REPRESENTATION (article 24) - NORWAY - C111 - 1983

1. Norwegian federation of Trade Unions (LO)

Closed

Report of the committee set up to examine the representation presented by the Norwegian Federation of Trade Unions (LO) under article 24 of the Constitution alleging non-observance of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) by Norway

Decision

1. The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

1. Introduction
2. 1. By a letter of 3 June 1982, the Norwegian Federation of Trade Unions (LO) made a representation, under article 24 of the Constitution of the International Labour Organisation, alleging non-observance by the Government of Norway of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).
3. 2. The Discrimination (Employment and Occupation) Convention, 1958 (Do. 111) was ratified by Norway on 24 September 1959. It came into force in that country one year thereafter, on 24 September 1960.
4. 3. The provisions of the Constitution of the International Labour Organisation concerning the submission of representations are the following:
5. Article 24
6. In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
7. Article 25
8. If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
9. 4. The procedure for the submission of representations is governed by the revised Standing Orders adopted by the Governing Body at its 212th Session in March 1980. (Endnote_1)
10. 5. Under article 2, paragraphs 1 and 2, of these standing Orders, the Director-General brought the representation and all the items of information in his possession regarding its receivability before the Governing Body.
11. 6. At its 220th Session (May-June 1982) the Governing Body examined the question of the receivability of the representation and considered that it fulfilled the formal conditions provided in article 2 of the Standing Orders. It then decided to appoint the Committee provided for in article 3, paragraph 1s of the Standing Orders, in accordance with the-recommendations of its Officers in a report submitted to it at that same session. (Endnote_2) This Committee consisted of Mr. Barry J. Watchorn (Government member, Australia), Chairman, Mr. Albert Verschueren (Employer member) and Mr. Heribert Maier (Worker member).
12. 7. Immediately after being appointed, the Committee met in Geneva on 23 June 1982. It decided under article 4, paragraph 1, subparagraph (a), of the Standing Orders: (a) to invite the L0 to submit, before 15 August 1982, any additional information it wished to bring to the attention of the Committee; (b) to invite the Government to submit its observations regarding the representation before 31 August 1982, it being understood that any additional information received from the LO would also be communicated to the Government.
13. 8. The Government submitted its observations on the allegations in a communication of 1 October 1982. Subsequently, the Committee held further meetings in Geneva on 18 November 1982 and 22 February 1983.
14. Examination of the representation and of the reply received
15. Allegations
16. 9. The Norwegian Federation of Trade Unions (LO) alleges that the Government of Norway has failed to fulfil the obligations incumbent on it by virtue of its ratification of the Discrimination (Employment and Occupation) Convention, 1958 (No, 111) and in particular under Article 1, paragraph 2, which provides that any distinctions, exclusions or preferences in respect of a particular job based on the inherent requirements thereof, shall not be deemed to be discrimination.
17. 10. The LO considers that the non-observance by Norway of its obligations is as a result of the amendment made to section 55A of the Worker Protection and Working Environment Act (Act No. 4 of 4 February 1977) by Act No. 22 of 14 May 1982 which came into operation the same day. Section 55A now reads as follows: The employers may not demand when advertising vacant situations or in any other way, that applicants supply information concerning their political religious or cultural views or whether they are members of any labour organisations. Neither may the employer effect measures to obtain such information by other means. These provisions are not applicable when such information is required owing to the nature of the situation or where the activity of the employer, has as an objective, the advancement of specific political, religious or cultural views and the position is of significance for the accomplishment of the objective. In cases where such information is demanded, this must be specified when advertising the position.
18. 11. In support of its claim that the Norwegian Government has infringed Article 1, paragraph 2 of Convention No. 111, the LO maintains that the exception clause in section 55A gives the employer the right to demand information regarding the applicant's beliefs and attitudes to political, religious or cultural questions in situations other than where such information is based on the nature of the position.
19. 12. The LO recalls that in the Parliamentary debate on the amendments to the exceptions in section 55A, it was confirmed by both the Government and a majority of the House that, for example, in institutions with a Christian objective, the administration of such institutions would have a right to demand information of applicants regarding their Christian faith, even if the applications applied to positions as cleaners, kitchen assistants, caretakers, etc.
20. 13. The LO adds that such a form of discrimination in the case of ordinary employees in ordinary positions is not only a clear contravention of Convention No. 111, but that this form of discrimination will, in practice, affect employees in major spheres of their working lives. In the view of the LO, the exception clause in section 55A provides employers within all activities involving some form of belief or the like, with a legal right to exclude all employees who do not meet the demands as to the right belief or the like, even if the positions referred to have no bearing whatsoever on the accomplishment and/or exercise of the belief the activity or institution represents.
