Informe definitivo - Informe núm. 392, Octubre 2020

Caso núm. 3372 (Noruega) - Fecha de presentación de la queja:: 17-OCT-19 - Cerrado

Allegations: The complainant alleges the adoption of a legislation imposing compulsory arbitration to end a legal strike

1. 822. The complaint is contained in a communication dated 17 October 2019 from the Norwegian Nurses Organisation (NNO).
2. 823. The Government provided its observations in communications dated 4 May and 2 July 2020.
3. 824. 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. 825. In its communication dated 17 October 2019, the NNO alleges the adoption of a legislation to end a legal strike through compulsory arbitration to resolve the dispute between it and the Confederation of Norwegian Enterprise (NHO)/Norwegian Federation of Service Industries and Retail Trade (NHOSH) concerning the terms and conditions of Agreement 527 of 2018. It alleges in this respect that the Government did not implement the Committee’s conclusions in the 12 cases concerning Norway raising similar issues of legislative intervention in the collective bargaining process. The NNO alleges that the National Wages Board (NWB) does not have sufficient impartiality and independence to constitute a compensatory guarantee in the event of the prohibition of strikes in essential services.
2. 826. The complainant explains that it is a nationwide trade union for nurses and midwives. With 116,000 members, or approximately 95 per cent of all organized nurses and nearly 90 per cent of all nurses in the country, it represents the largest number of workers employed in the health care sector in the country. The NNO is a member of the Confederation of Unions for Professionals, Norway (Unio). Nearly half of its members in the health care sector are covered by a collective agreement negotiated by the NNO and 1,200 NNO members are covered by an agreement negotiated by Unio on behalf of the NNO.
3. 827. The complainant further explains that while the NHO is Norway’s largest federation of organizations that represent privately held businesses, its representation in the health sector is not very significant. The NHO is part of all collective agreements made by its affiliates.
4. 828. The complainant further explains that Agreement 527 is the outcome of a decision by the NWB to which the dispute between the NNO and NHO/NHOSH businesses regarding the renegotiation of Agreement 481 was referred to by an Act of Parliament. The NNO relates that in that case, when the negotiations broke down and the compulsory mediation did not result in any agreement, members of the NNO went on strike in January 2010. A few weeks after the strike began, the Government intervened recommending that Parliament adopts a legislation to end the strike and to refer the dispute to compulsory arbitration. On 11 May 2010, three months after the strike had ended, the NWB issued its decision by which it established Agreement 527. The NNO indicates that it has renegotiated Agreement 527 several times, making improvements on the sectors covered by the agreement, the level of remuneration and the social conditions. The Agreement covers nursing homes, hospital patient hotels, rehabilitation businesses, administration, occupational health services and involuntary pregnancy advisory services and other health related businesses. Sixty-five companies were covered by the Agreement in 2018. According to the complainant, Agreement 527 remains substantially less favourable than any other agreement the NNO is a party to.
5. 829. The complainant indicates that its main priority in the 2018 renegotiation of Agreement 527 was to improve the minimum wage for nurses in order to close the minimum wage gap that exists between the collective agreement with NHO/NHOSH and collective agreements with other employers’ organizations and federations. However, this endeavour has failed once again. As compulsory mediation did not result in a revised agreement, 56 out of 501 NNO members went on strike in seven businesses. According to the complainant, all seven businesses affected by the strike performed non-essential services and thus, the strike did not threaten the life or health of any patients from any of the businesses concerned. According to the complainant, this is confirmed by the Government’s proposal to Parliament stating that the NNO strike did not endanger life or health in any of the seven businesses affected. Hospital patient hotels, rehabilitation businesses, administration, occupational health services and pregnancy advisory services were not mentioned in the risk assessment by the health authorities, thus it was clear that these businesses are not performing “essential services” in the strictest sense of that term.
