Rapport définitif - Rapport No. 119, 1970

Cas no 590 (Luxembourg) - Date de la plainte: 29-AVR. -69 - Clos

1. 33. The complaint of the Independent Union of Employed and Self-Employed Craftsmen (NHV) is contained in a communication dated 29 April 1969 addressed directly to the ILO. The complaint was communicated to the Government, which presented its observations in a letter dated 27 May 1969. By a communication dated 13 June 1969 the NHV provided supplementary information in support of its complaint. This information was brought to the attention of the Government, which presented its observations thereon in a communication dated 22 January 1970.
2. 34. Luxembourg 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. A. The complainants' allegations

1. 35. In its communication of 29 April 1969 the NHV alleges that although it is the sole independent organisation representative of the largest number of craftsmen organised in a union it has not been allowed to prepare claims for collective agreements in collaboration with the other unions.
2. 36. However, states the complainant, the relevant national legislation lays down that:
   • Only the industrial associations that are the most representative on the national scale may be parties to a collective labour agreement: Provided that individual employers or groups of employers may be parties to such an agreement.
   • All occupational groups having their own organisation and existing to represent their members and to defend the occupational interests and improve the living conditions of the latter shall be deemed to be industrial associations.
   • The most representative industrial associations shall be deemed to be those which are prominent by reason of their large membership, their activities and their independence.
3. 37. Considering that it is the most representative association for craftsmen and that it, moreover, corresponds to the conditions and definitions of the law, the NHV maintains that the refusal to allow it to prepare claims for collective agreements in collaboration with other unions is an infringement of the principle of freedom of association as laid down particularly in Convention No. 87.
4. 38. In its observations dated 27 May 1969 the Government states that it is the more surprised at the action of the complainant union because verification of the files shows " that no similar action of this organisation has at any time been brought to the attention of the Government."
5. 39. It is true, the Government continues, that the Act of 12 June 1965 respecting collective labour agreements regards as valid parties to a collective agreement only the industrial associations that are most representative on the national scale. The idea of representativeness at the level of the undertaking or of a given sector of economic activity has been set aside to avoid dispersing trade union activity in the field of collective bargaining. In view of the small size of the national territory, says the Government, this conception fully meets the country's particular conditions.
6. 40. The Government next stresses that collective bargaining by the workers is carried out through a trade union agreements committee which consists of representatives of the two big national unions, namely the National Federation of Luxembourg Workers and the Luxembourg Confederation of Christian Trade Unions. It its view nothing prevents the complainants from getting into touch with the trade union agreements committee so that they may be associated with collective bargaining in accordance with the conditions to be drawn up by the parties concerned.
7. 41. In conclusion the Government draws attention to the fact that the text of the Act of 12 June 1965 respecting collective labour agreements was communicated with its annual report on Convention No. 98, and that this Act has at no time given rise to criticisms on the part of the Committee of Experts on the Application of Conventions and Recommendations or the Conference Committee on this subject.
8. 42. In the supplementary information which it communicated on 13 June 1969 the complainant union states that there are three large unions in the Grand Duchy of Luxembourg, to wit the National Federation of Luxembourg Workers, the Luxembourg Confederation of Christian Trade Unions, and itself (the Independent Union of Employed and Self-Employed Craftsmen). Apart from these three big unions, it asserts, a number of occupational groups have got together to form unions to defend their purely occupational interests. Whereas these last, says the NHV, are in principle non-political like itself, the two first-named are connected with the three main political parties of the country, the first with the Socialist and Communist Parties, the second with the Christian Socialist Party. The leaders of these unions are, it avers, often at the same time members of parliament of the political parties in question.
9. 43. The complainant goes on to maintain that the smaller unions, based on purely occupational interests, have for many years reached collective agreements, each in its own field, with their respective employers. These are agreements reached with small- and medium sized firms.
10. 44. By contrast, the complainant asserts, the Government, on the basis of the first paragraph of section 2 of the Act, has refused the NHV any right to take part in negotiating a collective agreement. As the complainant sees it, the difficulty arises from the fact that the employed craftsmen who are members of the NHV have the status of workers just like all skilled and unskilled workers. The complainant feels that the Ministry of Labour therefore concludes that the NHV is not one of the most representative industrial associations on the national scale and disputes any right on its part to reach a collective agreement in the interests of craftsmen.
11. 45. In the complainant's view such an interpretation runs counter to the principle of freedom of association and is not in accordance with the wording of the text, according to which the defence of occupational interests is considered to be the true purpose of industrial associations formed on an occupational basis.
12. 46. The complainant suggests that the logical conclusion from the text of the Act should be that, if the members of a particular occupation succeed in grouping the majority of workers belonging to this occupation in a particular firm, the group should consequently be entitled to reach a collective agreement with the employer covering the members of this occupation. In the complainant's opinion the Ministry of Labour's interpretation of the Act excludes a priori the possibility considered above and amounts to systematically sacrificing the interests of the minorities.
