Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Denmark (Ratification: 1955)

Article 4 of the Convention. In several of its previous comments, the Committee had noted that section 10 of Act No. 408 – the Danish International Ships Register Act (DIS) – has the effect of, on the one hand, restricting the scope of negotiable issues by Danish trade unions by excluding from their bargaining power seafarers working on ships under the Danish flag who are not Danish residents and, on the other hand, preventing these seafarers from freely choosing the organization they wish to represent their interests in the collective bargaining process.

In its previous report the Government had indicated that the framework agreement between the social partners – the agreements on mutual information, coordination and cooperation concerning DIS ships, concluded since 1997 – had been prolonged to 31 December 2007. The Committee notes that the Government indicates in its report that this agreement has been most recently renewed for an indefinite period.

The Government indicated that this prolongation had taken the form of two agreements of 16 January 2004 (collective agreement with protocol attached) and of 15 December 2005 (collective agreement with protocol incorporated). The Government indicated in its report that two unions representing seafarers of a lower rank had wished not to be parties to the agreements: the United Federation of Danish Workers (3F) and its branch organization, the Union of Danish Seafarers, and the Union of Restaurant Workers (RBF) which had from 1 July 2006 been part of 3F. The Government had also indicated that the agreements still dealt with the conditions for seafarers and contained objectives concerning employment of Danish seafarers at an internationally competitive level, training of Danish seafarers and coverage of collective agreements between Danish shipowners and foreign unions, etc.

The Committee notes that the Government indicates that the agreement also states that seafarers not resident in Denmark working onboard DIS ships have the right to be members of several trade unions (i.e. both a Danish trade union, and a trade union in their home country) and that this enables the seafarers’ contracting parties to represent a seafarer not domiciled in Denmark or a foreign trade union in matters relating to the Danish legislation and assist seafarers without a Danish residence in relation to the Danish public authority. Additionally, the Government indicates that it has not received information that the collective agreements concerning wages and general working conditions on board Danish ships, regardless of whether they were concluded by Danish or foreign trade unions, were not at internationally acceptable levels.

In several of its previous comments, the Committee welcomed the agreements between the social partners, but observed that the legislative aspect of the matter had not been resolved and that two trade union organizations had again decided not to be bound by the new agreements. The Committee had underlined section 10 of Act No. 408 which has the effect of restricting the activities of Danish trade unions by prohibiting them from representing, in the collective bargaining process, those of their members who were not considered as residents in Denmark. Taking due note of the figures presented by the Government concerning the Danish shipping industry, and, in particular, that as of 2008, out of a total of 9,594 seafarers on DIS ships, 5,317 were foreigners and, stressing that this issue has been examined since 1989, the Committee requests, once again, the Government to indicate in its next report the measures taken or envisaged to amend section 10 of Act No. 408 so that Danish trade unions may freely represent all their members – Danish residents and non-residents – working on ships sailing under the Danish flag in the collective bargaining process, in conformity with Article 4 of the Convention.

Collective bargaining rights of majority organizations. This issue again relates to the application of section 12 of the Conciliation Act and had been raised in several previous comments following an examination by the Committee on Freedom of Association in Case No. 1971 in 1999. Section 12 makes it possible for an overall draft settlement, made by the public conciliator and sent out for ballot, to cover collective agreements involving an entire sector of activity, even if the organization representing most of the workers in that sector rejects the overall draft settlement. In several of its previous comments, the Committee had requested the Government to review the legislation, in consultation with the social partners, and to provide information on these consultations.

The Committee notes that the Government indicates in its report that, in the view of the Government, the rule on combining mediation proposals also takes into account the way in which the Danish employees’ and employers’ organizations wish things to be organized and that the Government will resubmit the issue of section 12 concerning the possibility of the public conciliator to combine mediation to the permanent ILO committee. While taking note of the Government’s arguments, the Committee recalls that it had stressed in several of its previous comments that section 12 of the Conciliation Act could, in some cases, have the result of excluding the most representative trade union organizations from the outcome of the negotiations of collective agreements or from the resolution of a conflict.

The Committee once again encourages the Government to engage in dialogue with the most representative workers’ and employers’ organizations on this issue in order to find the means to resolve it. The Committee requests the Government to indicate any developments in this regard, including the results of the resubmission of this issue to the permanent ILO committee. The Committee trusts that every effort will be made to fully ensure the collective bargaining rights of the most representative organizations and the principles of free and voluntary collective bargaining.