6. 830. The complainant alleges that although the Basic Agreement between the NNO and the NHO/NHOSH regulates procedures for determination of minimum services, none of the businesses covered by the agreement and affected by the strike initiated negotiations on this matter. After three weeks, on 16 November 2018, the NHO/NHOSH announced a lockout of all of NNO’s members, effective 21 November 2018. The lockout affected 65 businesses and 501 NNO members. According to the complainant, the health authorities considered that the NHO/NHOSH lockout would pose an immediate threat to life and health. After concluding that no voluntary agreement could be reached between the parties, the Minister of Labour and Social Affairs informed the parties that she would recommend a legislation to impose compulsory arbitration to resolve the dispute. Both parties agreed to resume work while waiting for Parliament to pass an Act mandating the dispute to be resolved through compulsory arbitration. The Act became law on 20 December 2018.
7. 831. The NNO agrees that a lockout of all NNO members in the 65 businesses would have had serious consequences in a number of the businesses affected by the lockout. However, according to the complainant, among the 65 businesses included in the lockout, a significant number perform non-essential services. The complainant explains that while the regional health authorities and the municipalities can choose to leave the delivery of health care services to private service providers, legal responsibility to provide health care services remains a public one. The complainant alleges that while the Government was aware of the possibility of a strike/lockout more than a month before the compulsory mediation occurred, neither the Government nor the local authorities responsible for providing services took any action to reduce the potential impact on third parties.
8. 832. The complainant points out that the ILO has repeatedly noted that the Norwegian Government should encourage social partners to negotiate a minimum service or, in the event of a disagreement as to the number workers and their duties, refer the matter to an independent body. The complainant alleges that the Government did nothing to ensure the right to collective bargaining. The lack of regulation of minimum services gives an irresponsible party the possibility to act in a manner that prompts the Government to intervene, instead of making an effort to resolve the dispute. The NNO stresses that, even though the basic agreement between the NHO and NNO contains rules on minimum staffing, none of the businesses affected by the strike/lockout initiated any negotiations in this respect before or during a strike. The complainant alleges that this strategy is used by employers in the health care sector. The reason for the intervention was the scale of the NHO/NHOSH lockout combined with a failure of public authorities to comply with their legal obligation to provide statutory health services to citizens. The NNO considers that the decision to refer the dispute to compulsory arbitration in this situation was unjustified, as minimum services could have been imposed to ensure that the strike did not endanger the life, personal safety or health. According to the complainant, this would have secured the right to strike in harmony with the obligations identified in Conventions Nos 87 and 98. The NNO considers that repeated interventions by the Government undermine the right to collective bargaining and weaken the possibility of reaching a voluntary agreement.
9. 833. The NNO alleges that the Government’s decision to prohibit the strike and refer the dispute to compulsory arbitration for businesses conducting non-essential services was unjustified. Where the right to strike is restricted or prohibited in certain essential services, adequate protection should be given to the workers to compensate for the limitations placed on them. This includes the right to an impartial and speedy arbitration process.
10. 834. The complainant indicates that Norway has no legislation limiting the right to strike, nor any general legislation on the use of compulsory arbitration. The Parliament adopts a separate act in each individual case, prohibiting the right to strike and referring a dispute to compulsory arbitration by the NWB. The complainant indicates that in principle, the NWB was intended for voluntary arbitration, but it has played a very limited role as a voluntary arbitration mechanism. Instead, the NWB has been frequently used to resolve disputes using compulsory arbitration following the Government’s intervention. The NNO indicates in this regard that the Government has repeatedly intervened in the right to collective bargaining in disputes concerning Agreements 481 (in 2002 and 2012) and 527 (in 2010 and 2018).
11. 835. The complainant further alleges that no measures were taken to ensure the impartiality of the NWB members representing the interests of employees and employers. It explains in this regard that the NWB Act regulates the appointment of the Board’s members, stating that three of the five members must be impartial in accordance with the criteria set out for judges. However, no similar safeguards exist as concerns the members representing the interests of employers and employees. The Government always appoints representatives from the NHO as members to represent the interests of employers and representatives from the Norwegian Confederation of Trade Unions (LO) to represent the interests of employees. According to the complainant, the LO and NHO representatives have a clear incentive to try to persuade the arbitration court to decide in favour of a solution in accordance with the policies of the two organizations. The participation of these two organisations clearly makes the NWB a dispute mechanism that lacks the necessary impartiality.