21. The Government's observations
22. 14. In its communication of 1 October 1982 the Government rejects the allegation that section 55A in Act No. 4 of 4 February 1977, latest amended by Act No. 22 of 14 May 1982, conflicts with Article 1, paragraph 2 of Convention No. 111.
23. 15. The Government states that Act No. 22 of 14 May 1982 was introduced with the purpose of removing all reasonable doubt that, among others, religious organisations should be able to carry on their activities fully in accordance with their purposes. According to the Government's comments, considerable disquiet among the Christian organisations and institutions greeted both the interpretation of section 55A as it was originally worded when the 1977 Act came into force and the subsequent amendment of Section 55A in 1980.
24. 16. The Government points out that the attention given to section 55A and the frequent amendments thereto should be viewed in the light of the central position occupied by the voluntary religious and cultural organisations in Norway and in the Norwegian democracy. These organisations are involved in a number of fields - publishing of books and newspapers and magazines, study programmes and camp activities, information campaigns, child and youth work. They are also involved in running basic schools, vocational training schools, peoples1 colleges (folk high schools), hospitals, institutions for care of alcoholics, kindergartens, orphanages, etc. The Government points out that as part of their appointments policy, these organisations employ both staff who share and staff who do not share the organisations' ideology.
25. 17. The Government asserts that at the preparatory stage and in the actual formulation of the legislation, the Norwegian authorities attached importance to maintaining compatibility with Convention No. 111. In support of its contention that the legislation is consistent with the prohibition of discrimination in Convention No. 111, the Government states that it is possible for an employer to obtain information on an applicant's political, religious or cultural views or membership of a trade union only when it is necessary in terms of the inherent requirement of the job in question.
26. 18. In this regard, the Government refers to the recommendation from the Ministry of Municipal Affairs and Labour of 22 January 1982 - Odelsting Bill No. 30 (1981-82) - to amend the Act of 4 February 1977 (No. 4):
27. In the first alternative the discretionary area in the proposed exception clause is linked to the more specific limitations of the expression "nature of the post". The Ministry believes that this expression must be assessed in the light of the establishment's general objective, which means that the expression cannot be isolated from its context. Generally speaking, the same must also be true of the provision's second alternative. What is proposed here is that the exception clause should apply if the objective of the establishment of the employer concerned includes the promotion of certain political, religious or cultural views and the post is relevant to the attainment of the objective. This means that the right to ask about any applicant's political or religious views, etc., will apply generally to the extent that the specific post is relevant to the attainment of the establishment's objective. The establishment's precise objective and aim will normally be common knowledge and be apparent from articles of association, regulations, instructions, customary practice, etc.
28. The management (or board of directors) of the establishment should itself appraise and decide what the objective of the establishment is and whether a post is relevant to the attainment of the objective. The management (or board of directors) - or the persons represented on such body - will be best acquainted with the establishment from within and will know precisely which duties in the establishment the individual post will involve. Those persons will thus be the most appropriate and the best qualified to assess whether the exception clause should apply. In smaller organisations or institutions, e.g. those with 10 to 15 employees, the management (or board of directors) may, after a specific assessment, regard all posts in the establishment as relevant to the attainment of the establishment's objective. It will not, therefore, be possible to differentiate between the different post categories, since it must normally be a primary aim of all employees to work in accordance with the organisation's or the institution's objective and aims. In other establishments with a much larger workforce it will be possible to affirm that a particular post, e.g. that of a part-time kitchen assistant, is one which in concrete terms is irrelevant to the attainment of the establishment's objective.
29. The Ministry sees no cause for closer examination of these questions. What has already been said is merely intended to emphasise that the Bill cannot be understood to mean that all posts in ideological organisations are covered by the proposed exceptions without further assessment of the relevance of each particular post to the attainment of the establishment's objective.
30. 19. As an example of an organisation where the management might consider it necessary for all employees (teachers, matrons, caretakers, administrative assistants, cooks, kitchen assistants and cleaning assistants) to share the ideological beliefs of the institution, the Government refers to a Christian folk high school where the pupils are boarders. The Government suggests that in such a situation it would be important for the school to create a team which embodies unity and totality in the endeavour to attain the school's goal.
31. The Committee's conclusions
32. 20. The Committee notes that the question raised by the representation concerns the compatibility between Article 1, paragraph 2 of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) and Act No. 22 of 14 May 1982 concerning amendments to section 55A in the Act of 4 February 1977 (No. 4) relating to worker protection and working environment.
33. 21. The Committee considers it useful firstly to recall the scope of Article 1, paragraph 2 of the Convention, account being taken also of the relevant indications given in the preparatory work on the Convention and by the Committee of Experts on the Application of Conventions and Recommendations. Article 1, paragraph 2 of the Discrimination (Employment and Occupation) Convention states:
34. Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination.
