose in connection with the 2006 revision of the general agreement between the FSUN and the FA. After the negotiations broke down on 3 May, the FSUN gave a warning of a collective work stoppage for 6,020 members within insurance companies covered by the general agreement with effect from 1 June. On 5 May, the State Mediator prohibited the stoppage of work until mediation had been tried. On 12 May, the FSUN announced an escalation of the conflict by giving a warning of a collective work stoppage for another 1,573 members, working in 76 banks within one group of banks (Terra group), with effect from 12 June. The FA responded the same day by giving a warning of a lockout of all remaining 15,000 members of the FSUN covered by the collective agreement, also with effect from 12 June. Thus, the lockout was provoked by the announcement by the union of the escalation of the strike. As only one group of banks would be affected by the strike, the employers saw that as a distortion of competition. On 18 May, the Norwegian Union of Commercial and Office Employees as well as the Postal and Communication Union announced sympathy strike action for 1,657 members within the finance sector with effect from 12 June 2006.
4. 1131. All attempts to resolve the conflict through mediation (on 1, 6 and 7 June 2006) bore no results. The Minister of Labour and Social Inclusion then summoned the parties to a meeting on 9 June. He referred to the extensive consequences of the escalation of the conflict and underlined the responsibility of the parties. He strongly urged them to come to an agreement as soon as possible. The Minister explicitly stated that he had summoned the parties because the employers’ organization had openly speculated through the media that the Government would intervene to impose compulsory arbitration. The Minister saw this as an attempt by this party to renounce its own responsibility to find a solution to the dispute and shift the responsibility on to the Government. After the parties had notified the Minister that they had not found a mutually acceptable solution, the Minister summoned the parties to a new meeting on 11 June. He informed them that in light of the imminent escalation of the conflict in the financial sector, which would cause a full stoppage in all payment systems, entailing serious social problems, chaos and concern, the Government would put forward a Bill to Parliament proposing to solve the dispute through compulsory arbitration. The Minister requested the parties to prevent an escalation of the conflict and resume work, which the parties confirmed that they would. The Government fails to see how the actions of the Minister could be considered as an intervention in the dispute and, as such, a breach of Article 3 of Convention No. 87 and Article 2 of Convention No. 98.
5. 1132. The Bill was submitted to Parliament on 12 June and adopted on 16 June. The National Wages Board then handled the case. The Government indicates that the Board is an independent body consisting of nine members (three neutral, two from the largest workers’ and employers’ organizations and two from each of the conflicting parties). Five of the members have the right to vote (three neutral members and one from each of the conflicting parties), while the remaining four attend in their advisory capacity. The Board’s decision, which has the effect of a collective agreement between the parties, was made on 17 August 2006.
6. 1133. From 1 June, the conflict included all members of the FSUN employed in insurance companies (about 65 per cent of the workers of the insurance companies). The strike had resulted in a strongly reduced capacity within the insurance sector, causing a wide range of problems and inconveniences for customers. However, the announced extension of the conflict as from 12 June caused even deeper concern. All members of the FSUN would then be either on strike or locked out, and the conflict would have expanded to all but 11 banks of Norway. However, even those 11 banks would also be strongly affected by the conflict, as all joint operations within payment service systems and settlements would be closed down due to safety reasons.