12. 836. The complainant further indicates that the NHO/NHOSH had three representatives to defend its interests on the NWB and points out that the NHO is a party to all collective agreements concluded by its affiliates and whose representative participated in the negotiations on Agreement 527; moreover, the NHO was heavily involved in the lockout decision that was approved by the NHO board in accordance with NHO statutes. The complainant considers that the NHO/NHOSH had a clear interest in the result of the arbitration. The fact that the NHO/NHOSH had three members on the NWB and the NNO had only two members demonstrates that the Government has failed to provide sufficient guaranties to compensate for the limitations to the right to strike.
13. 837. The NWB Act regulates voluntary arbitration, but very few organizations have used the NWB to resolve disputes on a voluntary basis for the last 40 years. No union is willing to be judged by an arbitration court composed of two non-impartial members, representing political views and priorities that are different from those held by the disputing parties. The NNO considers that this confirms the view that the NWB lacks the necessary impartiality. Referring a case to compulsory arbitration with two members that are not impartial is clearly problematic in relation to freedom of association. The complainant further questions whether the NWB can be considered to be independent of the Government. The members are appointed by the Government after informal consultation with NHO and LO; thus, according to the complainant, they are known to be loyal to the model and to the two federations. Even if the three so-called neutral members cannot be instructed in what to decide, an institutionalized bond exists between the Government and the members, clearly defining how cases are to be resolved, reducing the impartiality of the NWB.
14. 838. The NNO considers that the NWB imposed an agreement, negotiated between NHO and LO, on the two parties involved in the dispute. In the complainant’s view, the NWB subordinated the NNO to the considerations of LO, although the NNO is not a member of that confederation. Furthermore, the result imposed on the NNO was based on increases in wages effective from 1 April 2018, whereas the NWB made wage increases for NNO members effective from 21 November 2018. According to the complainant, this decision also followed a principle developed by the NWB – the result of compulsory arbitration should economically favour the employer. This resulted in a situation where the nurses organized in the Norwegian Confederation of Trade Unions (LO)/Norwegian Union of Municipal and General Employees (NUMGE) received their pay raise nearly eight months earlier than the nurses organized in the NNO. Lastly, NNO members whose employment terminated before the NWB made its decision on 21 March 2019 were not entitled to any pay increase. It took more than three months before the NWB was summoned, which had an economic impact on the employees. Thus, according to the complainant, workers who exercised their right to strike were left in a less favourable position. Moreover, the NWB decisions favouring the employer economically, have the potential to undermine the right to collective bargaining as they reduce the interests of employers to reach an agreement. The complainant considers that imposing the result negotiated by a union representing only 25 nurses on 501 NNO members undermines the fundamental rights of workers to strike to defend their economic interests and challenges the possibility of free collective bargaining. The NNO alleges that the Government has failed to provide for compulsory arbitration where the result was not pre-determined.

B. The Government’s reply

1. 839. In its communication dated 4 May 2020, the Government indicates that the dispute arose during the revision of Agreement 527 between the NNO and the NHO/NHOSH in connection with the 2018 collective wage settlement. After the negotiations broke down, the National Mediator issued a temporary work stoppage ban on 27 September 2018 and summoned the parties to mediation. On 19 October 2018, the employee side demanded that mediation be discontinued and announced a collective work stoppage for 56 members. The Mediator then had four days to bring the parties to an agreement. The mediation was concluded without result in the morning of 25 October 2018. On the same day, the NNO implemented the announced strike, which affected nurses at seven companies. There were no situations reported to have resulted in a threat to life or health due to the strike. No further escalation of the strike was announced. On 16 November 2018, NHOSH announced a lockout. The lockout was notified to apply to 445 members of the NNO. The lockout would have meant that 501 employees in 65 companies would have been absent from work as of 21 November 2018. The overall assessment of the Norwegian Board of Health Supervision was that the implementation of the lockout would lead to immediate danger to life and health of people. On the basis of that report, the Minister of Labour and Social Affairs called the parties to a meeting on 20 November 2018. The parties informed the Minister that they saw no immediate possibility to reach a consensus that would settle the dispute and prevent further escalation of the industrial action. In light of this, and of the Norwegian Board of Health Supervision’s report, the Minister informed the parties that the Government had no choice but to intervene and propose that the dispute should be solved by the NWB. At the request of the Minister, the NNO and the NHOSH expressed their willingness to abandon the industrial actions immediately.