35. 22. In the work preparatory to the adoption of the 1958 instruments, some amendments were submitted with the purpose of making it (Endnote_3) "clear that distinctions determined by the inherent requirement of the job were not to be considered as adverse discrimination... Their purpose was to cover cases where, to match the needs of the job, an employer justifiably took into consideration factors such as national extraction, sex or religion". At the same time the Conference Committee rejected a subamendment, submitted by the Employers' members, to insert after the words "inherent requirements of the job", the words "or the particular circumstances under which the job is being performed".
36. 23. The Committee of Experts explained the meaning of Article 1, paragraph 2 of the Convention in a general survey of 1963 (Endnote_4) by stating that "... it is a question of determining in which cases a criterion such as race, colour, sex, religion, political opinion or social origin might justifiably be taken as an inherent requirement of a particular job, thereby not giving rise to discrimination within the meaning of the Convention and the Recommendation. It is indeed only in such cases that, in considering the inherent requirements of a job, the problem arises of where to draw the line between what is and what is not discriminatory. It is clear from the preparatory work on the Convention that it was indeed to meet such cases that the provision in question was included in the instrument".
37. 24. On the question of specific exclusions which could come within the scope of Article 1, paragraph 2 of the Convention, the Committee of Experts, stated that it was aware, for example, that "political opinions may be taken into account in connection with the requirements of certain senior administrative posts involving special responsibility in the implementation of government policy, but that if it were carried beyond certain limits, this practice could involve a conflict with the provisions of the Convention".(Endnote_5)
38. 25. In considering the compatibility of the exception clause in section 55A with Article 1, paragraph 2 of the Convention, the Committee notes the Government's assertion that the "question whether the Act leads in practice to results which are in "conflict with the Convention will only ... be confirmed after a concrete interpretation in a specific case."
39. 26. The Committee further notes, however, that the Government has already given some indication of the way in which section 55A may be implemented. In the general text of the Government's comments on the representation and in the recommendation from the Ministry of Municipal Affairs and Labour to the Odelsting, a number of, circumstances are cited where applicants for all posts in an institution might be asked justifiably about their political, religious or cultural views. The Government emphasises that such posts could not come within the exception clause in section 55A though, without there having been a detailed assessment of the importance of the specific post for the accomplishment of the undertaking's purpose.
40. 27. In this respect, the Committee notes that the criterion to be employed by an institution in assessing whether a position is an "ideological" one or not, is the significance or importance of the job to the purpose of the undertaking. In the examples posed by the Government as to how section 55A could be interpreted in some institutions (see paragraph 19 above), the question of significance of the job for the organisation's objective is given a very broad scope. It would appear to the Committee that the element of "significance" of some posts relates to the actual functioning of the organisation rather than to the accomplishment of its objectives. The Committee considers that, as stated here, the test to be applied by the institution goes beyond that which can be applied under Article 1, paragraph 2 of the Convention. In the view of the Committee, the original wording of section 55A introduced in 1977, which forms the first alternative exception in the present draft of section 55A, viz. "These provisions are not applicable when such information is required owing to the nature of the post" is consistent with Article 1, paragraph 2 of the Convention. Indeed, the interpretation of section 55A provided in the Storting on 1 March 1978 by the then Minister of Local Government and Labour accords with the interpretation to be given to Article 1, paragraph 2 of the Convention. The Minister said in regard to advertisements for Christian kindergarten and private school teachers that "information on one's views on life, etc., could only be required of personnel who are to teach the philosophy of life in question".
41. 28. However, the Committee has had an opportunity to examine a case concerning the practical application of the 1977 version of section 55A. The case concerned legal action brought by, amongst others, the Norwegian Union of Civil Service Employees against the Board of a Christian College for the training of social workers (Diasos), on the grounds that the personnel policy guidelines adopted in 1979 by the board of directors of the College were not in accordance with section 55A of the Working Environment Act, 1977. The policy guidelines in question provided that applicants for posts as administrative director, as teachers or as research workers must be asked whether they shared the Christian faith, and that their attitude to the Christian faith should be amongst the factors to be taken into account in the filling of the posts in question. Considering, inter alia, that it was difficult to conceive of a Christian school in which the majority of teachers did not share basic Christian beliefs, the Oslo District Court held that - except as regards the post of administrative director - the policy guidelines in question did not contravene either section 55A of the Working Environment Act or Convention No. 111. The Committee is not faced with the task of commenting on the outcome of this case except that the judgment is instructive in indicating the way in which section 55A has been applied in practice. In this connection, it appears that the Court has accepted that job applicants may be questioned about their religious views even where the positions for which they are applying are secular positions in an institution with a particular religious view. The examples provided by the Government as to how it would envisage the present draft of section 55A being interpreted, and the Oslo District Court's interpretation of the 1977 draft of section 55A seem to the Committee to indicate that exceptions could be permitted to the general prohibition of discrimination in employment which could be wider than those permitted by the Convention. The Committee would, also express concern as to whether such indications might at some time develop into practices which are contrary to Article 2 of the Convention, which calls on ratifying member States to "... pursue a national policy designed to promote ... equality of opportunity and treatment... with a view to eliminating any discrimination ...". This concern is relevant particularly to educational institutions which are faced with a primary task of preparing students for employment. Where educational institutions themselves give an undue emphasis to religious beliefs in their staffing policy, the greater may become the tendency of a society to evolve discriminatory employment practices.
