Effect given to the recommendations of the committee and the Governing Body - Report No 378, June 2016

Case No 3039 (Denmark) - Complaint date: 29-AUG-13 - Closed

Suites données aux recommandations du comité et du Conseil d’administration

1. 27. The Committee last examined this case, in which the complainants alleged that the Government violated the principle of bargaining in good faith during the collective bargaining process and extended and renewed the collective agreement through legislation without consultation of the workers’ associations concerned, at its October 2014 meeting [see 373rd Report, paras 230–265]. On that occasion, the Committee expressed the expectation that during the 2014–15 bargaining rounds between the Danish Union of Teachers (DUT), the Local Government Denmark (LGDK) and the Agency for the Modernization of Public Administration (Modernization Agency): (a) the Government would endeavour to promote and give priority to free and voluntary good faith collective bargaining as the means of determining employment conditions in the education sector, including working time; and (b) the principles concerning consultation with the organizations of workers and employers, when drafting legislation affecting collective bargaining or conditions of employment, would be fully respected.
2. 28. In their communication dated 27 May 2015, the complainants provide additional information. Firstly, they allege that for two years the Government has not allowed the DUT to contribute to calculations of the financial impact of the statutory intervention on groups of teachers. In this regard, the complainants explain that calculations of the costs of possible improvements are generally made in public collective bargaining on employment, pay and working hours. According to the complainants, the Ministry of Employment and the public employers stated that they have applied normal, standard calculation rules, which means that the statutory intervention has deprived teachers of several hundred million Danish krone, which over time have been allocated through collective bargaining to improve teachers’ working hours and the resources released from phasing out the special age reduction for teachers who have passed 60 years of age. The complainants indicate that since the introduction of Act No. 409, the DUT has repeatedly requested a meeting with the Ministry of Employment in order to discuss the matter but the meeting was consistently refused. Following the issuance of the Committee’s recommendations, the meeting finally took place in January 2015. Despite the purpose of the meeting having been made clear, the Minister of Employment refused to discuss both the circumstances leading to the statutory intervention by Act No. 409 and the financial calculation methods applied, stating that he had already acknowledged that the employee organizations had not been included in the preparation of the bill and that he had apologised for this. As this was the sole purpose of the meeting, it was concluded.
3. 29. Secondly, the complainants assert that the Government has again become involved in collective bargaining and has failed to allow genuine and free negotiations on working hours in the education sector in 2015. In particular, the complainants allege that although the DUT had put forward a demand that collective bargaining was to result in a new agreement on working hours to replace Act No. 409, both employers’ representatives had stated from the beginning of the negotiations that they could not change the content of the statutory intervention. In order to avoid subjecting schools to another conflict, lockout or strike, the DUT decided to participate in the negotiations. In addition, the complainants specify that the negotiations with the LGDK were influenced by the political interest in teachers’ working hours and in particular, at the moment when negotiators appointed by the employers and the DUT had completed a draft agreement, the LGDK was contacted by the Ministry of Finance and urged to change the draft agreement, thus stalling and prolonging the negotiations (although there is no written evidence, DUT negotiators were direct witnesses to this interference). It was not possible to negotiate new agreements on working hours but only to make initiatives to realise the Act locally. According to the complainants, the Government has been unable to maintain the “arms-length” principle, has influenced and limited free and genuine negotiations and undermined collective bargaining in the education sector. As a result, teachers at state schools, private schools and some adult education institutions are still subject to rigid regulation of their working hours. The complainants argue that public authorities should encourage free collective bargaining when they act as employers and have accepted responsibility to enter into agreements by co-signing them.
4. 30. Thirdly, the complainants indicate that even though Act No. 409 stipulates a possibility for the local parties to conclude agreements on working hours, the Ministry has again advised against concluding such agreements, which weakened the possibilities for organizations to influence agreements locally and undermined the entire bargaining model. According to the complainants, this demonstrates the Government’s need to retain the Act as the foundation for regulating teachers’ working hours, so that its amendment introducing more teaching hours can still be implemented using the same number of teachers.