2. 840. The Government points out that while the right to industrial action is not expressly mentioned in Conventions Nos 87 and 98, it can be derived from the principles of freedom of association. Without protecting the right to strike (sic), in particular the right to organize activities for the purpose of promoting and protecting workers interests, the right to strike cannot be fully realized. The Government further points out that the ILO supervisory bodies consider that the right to strike is not an absolute right and may be subject to a general prohibition in exceptional circumstances. The exercise of this fundamental right may also be governed by provisions laying down conditions or restrictions thereon. The consequences of a labour conflict may become so serious that interventions or restrictions in the right to strike become compatible with the principles of freedom of association.
3. 841. The Government indicates that there is a long tradition in Norway for collective bargaining and that the right to organize and collective bargaining are recognized to be fundamental parts of Norwegian law. There are no legal restrictions as to who can form and join trade unions and organizations and there is no interference from the authorities concerning the drafting of constitutions and rules of trade unions and organization of their activities. The right to industrial action is part of the right to free collective bargaining, including in health and care services. No prohibition of strikes or lockouts exists except for the armed forces and senior civil servants. These groups nevertheless enjoy the right to organize and the right to collective bargaining. The role of the authorities is to pave the way for the social partners to take responsibility for wage setting through collective agreements. This role implies offering good solutions regarding mediation and arbitration to solve disputes of interests and a labour court to solve disputes of law. To balance this wide, unrestricted freedom of organization and collective bargaining, including the right to industrial action, there is a broad consensus that the Government has an ultimate responsibility for preventing labour conflicts from causing serious damage. If the Government finds that a conflict has such damaging effects that life, personal safety or health or vital public interest are endangered, it submits a separate bill to Parliament, proposing the strike/lockout in question to be forbidden and for the conflict to be solved by the NWB.
4. 842. The Government explains that when it intervened in the present case, the parties were engaged in collective bargaining over an extended period of time, had been through compulsory mediation with the National Mediator and the union had been on strike for almost 30 days. At all times leading up to the NWB final decision the parties to the dispute had the opportunity to reach an agreement without interference.
5. 843. Regarding the NNO allegation that the decision to refer the dispute to compulsory arbitration was unjustified, as minimum services could have been imposed to ensure that the strike did not endanger life, personal safety or health, the Government indicates that it puts great effort into being in compliance with its obligations under the Conventions. The Parliament intervenes only when it is absolutely necessary to prevent labour conflicts from causing serious societal damages. This system does not deprive any of the parties to the dispute of the right to industrial action, regardless of its consequences. The Government considers that the fact that it did not impose minimum services does not constitute a breach of the Conventions as these instruments do not oblige member States to impose minimum services to ensure that an industrial action does not endanger life, personal safety or health.
6. 844. The Government points out that the basic principle in Norway is that collective bargaining is the sole responsibility of the social partners and that the authorities should not interfere. The recourse to compulsory arbitration is not a tool that the Government uses willingly. The Government points out that on several occasions, and as per request of the Committee, especially as outlined in Case No. 3147 (2016), it has invited the parties to discuss alternative solutions to compulsory arbitration, including possible ways of reducing the need for intervention by the Government in industrial actions. These discussions have included the possibility of establishing minimum services, among other mechanisms. The parties have also been invited to describe whether and how collective agreements cover agreements on such mechanisms, and to give an overview of their use. The Government emphasizes that any amendments to the procedures and practice concerning the national framework for industrial actions must be handled with understanding and in close cooperation with the social partners. While the Government’s impression is that the social partners have been somewhat reluctant, it will continue to discuss these issues with the social partners in order to give effect to the Committee’s earlier conclusions.