7. 1134. The Government received assessments from the Bank and the Financial Supervisory Authority of Norway, which informed that the conflict would have such an extent that a “closing-down-doctrine” would have to be implemented, putting the banks’ joint infrastructure out of function. It was further explained that computer technology did not allow a large number of transactions to be put on hold if the receiving bank’s operational systems were not in function. Therefore, rather than risking the systems collapsing, it was most secure to perform a controlled close down of the payment and settlement systems. The Bank furthermore described how the dependency on modern payment services has increased over the last years. While paper money and coins were used in 16 per cent of the transactions made in 1996, this share was halved by the end of 2005. In the same period, cashless transactions increased by 137 per cent. The use of cheques almost disappeared in the same period and went from 3.4 per cent in 1996 to 0.007 per cent in 2005. During the conflict, it would not have been possible for the public to carry out payments through the banks, as the banks would be closed, and the payment terminals, telebanks, Internet banking and ATMs would not be available. Paper-based wire transfers would not be handled. Credit cards could be used in some places, provided that paper-based, nonelectronic solutions were at hand. However, most grocery shops no longer have them. The Bank further stated that neither wages nor national insurance benefits would be available at the receivers’ accounts. The public could still use cash for payment of goods and services but, as ATMs and bank premises would be closed, people would have to depend on the cash they had at their disposal before the strike. Furthermore, as the banks’ night safes would be closed, there would be an accumulation of cash in trade. The Bank stated that while many households could prepare for this situation by accumulating cash, this was not an option for all. Many people were not in an economic position to build up cash reserves beforehand. Many depended on immediate access to wages or benefits. For these people, the situation could become serious if they could not buy food, medicines, etc. In the opinion of the Bank, the absence of banking services would rapidly have serious consequences on the society.
8. 1135. For persons dependent on unemployment benefits, old-age pensions or social service benefits the situation would immediately become difficult. According to the social insurance authorities, 11.7 million Norwegian kroner (NOK) in unemployment compensation and NOK86 million in social benefits, including pensions, were due for payment on 12 June. The following day, another NOK144 million in unemployment compensation and NOK154 million in social benefits, including pensions, were due for payment. Considerable amounts were also due for payment the rest of the week. A request for an advanced payment of pensions was submitted to the banks. However, in case of the announced lockout, the money would still be inaccessible to the receiver as daily payments are based on approved decisions made consecutively. Unemployment benefits are paid out in arrears every fortnight based on submitted reports from the unemployed. Consequently, it was not possible to counter the effects of the conflict by paying out the money before 12 June. On 9 June, the social insurance authorities applied to the FA for a dispensation from the announced lockout. The application was denied.
9. 1136. The Government adds that the escalation of the conflict would have had obvious safety consequences: an accumulation of cash in shops as well as by individuals would increase the risk for robbery and other crimes.
10. 1137. In the afternoon of 9 June, the Bank was informed that the international foreign exchange settlement system, the Continuous Linked Settlement (CLS), had decided that settlements in NOK would be suspended from 12 June if the conflict escalated as announced. The CLS was established in 2002 in order to reduce the risks connected to settlements of foreign exchange transactions. This would have been the first time any participating currency ever had been suspended from the CLS. The CLS explained its view by referring to a considerable nervousness among foreign parties towards the settlement in NOK when banks are closed. The CLS feared that the trust in the system would suffer. It also emphasized that the use of emergency procedures constituted an unnecessary risk. In order to restore peace in the market, CLS thus decided to suspend the NOK.
11. 1138. The Financial Supervisory Authority of Norway also warned that an extensive conflict in the bank and financial sector would have rapidly paralysed many vital functions of the society, financial institutions and the stock market. It considered that contrary to the labour conflicts in the health or transport sectors, where it was possible to reduce the most serious consequences by ensuring the functioning of essential services, in the financial sector, one could hardly differentiate between serious and less-serious functions that needed to be maintained during the dispute.
12. 1139. Against this background, the Government was of the opinion that the consequences of the announced escalation led to a situation where public interests were endangered and were so detrimental to society that the situation had to be avoided. The Government emphasizes that transfer of payments constitutes an infrastructure which is critical to modern society and which could not be disrupted. The conflict would cause a close down of practically all bank activities and would immediately result in serious problems for receivers of national insurance benefits, for the individual consumer and for trade and industry. It was beyond any doubt that the conflict would have to be stopped very shortly. The meetings the Minister of Labour and Social Inclusion had with the parties clearly showed that the situation was deadlocked with limited possibilities for the parties to come to terms.