42. 29. The Committee considers that in order to satisfy Article 1, paragraph 2 of Convention No. 111, regard must be had to the actual duties of the job in question and when necessary, to the direct bearing of these duties on the institution's objectives. Naturally, the fact that an organisation has a particular ideology will be a reason for it to require that certain posts should be held by persons of that same ideology. In order to maintain consistency with the Convention, however, the responsibilities of such posts must be related directly to the pursuance or furtherance of the institution's objective. As a corollary, the Committee would suggest that in certain organisations, a consideration of the "inherent requirements of the job" may involve such questions as whether there would be a risk that the pursuit of the institution's objective would be frustrated, undermined or harmed by employing someone in a particular post who did not share the ideological views of the organisation. It is clear from the views expressed by the Committee of Experts, however, that distinctions made in these circumstances could only be justified under the Convention where the job itself carried special responsibilities.
43. 30. The Committee notes the Government's statement that ideological organisations in Norway employ persons who share and persons who do not share the organisation's view of life, and both the Government and the majority in the Standing Committee of the Storting are confident that these organisations will continue this recruitment policy. The Committee is nevertheless concerned to clarify the precise scope of the Convention.
44. 31. The Committee notes the Government's assurance that Norway's international legal commitments are given great weight in interpreting the legislation; and that the enforcing authorities and the courts of law will consequently attach due importance to the ILO Convention when applying the exception clause in section 55A in an individual case. Further, the Government maintains that the Act will be interpreted in accordance with Convention No. 111 in case of doubt.
45. The Committee's recommendations
46. 32. The Committee recommends the Governing Body -
47. (a) to approve this report, and in particular the following conclusions:
48. (i) In determining any distinctions, exclusions or preferences as permitted under Article V, paragraph 2, of Convention No. 111, regard must be had only to the inherent requirements of a given job, i.e. to the actual duties of the job in question and, when necessarys to the direct bearing of these duties on the institution's objectives. In its present wording, Act No. 22 of 1982 which amends section 55A of the Worker Protection and Working Environnment Act (Act No. 4 of 4 February 1977) appears to be drafted in such a way that its exception clause could be applied in respect of jobs that do not by their nature carry with them a special responsibility to contribute to the attainment of the institution's objectives;
49. (ii) in these circumstances, measures should be taken to ensure that the section in question is worded, interpreted and applied in such a manner as to be in conformity with Article 1, paragraph 2, of the Convention;
50. (iii) the Government should inform the ILO of all measures taken to this end, so as to enable the Committee of Experts on the Application of Conventions and Recommendations to follow developments regarding this aspect of the case;
51. (iv) the Government should also indicate in its reports on the application of Convention No. 111, the manner in which the legislation is being implemented, and should include in its reports, copies of any relevant administrative instructions or court decisions pertinent to the matter;
52. (b) to declare the closure of the current procedure initiated following a representation submitted by the Norwegian Federation of Trade Unions (LO) concerning the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) by the Government of Norway.
53. Geneva, 22 February 1983.
54. (Signed) B.J. Watchorn, Chairman.
55. A. Verschueren.
56. H. Maier.
57. Endnote 1
58. Official Bulletin, Vol. LXIV, 1981, Series A, No. 1, pp. 92-95.
59. Endnote 2
60. GB.220/16/28.
61. Endnote 3
62. 1 ILO: Record of Proceedings, International Labour Conference, 40th Session, Geneva, 1957 (Geneva, 1958), Appendix X: Report of the Committee on Discrimination, para. 25, p. 743).
63. Endnote 4
64. ILO: Report of the Committee of Experts on the Applications of Conventions and Recommendations, Report III (IV), International Labour Conference, 47th Session, Geneva, 1963, p. 191.
65. Endnote 5
66. loc. cit., p. 192.