7. 845. The Government considers that in the present case, its intervention was necessary, just and in accordance with the Conventions and with the Committee’s conclusions in previous cases when it maintained that compulsory arbitration to end a collective labour dispute and a strike is acceptable in case of disputes in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. The strike in the present case included workers in various parts of the private health and care sector. Even if the initial strike at the time of the intervention did not immediately endanger life and health, the Government had to take under consideration the situation as the whole. Faced with the possibility that a lockout, as a part of the same conflict, would include another 445 workers in different institutions, it was clear that the actions would affect the public health. The situation was that several nursing homes and home services would be without nurses. This situation would immediately affect the health service in several of the country’s municipalities. In particular, according to the Norwegian Board of Health Supervision, the health service in the Oslo area and in the municipality of Austevoll would face grave challenges. In the Oslo area, nursing homes with a total of 532 residents, a home service with 200 home care users and a security alert service with over 33,000 users nationwide would be immediately affected. In the municipality of Austevoll, nursing home and home nursing services would be unable to continue to operate. The situation for more than 500 residents of nursing homes would be especially difficult; according to the Norwegian Board of Health Supervision, moving these patients would be risky, as it may cause (increase) state of confusion of patients, deterioration in health or even death. Based on the above, the Government assessed that the services affected in the dispute fall within the scope of essential services in the strictest sense due to a clear and imminent threat to the public health, and that the intervention in the dispute for that reason was necessary.
8. 846. Regarding the NNO’s allegation that the Government has failed to secure the impartial treatment of the dispute when appointing members to the compulsory arbitration, to provide for compulsory arbitration where the result was not pre-determined and to safeguard the economic interests of workers involved in the dispute, the Government emphasizes that the NWB is a free-standing and independent body which resolves disputes. It has many features in common with a court of justice. It decides the disputes brought before it on an independent basis and applies its own discretion. The Government has no influence on the Board’s proceedings, deliberations or decisions, which are made by five members. Regarding, the NWB membership, the Government indicates that three of the members are neutral, appointed after consultation with the social partners for a three-year period. Usually, the appointees are judges or have a background in economy. In the case at hand, the three neutral members were a judge, a professor of law and a research professor in economics. Each of the parties involved in the dispute appoints one voting member. In addition to the five voting members, the Board has two advisors representing the parties in the dispute and two advisors representing workers and employers interests in general and who have a particular insight into nationwide tariff conditions. In its decision, the Board takes into consideration the economic situation, negotiations on the national level and results from prior negotiations. The Board is not bound by any guidelines or instructions from the Government’s side and is free to arrive at any result it finds to be fair and reasonable. This includes the decision on the time from which the result should enter into effect. The Government considers that the arbitration process was fair and independent and gave the NNO an opportunity to argue its case and promote its interests.
9. 847. By a communication dated 2 July 2020, the Government submits the following joint observations of the International Organisation of Employers (IOE), the NHO and the NHOSH on the complaint in this case:

C. The Committee’s conclusions

1. 848. The Committee notes that the complainant in this case, the NNO, alleges the adoption of a legislation to end a legal strike and the use of compulsory arbitration to resolve the dispute between it and the NHO/NHOSH concerning the terms and conditions of Agreement 527. The NNO further alleges that the Government did not implement the Committee’s conclusions in the 12 cases concerning Norway raising similar issue of legislative intervention in the collective bargaining process. It also alleges that the NWB lacks guarantees of independence and impartiality.
2. 849. The Committee understands the course of events that led to compulsory arbitration as follows. The dispute arose during the revision of Agreement 527 between the NNO and the NHO/NHOSH in connection with the 2018 collective wage settlement. After the negotiations broke down, the National Mediator undertook to mediate the case and issued a temporary work stoppage ban on 27 September 2018. On 19 October 2018, the NNO demanded that mediation be discontinued and announced a collective work stoppage for its 56 members. As the mediation was concluded without result on 25 October 2018, the NNO implemented the announced strike, which affected nurses in seven companies.
3. 850. The Committee notes that both the NNO and the Government considered that the strike did not cause any situation resulting in a threat to life or health of the patients of the affected businesses. No further escalation of the strike was announced.