5. 31. Fourthly, the complainants indicate that the Government established an Implementation Committee composed of representatives from the LGDK, the Modernization Agency, the Ministry of Economic and Business Affairs, the Ministry of Social Affairs and the Ministry of Education, aimed at ensuring that the Government’s reforms, including on working time, meet its goals. The complainants further argue that it is clearly stated that the Implementation Committee is to ensure that Act No. 409 is realized, which documents that the Government had a clear political goal with its 2013 intervention, which was not just an intervention to stop the conflict for societal reasons. The complainants also denounce that employer organizations are represented in the secretariat of the Implementation Committee, while the employees’ organizations are not, which demonstrates that the Government still has a practice of involving employers without involving employees’ organizations. In the complainant’s opinion, the Government has dismantled the Danish collective bargaining model and wrecked any possibility for concluding collective agreements for a large part of the public labour market.
6. 32. In its communication dated 24 September 2015, the Government replies to the complainants’ additional information and indicates in relation to the first point that it is aware that the DUT disagrees with the size of economic compensation as a result of the statutory intervention but that the statutory intervention did not intervene in the existing collective bargaining rights. It further states that as a result of the preceding industrial action the parties were no longer committed to the collective agreements and the standard model has been applied for estimating the value of changes to the collective agreements. Regarding the second point made by the complainants, the Government states that collective bargaining in the state sector area in 2014–15 was conducted within the usual framework and the final result of the collective bargaining negotiations (encompassing the renewal of the collective agreements), including a joint non-judicial declaration on working time conditions was approved by the employees’ organization on 10 April 2015. With regard to the complainants’ third point, the Government indicates that the collective agreements in the state sector area stipulate a general possibility for local parties to enter into agreements which supplement or deviate from the centrally agreed regulations on working time but that the Modernization Agency has, in its capacity as employers’ association for the state sector, advised local employers that for the education sector as well as for the rest of the state sector, it is not the intention that this possibility should be used to enter into local agreements that restrict the rights of the employers to allocate and manage the work of the employees. Regarding the fourth point, the Government states that it set up the Implementation Committee to ensure that the practical effects of the implementation of the comprehensive reforms of the primary and lower secondary schools and the vocational education and training, as well as the new working time regulations, fulfil the objectives set by the Government and the Parliament but that the Implementation Committee is not linked to the collective bargaining process.
7. 33. In relation to recommendation (a), the Government provides general information concerning the 2014–2015 collective bargaining in the state, municipality and regional sectors. It states that concerning the state sector, the Modernization Agency has informed that collective bargaining was conducted within the usual framework, which is agreed upon between the Modernization Agency and the Danish Central Federation of State Employees’ Organizations (CFU) ahead of each bargaining cycle, with the set-up usually being identical. The general agreement stipulates the termination of collective agreements and rules of industrial action. In relation to the 2014–15 collective bargaining in the state sector, the Government states that: exchange of demands and negotiations between the parties took place; general issues regarding terms of pay and employment were settled; the general agreement included projects of mutual interest and a renewal of terms of pay and employment for upper secondary teachers in the state education sector; secondary agreements of terms of pay and employment between the Modernization Agency and the individual employees’ organizations were completed by 9 March 2015; a secondary agreement between the Modernization Agency and employees’ organizations representing primary and lower secondary teachers in the state education sector included a renewal of terms of pay and employment, minor technical adjustments and a joint non-judicial declaration on working-time conditions; and the final result of the collective bargaining negotiations was approved by the employees’ organizations as of 10 April 2015. Concerning the municipality sector, the Government indicates that the Ministry of Employment does not participate in the proceedings of collective bargaining and since the LGDK is a private organization, the Ministry has no access to detailed information on the negotiations, which are closely followed by the media. With regard to the regional sector, the Government states that the Danish Regions are also a private organization and the Ministry of Employment has no access to detailed information on the negotiations. Concerning the 2014–15 collective bargaining in these two sectors, the Government indicates that: exchange of demands and negotiations between the parties took place; general issues regarding terms of pay and employment were settled; issues on pay and employment were settled between the LGDK and the Confederation of Teachers Union (municipality sector) and between the Danish Regions and the Confederation of Teachers Union (regional sector); the parties did not conclude a new working-time agreement but a declaration on working-time conditions was agreed upon; and the final result of the collective bargaining negotiations between the parties was approved for both sectors on 16 March 2015.