13. 47. In its communication of 22 January 1970 the Government makes the following points. Under the terms of the second paragraph of section 2 of the Act of 12 June 1965 respecting collective labour agreements, all occupational groups having their own organisation and existing to represent their members and to defend the occupational interests and improve the living conditions of the latter are deemed to be industrial associations. Once an occupational group has fulfilled the structural and functional requirements of this definition, it can claim recognition as an industrial association. In this capacity it is entitled to all the prerogatives contained in Article 2 and Article 3, paragraph 1, of Convention No. 87, namely the right to establish itself without previous authorisation and the right to draw up its Constitution and rules, to elect its representatives in full freedom, to organise its administration and activities and to formulate its programme.
14. 48. The Government maintains that the liberalism surrounding the Constitution and operation of trade union organisations is highly conducive to trade union pluralism. The law, while fully maintaining the principle of freedom to establish and operate trade unions as embodied in Convention No. 87, has consequently considered it desirable to make reservations to the rule of strict equality of trade union organisations as regards their right to negotiate and to reach collective labour agreements.
15. 49. Indeed, the Government continues, the first paragraph of section 2 of the Act of 12 June 1965 respecting collective labour agreements states that only the industrial associations that are the most representative on the national scale may be parties to collective labour agreements. The third paragraph of the same provision determines the representative nature of an industrial association according to the following criteria: the size of its membership, its activities and its independence.
16. 50. The Government points out that the Luxembourg system of collective industrial relations does not encourage the formation of trade union bodies organised by occupational branch, economic sector or at plant level with a view to negotiating and reaching collective labour agreements.
17. 51. The Government also points to the fact that, according to the first paragraph of section 2 of the Act of 12 June 1965, only those industrial associations that are the most representative on the national scale may be parties to a collective labour agreement. By excluding from the collective determination of conditions of work those industrial associations which do not meet the requirement of being representative on the national scale, the national legislation discourages the forming of specialised unions such as craft unions and aims at minimising the disadvantages of undue splintering of the trade union effort in " a large number of rival factions ". The Government says that by refusing the legal capacity to reach collective labour agreements to trade union organisations whose activities are restricted to a single occupational branch, the law is seeking to check the harmful increase of trade union pluralism in a country characterised by the limited area of its territory and by the particular structure of its national economy.
18. 52. The Government asserts that this does not imply that the Luxembourg system of collective labour agreements constitutes an obstacle to the free Constitution and free operation of workers' trade union organisations. Although the law accords to those industrial associations which are the most representative on the national scale the prerogative to reach collective labour agreements, it does not seek to deny other organisations the rights embodied in Convention No. 87 and in particular the free exercise of their right to defend and further their interests.
19. 53. " In incorporating the idea of representativity into the national system of industrial relations ", says the Government, " the national legislation was far from innovating. It merely took up an idea which had long been approved by the International Labour Organisation ".
20. 54. The Government next states that, apart from the category of managerial staff for which provision is made in certain labour laws, Luxembourg law makes a fundamental distinction between manual workers and salaried employees in the private sector. This subdivision of employees could not fail to create duality in the respective status of manual workers and salaried employees, from the points of view both of working conditions and of social security. This is why the Act of 12 June 1965 respecting collective labour agreements had to provide for a single agreement in each undertaking or each division of an undertaking for the entire staff of manual workers and for a single agreement for the entire staff of salaried employees, it being nevertheless understood that the industrial associations most representative on the national scale were the bodies legally entitled to negotiate and reach agreements.
21. 55. Now it is obvious, declares the Government, that the complainant union, by styling itself a " union of employed and self-employed craftsmen ", intends on its own initiative to create an occupational category of employee which is not recognised by the law, in order to confer representative status on its organisation on the national scale.
22. 56. The Government categorically denies the allegation of the complainant union according to which " smaller unions, based on purely occupational interests have reached collective labour agreements, each in its own field " (see paragraph 43 above). " The Government of the Grand Duchy has no knowledge ", it declares, " that under the Act of 12 June 1965 collective labour agreements have been reached by trade unions organised on the basis of occupational branches, economic sectors or at plant level. Such agreements, even if they had been reached, would have been refused registration by the competent authority, this being an essential condition of their implementation."
23. 57. In reply to direct requests of the Committee the Government and the complainant union provided additional information on the complaint in two communications dated 6 April and 14 March 1970 respectively. The Government states that the National Union of Luxembourg Workers has 21,000 members, whereas the Luxembourg Confederation of Christian Trade Unions has 15,000. The complainant union states that, with a membership of 3,000, it is by far the most representative on the national scale as regards membership of qualified craftsmen and journeymen and that the figure of 3,000 should only be used for the purposes of comparison if the other unions supply membership figures for craftsmen and journeymen alone.
24. 58. In examining this case the Committee considers that it must take into account a number of circumstances, some of which are of a very particular nature.