4. 851. The Committee further notes that on 16 November 2018, the NHOSH announced a lockout. The lockout was notified to apply to 445 members of the NNO and meant that 501 employees in 65 companies would have been absent from work as of 21 November 2018. According to the Government, the overall assessment of the Norwegian Board of Health Supervision was that the implementation of the lockout would lead to immediate danger to the life and health of the affected patients. Based on this consideration, the Government decided to intervene and to recommend the adoption of a special legislation referring the dispute to the NWB. On 20 November 2018, both parties, informed of the Government’s intention, agreed to resume work while waiting for Parliament to pass an Act mandating the dispute to be resolved through compulsory arbitration. The Act became law on 20 December 2018. The Committee notes that the NNO agrees that a lockout of all of its members in the 65 businesses would have had serious consequences on a number of businesses affected by the lockout. However, according to the complainant, among the 65 businesses included in the lockout, a significant number performed non-essential services. In these circumstances, the complainant alleges that while the Government was aware of the possibility of a strike/lockout more than a month before the compulsory mediation occurred, neither the Government nor the local authorities responsible for providing services took any action to reduce the potential impact on third parties. The complainant also alleges that while the Basic Agreement between the NNO and the NHO/NHOSH regulates procedures for determination of minimum services, none of the businesses covered by the agreement and affected by the strike initiated negotiations on this matter.
5. 852. The Committee notes in this respect that the NNO refers to the Committee’s recommendations in previous cases regarding the use of compulsory arbitration by the Government of Norway to end a legitimate strike and impose the terms of collective agreement. The complainant points out that on these occasions, the Committee had encouraged the Government to discuss with the social partners possible ways of ensuring that basic services are maintained in the event of a strike, the consequences of which might endanger the life or health of the population. The NNO points out that this recommendation is yet to be implemented. The Committee observes the Government’s indication that the basic principle in Norway is that collective bargaining is the sole responsibility of the social partners and that the authorities should not interfere in this process. The right to industrial action is guaranteed to all workers (including in health services) with the sole exception of the armed forces and senior civil servants. The Government indicates that compulsory arbitration is not a tool it uses willingly, but only if it finds that a conflict has such damaging effects that life, personal safety or health or vital public interest are endangered. The Government considers that the fact that it did not impose minimum services does not constitute a breach of the Conventions, as these instruments do not oblige member States to impose minimum services to ensure that an industrial action does not endanger the life, personal safety or health of the population.
6. 853. The Government points out that on several occasions, and as per request of the Committee, especially as outlined in Case No. 3147, it has invited the parties to discuss alternative solutions to compulsory arbitration, including possible ways of reducing the need for intervention by the Government in industrial actions. These discussions have included the possibility of establishing minimum services, among other mechanisms. The parties have also been invited to describe whether and how collective agreements cover agreements on such mechanisms and to give an overview of their use. The Government emphasizes that any amendments to the procedures and practice concerning the national framework for industrial actions must be handled in understanding and close cooperation with the social partners. The Government adds that while in its impression the social partners have been somewhat reluctant, it will continue to discuss these issues in order to give effect to the Committee’s earlier conclusions.
7. 854. The Committee further notes the position expressed by the employers’ organizations, which consider that the Government has no role to play in collective agreements concluded in the private sector and thus, was not in a position to negotiate a minimum service for the labour dispute in question. The NHOSH believes that the NNO would not have accepted an agreement on minimum services in any event as prior to the negotiations in 2019 it had already declined its local workers’ representative to enter into such an agreement with one of the NHOSH’s member companies. The employers’ organizations consider that in the present case, the use of compulsory arbitration was justified as it dealt with essential services and that in the particular circumstances of this case, the Government was justified to consider that the lockout would endanger the life and public health of the population in several municipalities. The Government was not obliged to impose minimum service, but rather was only encouraged to ensure that basic services are maintained through social dialogue. According to the employers’ organizations, in the present case, the Government made clear efforts to secure social dialogue on several occasions and intervened only when the lockout was about to endanger life and health of workers from different institutions.
8. 855. At the outset, the Committee recalls that in the past, it has dealt on multiple occasions with cases concerning compulsory arbitration in Norway, which was imposed in non-essential sectors through legislative intervention in the collective bargaining process thereby ending strike action. The present case is different to the extent that the Government argues to have intervened and imposed compulsory arbitration in services, the interruption of which would endanger the life and health of the patients of the affected private providers of health services. The Committee further notes that the NNO recognizes that some of the consequences may indeed have endangered the life or health in respect of certain businesses, but argues that several businesses were not essential services. The Government admits that it only intervened after the NHOSH declared a lockout of 65 health services companies and 445 NNO members; a situation which had been judged by the Norwegian Board of Health Supervision to endanger the life and health of the patients in the industry.