8. 34. In a communication dated 10 November 2015, the complainants provide additional information and claim that the Government’s information in reply to their communication dated 27 May 2015 is only a general description of the application of the Danish model of collective bargaining in the public labour market and a description of formalities in the negotiations and approval of the results agreed on by the parties but does not address the content of the negotiations. With regard to their first point, the complainants indicate that the Government’s reply is merely a repetition of its previous remarks, it does not address the concrete allegations and the Government refuses to account for the economic aspects of the statutory intervention. Concerning the Government’s reply to their second point, the complainants denounce that the Government did not address the main points they have raised concerning the collective bargaining in 2015 but has only mentioned the formal course of the negotiations and given a very general description of the agreement results. It further asserts that the Government had adopted the following attitude: as Act No. 409 on working hours in the education sector had been adopted, there was no intention to let the next round of collective bargaining (2014–15) change anything. According to the complainant, this attitude also meant that Local Government Denmark had no mandate to negotiate without the consent of the Ministry of Finance, which clearly restricts the real and free negotiations. With regard to the third point, the complainants assert that when legislation de facto authorizes the parties to an agreement to enter into local agreements regarding working hours, it should be left to the local parties to an agreement to decide how to apply this option. Consequently, the complainants allege that in the renewal of the collective agreement in 2015, the Government has failed to afford the negotiators the right to free negotiations and that the Government maintained that Act No. 409 was adopted with a purpose, which is still being pursued, and is apparent in the Implementation Committee. According to the complainants, the Government continues to supervise the implementation of Act No. 409 through the Implementation Committee without demonstrating any willingness to hand over the negotiations on the regulation of teachers’ working hours to the parties to the collective agreement and with its statements the Government has confirmed that the implementation of Act No. 409 has not been and will not be surrendered to the parties but will be retained by the Government in cooperation with employers’ representatives. Finally, the complainants indicate that because there is a desire to ensure that regulations on working hours meet the goals the Government has set in Act No. 409, it is clear that negotiations on working hours in the education sector are no longer an issue for the parties to the collective agreement.
9. 35. In a communication received on 2 March 2016, the Government indicates that it does not consider that the communication of the complainants dated 10 November 2015 calls for any further observations from the Government. Accordingly, the Government states that it does not have any further observations to add to those dated 24 September 2015.
10. 36. The Committee duly notes the detailed information provided by the complainants as well as the Government’s follow-up information and its reply to the complainants’ communication. With regard to the Committee’s recommendation to promote free and voluntary bargaining in the education sector in 2014–15, the Committee notes a divergence of views between the complainants and the Government. While the complainants allege that the Government became involved in the negotiations with the LGDK and advised employers against concluding local agreements on working hours, the Government claims that the 2014–15 collective bargaining was conducted in the usual framework and explains that the Modernization Agency can, in its capacity as employers’ association for the state sector, advise local employers not to enter into local collective agreements. Recalling that Act No. 409 stipulates a possibility to conclude local collective agreements on working hours, the Committee urges the Government to take the necessary measures to allow collective bargaining at the local level, including on working time. The Committee regrets that the Government does not reply to the serious allegations of its intervention in the LGDK negotiations and of its refusal to hand over negotiations on the regulation of teacher’s working hours to the parties to the collective agreement within the framework of the statute, and trusts that in all future collective bargaining rounds between the parties, the Government will endeavour to promote and give priority to free and voluntary good faith collective bargaining as the means of determining employment conditions in the education sector, including working time, and will ensure that the authorities refrain from any substantial intervention in such collective bargaining.
11. 37. With regard to the Committee’s recommendation to consult workers’ and employers’ organizations when introducing legislation affecting collective bargaining or conditions of employment, while noting that no further legislation had been drafted in this respect, the Committee notes with concern that the Implementation Committee, established by the Government to ensure the implementation of Act No. 409, is exclusively composed of the LGKD, the Modernization Agency and government representatives, whereas employees’ representatives are excluded. The Committee notes that the Government asserts that the Implementation Committee is not linked to the bargaining process but was set up to ensure that the practical effects of the implementation of the comprehensive reforms fulfil the objective set by the Government and the Parliament, without, however, indicating why representatives of employers’ organizations form part of the Implementation Committee while representatives of employees’ organizations may not participate in its activities. In this regard, the Committee wishes to refer to the Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113), Paragraph 1 of which provides that measures should be taken to promote effective consultation and cooperation between public authorities and employers’ and workers’ organizations without discrimination of any kind against these organizations. In accordance with Paragraph 5 of the Recommendation, such consultation should aim at ensuring that the public authorities seek the views, advice and assistance of these organizations, particularly in the preparation and implementation of laws and regulations affecting their interests [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006., para. 1068]. Accordingly, the Committee expects that the Government will take the necessary measures to ensure that workers’ organizations are consulted in relation to the implementation of Act No. 409 and in respect of other initiatives which affect their interests. The Committee requests the Government to keep it informed of any developments in this regard.