13. 1140. The Government disagrees with the FSUN’s statement that the legislation of 16 June 2006 on compulsory arbitration specifically, and the entire system of compulsory arbitration as applied by the Norwegian Government, in general, contravene the guarantees provided by Conventions Nos 87 and 98. In Norway, workers enjoy a very far-reaching right to strike. No prohibition against the right to strike exists, except for the military forces and senior civil servants. However, there is a broad consensus that the Government has an ultimate responsibility for preventing labour conflicts from causing serious damage to the society. There has been a long tradition of special acts on intervention in labour conflicts causing serious damage to society adopted by Parliament. In the earlier years, some interventions were undoubtedly in breach of the Conventions. During the last 10 to 15 years there has, however, been a positive development, due to the increased awareness of international human rights. The crucial point is that each conflict and its effects have to be considered individually.
14. 1141. The Government rejects the FSUN’s characterization of the Government’s assessment of the situation as based on hypothetical risks and possible results. The Government based its assessment on the reports and evaluations by the surveillance authorities, which are independent institutions. Moreover, the weekend before the announced strike/lockout, many ATMs were emptied; this was a warning of the difficult situation that could have rapidly arisen.
15. 1142. With regard to the union’s statement that minimum services could have been ensured as provided in the agreement, the Government points to the complainant’s statement, according to which the lockout disqualified the earlier agreements between the parties. Moreover, if the union was of the opinion that their minimum services agreement could have replaced the use of the “closing-down-doctrine”, the union should have addressed the matter at the meetings with the Minister on 9 and 11 June, in order to bring this to the Government’s attention. In the Government’s understanding of the ILO recommendations concerning minimum services, agreements to that effect should preferably be concluded by the parties and, preferably, not during the conflict. As to whether it should have tried to impose minimum services, the Government does not believe that it would have been possible or have had any effect. In its opinion, the responsibility for an agreement on minimum services rests with the two conflicting parties. The Government has, however, noted the Committee’s recommendations in Case No. 2484 and will study them carefully.
16. 1143. With regard to the FSUN’s statement, the Government would use compulsory arbitration even if it were in breach with the ILO Conventions, the Government confirms that this wording is in fact used in all bills proposing compulsory arbitration. This wording was included in the Bill due to the internal legal conditions and the position of the international law in the Norwegian legal system.

C. The Committee’s conclusions

1. 1144. The Committee notes that this case concerns the imposition by the authorities of a compulsory arbitration procedure to end a strike in financial services. According to the information provided by the complainant and the Government, the strike, which started on 1 June 2006 in connection with the revision of a collective agreement in the financial sector in spring 2006, was ended by an Act of Parliament dated 16 June 2006; the dispute was referred to the National Wages Board and decided on 17 August (16 August according to the complainant) 2006.
2. 1145. The Committee notes that, according to the complainant, the negotiations reached a dead end when the employers refused to negotiate on procedures relating to changes in occupational pension schemes, arguing that occupational pension schemes were not matters on which trade unions had the right to bargain collectively. A strike notice was then served on 5 May 2006 announcing that a strike in the insurance sector would begin on 1 June. On 12 May, the FSUN warned that 1,573 employees of the banking sector (6 per cent of its members) would join the strike on 12 June. The FA responded on the same day declaring a full lockout of all banks and insurance companies on 12 June.
3. 1146. The Committee notes from the information provided by the complainant and the Government that both parties tried to reach an agreement through mediation. It further notes that the Minister of Labour and Social Inclusion met with the parties to urge them to find a mutually acceptable solution. The Committee notes that the complainant considers that this interference of the Minister in the dispute was in breach of Conventions Nos 87 and 98.
4. 1147. The Committee notes that while the complainant considers that financial services are not essential in the strict sense of the term, the Government argues that in view of the technological progress which allowed money-less transactions, nowadays, banking services should be considered essential, the interruption of which could paralyse the functioning of society and would have threatening effects on trade, commerce and on the life and health of the population. It provides an extensive argumentation to support its view.
5. 1148. The complainant, on the other hand, considers that the Government should have required minimum services instead of imposing compulsory arbitration and sought alternative solutions to any immediate problems rather than making an assessment on hypothetical results and bringing to an end all industrial action, including that which had already begun in the insurance sector and for which no imminent threat to the life, personal safety or health of whole or part of the population could be adduced. The complainant adds that some agreed minimum services had indeed been provided in accordance with the collective agreement in force; however, these would have been suspended following the employers’ decision to impose a full lockout and resort to the “closing-down-doctrine” where the common services of all banks would cease to function. The Government, for its part, considers that minimum services should have been determined by the parties themselves without its interference in the matter. According to the complainant and the Government, an extensive lockout by the employers annulled all agreements between the parties in this respect and created a situation wherein the minimum service required could not be met.