9. 856. The Committee 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, that is, in the case of disputes in the public service 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 whose interruption would endanger the life, personal safety or health of the whole or part of the population [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 816]. While noting that in Norway, workers in health services enjoy the right to strike and that a strike by a number of NNO members in at least seven health services companies was considered not to result in a situation where the life and health of patients was endangered, the Committee observes that it was only once the lockout was declared that all companies providing health services (including those which were initially considered to be non-essential) were treated as essential. In this regard, the Committee recalls that, in other cases concerning Norway, it had expressed its concern at the complainants’ statements that the notification of a full lockout by an employers’ organization in response to a strike notice constituted the employers’ “application” for compulsory arbitration, which was almost immediately accepted by the Government [see Cases Nos 3038, 372nd Report, paras 470 and 2545, 349th Report, paragraph 1151]. The Committee notes nevertheless that in this present case the NNO represents nurses and midwives and recalls its considerations that the hospital sector is an essential service [see Compilation, para. 840]. In the case of Norway where the legislation permits industrial action in the hospital sector or health services, the assessment of any risk justifying restrictions on the otherwise lawful industrial action is within the Government’s prerogative. The Committee therefore considers that the termination of the strike and lockout in the health services by the Norwegian Parliament does not constitute a violation of ILO principles on freedom of association.
10. 857. Regarding the use of minimum services, the Committee recalls that the establishment of minimum services in the case of strike action should only be possible in: (1) services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (essential services in the strict sense of the term); (2) services which are not essential in the strict sense of the term but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population; and (3) in public services of fundamental importance [see Compilation, para. 866].
11. 858. The Committee welcomes the Government’s indication that it engages with the social partners to give effect to the Committee’s previous recommendation regarding the establishment of negotiated minimum services in lieu of outright recourse to compulsory arbitration and trusts that these efforts will have the effect of promoting the resolution of disputes by the parties concerned.
12. 859. As to the allegation concerning the NWB, the Committee notes the complainant’s allegation to the effect that the Government always appoints representatives from the NHO as members to represent the interests of employers and representatives from the LO to represent the interests of employees, which in the NNO’s opinion makes the NWB a dispute mechanism that lacks the necessary impartiality. The complainant indicates that on the one hand, the NHO is party to the collective bargaining agreement in question and was involved in a decision to implement a lockout and on the other, the LO is not an organization of which the NNO is a member. In addition, according to the NNO, even if the three so-called neutral members cannot be instructed as to what to decide, an institutionalised bond exists between the Government and the members clearly defining how cases are to be resolved, reducing the impartiality of the NWB. The Committee notes the Government’s indication that the NWB is an independent body with many features in common with a court of justice. The Government has no influence on the Board’s proceedings, deliberations or decisions, which are made by five members, three of which are neutral members appointed after consultation with the social partners for a three-year period. Usually, the appointees are judges or have a background in economy. In the case at hand, the three neutral members were a judge, a professor of law and a research professor in economics. Each of the parties involved in the dispute appoints one voting member. In addition to the five voting members, the NWB has two advisors representing the parties in the dispute and two advisors representing workers and employers interests in general and who have a particular insight into nationwide tariff conditions. In its decision, the NWB takes into consideration the economic situation, negotiations on the national level and results from prior negotiations. The NWB is not bound by any guidelines or instructions from the Government and is free to arrive at any result it finds to be fair and reasonable. The Government considers that the arbitration process in question was fair and independent and gave the NNO an opportunity to argue its case and promote its interests.
13. 860. While recalling that in mediation and arbitration proceedings it is essential that all the members of the bodies entrusted with such functions should not only be strictly impartial but, if the confidence of both sides, on which the successful outcome even of compulsory arbitration really depends, is to be gained and maintained, they should also appear to be impartial both to the employers and to the workers concerned [see Compilation, para. 858], the Committee observes that the complainant appoints a voting member on the NWB, as well as an advisor to represent it. The Committee understands that the LO is the largest organization of workers in Norway and does not consider that its role as advisor representing workers’ interests in general calls into question the impartial nature of the Board.

The Committee’s recommendation

1. 861. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.