Rapport définitif - Rapport No. 306, Mars 1997

Cas no 1882 (Danemark) - Date de la plainte: 10-MAI -96 - Clos

Allegations: Statutory extension of collective agreements and legislative interference in industrial action in the hospital sector

1. 369. The Danish Nurses' Organization (DNO) submitted a complaint of violations of trade union rights against the Government of Denmark in communications dated 10 May and 17 June 1996 and 3 February 1997.
2. 370. The Government sent its observations on this case in a communication dated 6 September 1996.
3. 371. Denmark 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. The complainant's allegations

1. 372. In its communication of 10 May 1996, the Danish Nurses' Organization (DNO) indicates that the complaint concerns the Government's proposal on 23 May 1995 of an "Act on extension and renewal of employment contracts and agreements for nurses, radiographers, paediatric district nurses, district nurses, hospital laboratory assistants, etc." passed by the Danish Parliament on 24 May 1995 (Act No. 330/1995) (a copy of the Act is attached as Appendix I). According to the complainant, the Act which was proposed and adopted without any previous consultation with the DNO, provided that all collective agreements between the relevant public employers (i.e. the Association of County Councils in Denmark, the National Association of Local Authorities, the Municipality of Copenhagen, the Municipality of Frederiksberg, the Copenhagen Hospital Corporation, and the Ministry of Finance) on the one hand and the DNO on the other should be renewed or extended until 31 March 1997 on the same general terms and conditions that had already been agreed upon between the parties to collective agreements in other fields of the public sector in Denmark.
2. 373. In addition, the Act provided for creating a committee consisting of representatives of the parties to the nursing agreements in order to analyse a number of questions regarding wages and working conditions for nurses upon which the parties had been unable to reach agreement in their previous negotiations. The Committee was to conclude its work before 1 October 1995 and could only make proposals for further agreements within a very limited economic framework. After this, the parties to the agreements were given a further 30 days' period to negotiate amendments to the already renewed or extended agreements based on the proposals of the Committee. Any issues still outstanding after this final round of negotiations would then be submitted to compulsory arbitration by an umpire, who had also served as the impartial chairperson of the Committee. The award of the umpire was given on 10 November 1995.
3. 374. The Act was proposed and adopted in order to stop an ongoing legal strike by the DNO in a limited number of specifically designated wards of certain public hospitals as well as in a limited number of primary health-care institutions. Agreements to maintain emergency and vital services at all times had been negotiated with the employers and were in force in all areas affected by the strike.
4. 375. Public hospitals in Denmark employ approximately 25,000 nurses in positions covered by collective agreements. Of these, only 2,175 were covered by the strike declared by DNO which became effective on 1 May 1995. In response, the Copenhagen Hospital Corporation locked out 570 nurses, and the Association of County Councils notified a lockout of approximately 4,500 nurses but later withdrew its notice in respect of approximately 1,000 of these nurses. Thus, at the time of the intervention, the industrial actions in the hospitals comprised 2,175 striking nurses and approximately 4,000 locked-out nurses.
5. 376. Approximately 11,000 nurses were employed under collective agreements in the primary health care sector. The strike actually affected 1,300 of these nurses. However, the National Association of Local Authorities, the Municipality of Copenhagen and the Municipality of Frederiksberg gave notice of lockout against an additional 6,500 nurses to become effective as per 1 June 1995. However, the Act put an end to all industrial action as from 27 May 1995.
6. 377. First and foremost, the DNO contends that Act No. 330/1995 is an infringement of the nurses' right to free collective bargaining as provided under Convention No. 98. The Act has imposed upon the nurses a renewal or extension of their agreements for a two-year period on general terms and conditions which, although accepted by other labour unions, were known by the Government to have been clearly and repeatedly rejected by the DNO. The DNO considers that the regime imposed in the Act for Committee analysis and proposals regarding the specific issues relevant for the nursing profession and the subsequent negotiations and compulsory arbitration of these issues bears little resemblance to voluntary collective bargaining.