6. 1149. The Committee considers that it is difficult to reconcile arbitration imposed by the authorities at their own initiative with the right to strike and the principle of the voluntary nature of negotiation. It further recalls that compulsory arbitration to end a collective labour dispute and a strike is acceptable if it is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, i.e. in the case of a dispute in the public services involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those services, the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The insurance and banking services do not constitute such services [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 564 and 587].
7. 1150. In the first place, the Committee observes that the impact of the Act of 16 June 2006 was to impose compulsory arbitration not only in respect of the banking sector, but also as regards the initial strike action on 1 June concerning employees in the insurance sector and for whom the same arguments of paralysis of the economy had not been made by the Government nor had the Government even referred to the consequences of this strike necessitating a minimum service. The Committee therefore considers that recourse to compulsory arbitration in respect of the strike in the insurance sector was contrary to general principles relating to the right to strike and the voluntary nature of collective bargaining. It expects that the Government will avoid in the future enacting legislation which has the effect of bringing to an end all industrial action in a dispute especially where it relates to a sector that cannot be considered essential in the strict sense of the term and for which no particular difficulties have arisen to justify the imposition of a minimum service, such as the insurance sector in this case.
8. 1151. As regards the banking sector, the Committee appreciates the arguments presented by the Government with respect to the impact of the warned total lockout in that sector, but notes that by linking restrictions on strike action to interference with trade and commerce, a broad range of legitimate strike action could effectively be impeded. Moreover, the Committee expresses its concern at the extensive lockout declared by the FA (apparently in conflict with the provisions of the Master Agreement in relation to minimum services) in response to the FSUN’s declaration of extension of the strike to the banking sector with a call to an additional 6 per cent of its members to go on strike (1,573) and the allegations that the FA made a statement to the effect that the lockout was declared in order to provoke the Government to resort to compulsory arbitration. The Committee cannot ignore the impact which the declaration of a full lockout in the banking sector, combined with the reference to the necessity of recourse to the “closing-down-doctrine”, had upon the assessment of the vast consequences upon daily life in Norway expected by the industrial action.
9. 1152. While the Committee considers that banking services are not essential in the strict sense of the term, the Committee does consider that in order to avoid damages which are irreversible, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes, the authority could have imposed respect for the procedures relating to the minimum services agreed to by the parties in the Master Agreement rather than impose compulsory arbitration. While the Committee does consider that, ideally, the minimum services to be provided should be negotiated by the parties concerned, preferably prior to the existence of a dispute, it does recognize that the minimum service to be provided in cases where the need arises only after the declaration of the strike can only be determined during the dispute. In the absence of any agreement by the parties in this regard at the specific enterprise level, an independent body having the confidence of the parties could have been set up to impose a minimum service sufficient to address the concerns of the Government about the consequences of the dispute in the banking services, while preserving respect for the principles of the right to strike and the voluntary nature of collective bargaining. In the present case, the Committee regrets that the Government made no attempt to negotiate a minimum service in the banking sector with the parties concerned and, in the event of a disagreement, to refer the matter for determination by an independent body.
10. 1153. In the light of the above, the Committee expresses its concern that the Act of 16 June 2006 is not in conformity with Conventions Nos 87 and 98. It recalls that a minimum service could be appropriate as a possible alternative in situations in which a substantial restriction or total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met [see Digest, op. cit., para. 607]. The Committee further notes that the situation was aggravated mainly by the full lockout and refusal of the FA to grant dispensation or request the minimum services contained in the Master Agreement to apply. Noting the Government’s indication that it will study the Committee’s recent recommendations in Case No. 2484 concerning the imposition of compulsory arbitration in the elevator sector, in particular as concerns the question of the establishment of minimum services, the Committee expects that the Government will ensure that, in the future, consideration will be given to the negotiation or determination of a minimum service rather than imposing an outright ban on industrial action through the imposition of compulsory arbitration.
