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Dock Work Convention, 1973 (No. 137) - Norway (RATIFICATION: 1974)

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The Committee notes the observations of the Norwegian Confederation of Trade Unions (LO), attached to the Government’s report.

Article 3 of the Convention. Registered dockworkers. In its previous observation, the Committee noted the information provided by the Government and the LO’s observations concerning the repercussions of the Supreme Court’s decision of 16 December 2016 in Case No. HR-2016-2554-P, Holship Norge AS v. Norwegian Transport Workers’ Union (NTF), on the implementation of the Convention, particularly as regards priority of engagement for registered dockworkers. The Committee recalls that, in this case, the Supreme Court concluded that the priority of engagement clause for dockworkers registered with the Administration Office of the Port of Drammen, contained in a collective agreement, constituted an unlawful restriction on the appellant enterprise’s freedom of establishment under Article 31 of the Agreement on the European Economic Area (EEA Agreement). It observed that the principle of priority of engagement was originally established to improve the situation of dockworkers, and the priority of engagement clause is anchored in Article 3 of the Convention. It also referred to Article 2 of the Convention, observing that the purpose of the instrument was to establish regular employment and payment conditions for dockworkers. However, in reaching its conclusions, the Court held that these considerations could be fulfilled by means other than granting priority of engagement for loading and unloading work to one group of workers. The Committee noted the Government’s indication that the parties to the case, considering the need for changes to the way dock work was organized and possible changes to the collective agreements, had engaged in dialogue. The Committee recalls the LO’s reference to the consistent case law of the national courts, which had previously upheld the validity of the priority of engagement clause. The LO also noted the tendency to no longer apply the priority of engagement clause in some ports where it was previously applied. According to the LO, loading and unloading operations were carried out by employees of the enterprises located in these ports, by workers these enterprises employed temporarily, and by the ships’ crew, at the expense of registered dockworkers, which was incompatible with Norway’s obligations under the Convention.

The Committee notes that, following the Supreme Court’s decision, the parties to the invalidated framework agreement negotiated and signed a collective agreement for ports and terminals in September 2017. It notes the Government’s indication that, despite the removal of priority of engagement from the new collective agreement, the social partners have agreed to give preference to workers on permanent, full-time contracts in jobs involving loading and unloading. The Government draws attention to clause 1 of the collective agreement, which indicates that work at the terminal will be carried out primarily by terminal employees, and mainly on the basis of full-time open-ended contracts. The Government also emphasizes that clause 16 of the collective agreement addresses the issue of temporary work by manual workers and employed workers by providing that “the parties agree that it is important to strive to make the sector attractive and reliable and that the employed workers must benefit from decent wages and working conditions. The parties are determined to prevent ‘social dumping’ and to ensure that challenges posed by the international labour market are resolved in an acceptable manner”. The Government therefore considers that its obligations under the Convention are fulfilled under this new framework. It indicates that dockworkers are guaranteed permanent employment and safe working conditions, in accordance with the requirements of the Convention, through legislation, together with collective agreements between the main social partners, ensuring their employment in full-time positions in ports and terminals.

The Committee also notes that, according to the LO, national practice may exclude certain workers from the definition of dockworkers, in particular workers from enterprises operating outside the framework of the collective agreement or who have no connection with the parties to the collective agreement. The LO also states that the collective agreement for ports and terminals now covers all full-time employees, temporary workers and casual workers employed by port operators, and loading and unloading offices in some ports. Under this new agreement, no register of workers deemed to be dockworkers has been established, as required by Article 3 of the Convention. The LO therefore considers that the Government is not applying this Article of the Convention and calls on the Government to comply with the long-standing request from the NFT and the Norwegian United Federation of Trade Unions to establish a register of dockworkers.

The Committee considers it useful to recall that the registration of dockworkers, under Article 3 of the Convention, originally responded to the need to ensure the permanent availability of qualified personnel for an occupation requiring versatility and training in modern cargo-handling techniques. In turn, membership for the workers concerned required them to be offered sufficient guarantees of employment and income. This balance could only be achieved by establishing registers of workers in order to implement a means of regularization of employment and stabilization of income, or to distribute the labour force in the ports. The Committee has always taken the view that the registration of dockworkers is merely an alternative to an ideal situation in which dockworkers benefit from or are guaranteed permanent employment. The Committee also recalled that the effectiveness of a means of regularization of employment in ports depends on a number of factors, such as the number of cargo-handling enterprises, the size and layout of the port and the diversity of cargo handled. Modern ports generally have a pool of workers benefiting from regular or even permanent employment, as well as a reserve pool of temporary or casual workers. Thus, the Dock Work Recommendation, 1973 (No. 145), provides for the possibility of separate registers for those in more or less regular employment and those in a reserve pool (paragraph 14) (see General Survey on Dock Work, 2002, paragraphs 112 and following). Lastly, the Committee recalls that the Convention and the Recommendation do not require any particular forms of register, as the form may be determined by national law or practice, depending on local circumstances (see General Survey, paragraph 120).

In the light of the above, the Committee requests the Government to provide information on the effects of the implementation of the collective agreement for ports and terminals in the Port of Drammen, in particular its effects on the employment of the permanent dockworkers associated with the port Administration Office and the reserve pool of workers identified in the previous framework agreement, and possibly in other major ports in the country. The Committee also invites the Government to report on any measures taken by the competent authorities or any initiatives taken by the parties to the collective agreement for ports and terminals concerning the establishment of a register of dockworkers, as requested by the Norwegian Confederation of Trade Unions (LO). Finally, the Committee requests the Government to provide its comments on the LO’s observations concerning the exclusion of a category of workers from the definition of dockworkers under the Convention, thereby placing them outside its coverage.

Application of the Convention in practice.The Committee requests the Government to provide a general appreciation in its next report on the manner in which the Convention is applied in the country, including, for instance, relevant extracts from reports, particulars of the numbers of dockworkers in the country, possibly disaggregated by type of contract (open-ended, temporary and casual) and of variations in their numbers over time.

The Committee noted information supplied by the following State in an answer to a direct request: Australia.