7. 378. Secondly, the DNO holds that the adoption of the Act constituted a violation of the nurses right to strike. The DNO does recognize that limitations may be imposed on that right in certain essential undertakings or services such as the health-care sector. At the time when the strike was terminated through legislative intervention, however, it had lasted less than a month and had in no way created a situation which could endanger the life, personal safety or health of the whole or part of the population. The legislative intervention was caused not but rather by the prospect of the probable disturbances which might be created by the much broader lockout notified by the National Association of Local Authorities for 1 June 1995 in the primary health-care sector. Bearing in mind the close link between the public employers and the Government, the DNO questions whether this type of industrial action from public employers can reasonably justify a government intervention in the right of workers to carry out a lawfully established strike.
8. 379. In its communication of 17 June 1996, the DNO indicates that it has 66,600 members and covers more than 95 per cent of all active nurses in the country. The complainant explains that as from 1969 the DNO's right to bargain collectively on behalf of its members was backed by the right to take industrial action in support of its claims.
9. 380. The DNO took advantage of this new legal situation, and negotiated collective agreements with the public employers at the state, county and municipal level. The basic wage level of the different categories of public employees had, however, been de facto fixed by a government-appointed commission and could not be significantly altered. For registered nurses this level corresponded to that of a publicly employed skilled worker.
10. 381. In addition to these agreements on wages and working conditions, the DNO also concluded General Agreements ("hovedaftaler") with the employers in accordance with common practice in the Danish labour market. Such General Agreements regulate, among other things, the right to strike or take other industrial action.
11. 382. The General Agreement between the Association of County Councils in Denmark, the Copenhagen Hospital Authority and the (then) Ministry of Government Wages and Pensions on the one side and the Danish Nurses' Organization and the Municipal Nurses' Organization of Copenhagen on the other side regarding salaried nurses and hourly paid nurses of 17 September 1971 contains the following provisions in this respect:
12. Section 5. The parties recognize each other's rights to give notice of and employment work stoppages according to the rules below.
13. ...
14. Clause 5. The work stoppage cannot include members which the parties by agreement decide to except from the right to give notice of and implement work stoppages.
15. Clause 6. A strike, lockout, blockage or boycott is considered a work stoppage.
16. 383. Section 5, clause 5, was further limited by the following protocol: "The parties are in agreement that if the case should arise, an agreement must be reached which will as a minimum safeguard the necessary staffing in all areas affected by the work stoppage."
17. 384. The DNO describes previous instances where strike and lockout were used, but where the parties managed to reach a settlement without industrial action.
18. 385. The DNO's claims for the 1995 negotiations were related to the growing dissatisfaction among its members in respect of their wages and working conditions. This paramount claim of the DNO had been made abundantly clear to the public employers for a very long time, both through official channels and in an intensive public debate inspired by a massive publicity campaign initiated by the DNO in the fall of 1994.
19. 386. In February and March 1995 the DNO gave notice at the county, local and city levels of work stoppages as of 1 April and 1 May 1995 covering a total of 3,450 nurses and 25 X-ray operators.
20. 387. Shortly after the DNO had given its notices, negotiations were initiated with the respective employers and agreements were concluded to ensure the necessary staff to maintain emergency and vital services in all areas to be affected by the strikes.
21. 388. In March 1995, the association of county, local and national levels gave notice of a lockout as per 1 May 1995 affecting 4,500 nurses in a total of 285 wards at 60 different hospitals. The lockout affected chiefly surgical bed wards, anaesthetic wards and out-patients' clinics.
22. 389. The subsequent negotiations to maintain emergency staffing revealed that the actual everyday staff on a number of these wards and clinics did not exceed what must be considered a safe minimum standard. Thus the Association of County Councils in Denmark already at this early stage was forced to withdraw their notice of lockout in respect of a number of understaffed wards.
23. 390. On 27 April 1995 the National Association of Local Authorities gave notice of a massive lockout by 1 June 1995, affecting all ordinary nurses in health-care functions in the 246 municipalities not covered by the strike notice of the DNO.
24. 391. Prior to this lockout notice, the national Association of Local Authorities had decided to apply the principle that no municipality could be excepted from the lockout. This made negotiations for emergency agreements difficult. In spite of this policy on the part of the employers, a total of 18 joint operation schemes and home-care services, 68 nursing homes and two health visitor plans eventually were excepted in the 243 municipalities, for which agreements were reached before 24 May 1995.