11. 1154. With regard to the complainant’s allegation that the FA had refused to negotiate on procedures relating to changes made in occupational pension schemes under the pretext that this matter was excluded from the scope of collective bargaining, the Committee recalls that matters which might be subject to collective bargaining include the type of agreement to be offered to employees or the type of industrial instrument to be negotiated in the future, as well as wages, benefits and allowances, working time, annual leave, selection criteria in case of redundancy, the coverage of the collective agreement, the granting of trade union facilities, including access to the workplace beyond what is provided for in legislation, etc.; these matters should not be excluded from the scope of collective bargaining by law [see Digest, op. cit., para. 913]. The Committee considers that procedures relating to changes in occupational pension schemes are legitimately within the ambit of subjects relating to terms and conditions of employment upon which collective bargaining may be engaged in and notes in this respect that nothing in Norwegian legislation would appear to limit collective bargaining in this regard and that, to the contrary, the Government had intervened initially merely to encourage the parties to reach an agreement on the matter.
12. 1155. Finally, with regard to the complainant’s allegation of undue interference by the Minister of Labour and Social Inclusion in the dispute, the Committee notes that according to the information provided by the complainant and the Government, the Minister met with the parties to urge them to come to an agreement. In these circumstances, the Committee considers that urging the social partners, within the framework of the encouragement and promotion of the full development and utilization of collective bargaining machinery, to find a mutually acceptable solution to the conflict, is not contrary to Conventions Nos 87 and 98.

The Committee's recommendations

1. 1156. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee expects that, in the future, unless it faces an emergency situation, which would endanger the life, personal safety or health of the whole or part of the population, the Government will avoid enacting legislation which has the effect of bringing to an end all industrial action in a dispute, especially where it relates to a sector that cannot be considered essential in the strict sense of the term and for which no particular difficulties have arisen to justify the imposition of a minimum service, such as the insurance sector in this case, and that consideration will be given to the negotiation or determination of a minimum maintenance service in a sector such as the banking sector, rather than imposing an outright ban on industrial action through the imposition of compulsory arbitration.

Annex

1. Master Agreement between the FSUN and the FA
2. Chapter 8
3. Sundry Provisions
4. 28. Formation of wage agreement
5. As a general rule, the Finance Sector Union of Norway will follow the established practice that has existed for many years in Norwegian working life to use industrial action for the formation of a wage agreement if only a minority of the employees are organized.
6. 29. Submission of the collective agreement at company level
7. The parties to the collective agreement at company level shall be under an obligation to submit a new or revised collective agreement at company level to the Employers’ Association of the Norwegian Finance Sector and the Finance Sector Union of Norway respectively.
8. 30. Work in connection with industrial dispute/exempt group
9. A. Work in connection with industrial dispute
10. 1. The Employers’ Association of the Norwegian Finance Sector and the Finance Sector Union of Norway presuppose that, if required and in good time before the expiry of the General Agreement, guidelines will be prepared or agreements will be entered into in the individual enterprise that regulate conditions regarding the stoppage and resumption of the activities in the enterprise in order to protect assets to the greatest possible extent and, moreover, to contribute to rapid and efficient resumption of the work after the end of the industrial dispute.
11. 2. Agreements covered in the previous sub-clause shall require approval by the Employers’ Association of the Norwegian Finance Sector and the Finance Sector Union of Norway.
12. B.Exempt group
13. 1. The enterprise may demand that named employees of a number stated below shall not be covered by a collective notice of termination (exempt group):
14. – enterprises with more than 1,000 permanent employees may demand a number of exempt employees corresponding to 2 per cent;
15. – enterprises with less than 1,000 permanent employees may demand a number of exempt employees of up to 2 per cent, however, at least one employee if such enterprises have not appointed a deputy for the enterprise’s chief executive.
16. The purpose of this scheme is to prevent permanent loss of major assets and is, moreover, not meant to weaken the effect of any official work stoppage in pursuance of the Norwegian Industrial Disputes Act.