B. B. The Committee's conclusions

1. 59. The Committee notes that by virtue of Article 4 of Convention No. 98 governments shall take measures appropriate to national conditions to encourage and promote voluntary collective negotiation. In this connection the Committee has always accepted that, for the purposes of collective bargaining, a distinction may be drawn between the most representative organisations and all others, acknowledging that the former may have preferential negotiating rights, including as regards the conclusion of collective agreements. In so doing, however, the Committee has insisted on the necessity of having objective standards for deciding on the representativity of organisations, and that one of the most important of these criteria should be the number of members. In the present case, in view of the particular conditions prevailing in Luxembourg, notably as regards the small size of the country, the Government of the Grand Duchy accords the right to negotiate to those organisations which are most representative at the national level, and to them alone.
2. 60. The Committee observes from the figures supplied by the Government and the complainants that the two national unions legally entitled to engage in collective bargaining, i.e. the National Federation of Luxembourg Workers and the Luxembourg Confederation of Christian Trade Unions are vastly more representative of Luxembourg workers in general than the Independent Union of Employed and Self-Employed Craftsmen.
3. 61. Nonetheless, the Committee also takes due note of the complainant's statement (which the Government did not contest), that the Independent Union of Employed and Self-Employed Craftsmen is the organisation most representative of the category of workers qualified as " craftsmen " in the complaint. This category of workers is, however, not recognised by the law as a special category for the purposes of independent collective bargaining. Thus, while the Union enjoys a legal existence at the national level, it does not appear to have sufficient legal capacity for concluding separate collective agreements on behalf of its members.
4. 62. In this context the Committee wishes to recall the statement made by the Government (see paragraph 40 above) according to which nothing prevents the complainants from getting in touch with the trade union committee established for the purposes of collective bargaining, so that the Union may be associated with the bargaining process in accordance with the conditions to be established by the parties concerned.

The Committee's recommendations

1. 63. In all these circumstances the Committee considers that although the Government, in the light of national conditions, has restricted the right to engage in collective bargaining to the two most representative national unions of workers in general, this should not prevent a union representing the majority of workers of a certain category from furthering the interests of its members. The Committee therefore recommends the Governing Body to request the Government to examine the measures which it might take under national conditions in order to afford the Independent Union of Employed and Self-Employed Craftsmen the possibility of being associated with the collective bargaining process so as to permit it adequately to represent and defend the collective interests of its members.