25. 392. The Municipality of Copenhagen gave notice of a lockout to become effective as per 1 June 1995 for home nurses on day or evening duty at all social centres not touched by the DNO strike notice. The lockout notice further covered all health visitors as well as all nurses working at nursing homes or special dwellings in Copenhagen. The Municipality of Frederiksberg also served a lockout notice for 1 June 1995 covering all home nurses and health visitors plus nurses working at three nursing homes.
26. 393. Finally, the Copenhagen Hospital Corporation gave notice of a lockout as per 1 June 1995 for all nurses employed in wards that were connected with wards affected by the strike.
27. 394. After the conflict had been stayed by the Public Conciliator for a total of one month, the strikes and lockouts that had been noticed for 1 April 1995 and 1 May 1995 finally became effective on the latter of these dates.
28. 395. According to the complainant, the emergency services in the wards hit by DNO's strike functioned without major problems in accordance with the general and local agreements. In contrast to this, the lockout notice from the Association of County Councils in Denmark were very soon proved to have been excessive, and already on the second day of the conflict talks of reduction were initiated. The result of these negotiations was that 59 of the locked-out wards/clinics and parts of another then wards/clinics employing 1,022 nurses were excepted from the lockout and restored to full service.
29. 396. In the written general remarks of the Bill which was to become Act No. 330, it is merely stated that the conflict included some 7,000 nurses, that it had lasted for more than three weeks without any signs of the parties getting closer and that the Government feared that the health and safety of the population would be threatened by a continuation of the conflict. The remarks further made reference to growing waiting lists in the hospitals.
30. 397. As the final reason making an immediate intervention necessary, the Government made reference to the planned escalation of the conflict by 1 June "when also home nurses in municipalities not yet struck by the conflict will be included in the conflict". The Government expressed fear that this may have serious consequences for many old and sick people in spite of possible emergency arrangements. No mention was made of the fact that this escalation was solely due to the lockouts declared by the public employers.
31. 398. The complainant emphasizes that the anxieties expressed by the Government were in no way substantiated and that the legislative action, therefore, was of an entirely pre-emptive nature.
32. 399. The Government made no attempt to get the parties to resume negotiations nor did the Government make any effort to persuade the employers to adopt a more responsible attitude.
33. 400. In summary, it is the view of the DNO that the Act was unnecessary or at least premature, that the Government made no attempt to explore alternate solutions through consultations with the DNO or otherwise, and that the Government both directly and indirectly had a marked interest in solving the dispute in favour of the employers, which is clearly reflected in the contents of the Act.
34. 401. The Act instituted a compulsory extension or renewal of the terms and conditions that had previously been agreed upon between the bargaining coalitions of the public employee organizations on the one side and the public employers and their negotiators on the other in the respective areas where nurses were employed even though the DNO had expressly rejected this result in February and March 1995.
35. 402. In section 3, clause 5, the Act opened the possibility of further wages increases. However, these were limited to 1.12 per cent for nurses employed under agreements with the Ministry of Finance or the counties or the local authorities. In hospitals run by the Copenhagen Hospital Corporation the limit was 1.29 per cent. These additional percentages were exactly equal to the wage increases which the bargaining coalitions had left for the individual unions to mete out in detail to their members. The Act provided that any wage increase over and above this had to be financed by the nurses themselves through improvement and efficiency, rationalizations, etc.
36. 403. The limits would similarly apply to the subsequent round of bargaining which was to take place during October 1995 and to the award of the umpire regarding unresolved issues.
37. 404. Thus, in summary the Act in economic terms entailed that the DNO was legally barred from obtaining any wage increase over and above that which had been the outcome of the settlement accepted by groups which had not taken industrial action. This limit could not be exceeded even if the public employer were to agree.
38. 405. Furthermore, the compulsory arbitration of all outstanding issues provided for in the Act had the effect that neither party could make any concessions, both sides preferring to let the umpire make the decisions. According to the complainant, the Act gave the public employers the right to buy anything they wanted, provided only that they would pay a price considered fair by the umpire.
39. 406. The umpire handed down her award on 10 November 1995. In a brief introductory remark the Umpire emphasized that in making her decision she had put particular emphasis on the possibilities to bring about added flexibility and better utilization of resources, including the possibility to increase the number of hours that nurses must be present at the working place. The umpire expressly underlined that it was outside her competence to make any decision in respect of the general wage level of the nurses.
40. 407. In conclusion, the complainant states that the Government has infringed its right to free collective bargaining by sponsoring and supporting the Bill which was adopted as Act No. 330/1995, thus violating Conventions Nos. 87 and 98.
41. 408. Finally, the complainant argues that the adoption of the Act constituted a violation of the nurses' right to strike. The legal intervention came at a time when there were no compelling grounds to stop the industrial dispute and the grounds used for intervention were partly fictitious, partly the result of obvious manipulations on the part of the employers with whom the Government has strong ties at all levels.
42. 409. In its communication of 3 February 1997, the complainant submits a certain number of observations with respect to the information provided in the Government's reply which further emphasize the argumentation maintained in its initial complaint.
43. B. The Government's reply
44. 410. In a communication dated 6 September 1996, the Government of Denmark admits that the Danish Parliament passed an Act on 24 May 1995 in order to stop a lawful strike which had been running for 23 days between the Danish Nurses' Organization on the one side, and the Association of Local Authorities, the Association of County Councils in Denmark, the Ministry of Finance, the Municipality of Copenhagen, the Municipality of Frederiksberg and the Copenhagen Hospital Corporation on the other side.
45. 411. According to the Government, the situation was so serious that Parliament found that it would be harmful to the health of the population to let the dispute continue. There were no signs that the dispute was coming to an end and the parties' positions were very far from each other. Irrespective of the agreements concluded between the parties concerning emergency services, the waiting lists showed a marked increase during this period. Estimates from the Ministry of Health showed that the dispute had led to cancellation of more than 18,000 operations. A further increase in waiting lists would have a serious impact upon the health condition of the population. Furthermore, many patients were waiting for preliminary examinations which were not covered by the emergency services and a further delay in these would mean that serious diseases would remain untreated for an unacceptably long period.
46. 412. On top of this, the dispute was to be extended on 1 June as the municipal employers had given notice of lockout of district nurses as from that date. Irrespective of a possible emergency service, the lockout would have had serious consequences for many sick and elderly people.
47. 413. The Government states that while clearly the Parliament would have preferred the parties to solve the dispute themselves, the parties had conducted lengthy negotiations prior to the dispute which first broke down in February 1995 and were then continued within the framework of the Danish Conciliation Service. The Public Conciliator postponed the disputes, of which notice had been given twice, without results. During the dispute there were no signs of the parties approaching each other.
48. 414. The Government further states that the complainant was received by the parliamentary committee concerned in connection with the preparation of the Act and was given the possibility to present its views.
49. 415. As concerns the complainant's reference to the connection between the public employers and the Government, the Government states that, by its very nature, the hospital sector forms part of the public sector. The biggest groups of employees in the hospital sector, however, are employed in the municipal and county sectors which have no connection to the Government. As concerns the complainant's allegation that their right to strike was violated, the Government states that it may in a case such as the present one where the safety and health of the population is at risk intervene in a dispute provided that the staff is given proper protection as a compensation for the restrictions in the right to negotiate.
50. 416. The Act of 24 May 1995 prolonged the existing agreements until 31 March 1997 which is the starting date for the next round of collective bargaining in connection with the renewal of collective agreements in the public sector. As a consequence thereof the industrial action which had been taken or of which notice had been given lapsed. In addition, a committee was set up composed of the parties and a chairperson appointed by them.
51. 417. This committee had the task to analyse and discuss the wage conditions of the nurses, their functions, the distribution of tasks, the use of resources, etc., and also to give the parties the possibility - without any intervention from the Parliament or others - to negotiate and present proposals for the distribution of the wage bill pool which had been increased by an amount corresponding to the wage bill increase which had been negotiated in other parts of the public sector.
52. 418. The Committee could further make proposals involving additional costs which could be financed by means of efficiency-promoting measures, new forms of work organization, etc. The Committee was to complete its work by 1 October 1995, at the latest.
53. 419. On the basis of these proposals the parties to the collective agreement were to engage in negotiations on possible changes in pay and working conditions. These negotiations should be completed by 1 November 1995, at the latest. If the parties failed to agree on the proposals, the chairperson of the fact-finding committee should act as umpire and make an award which should be binding on both parties.
54. 420. The Act had the consequence that the dispute stopped. Apart from the question of the wage bill the parties were free to conclude agreements following negotiations between the parties. Unfortunately, the parties were very far from each other and neither of them seemed prepared to make any concessions. The umpire therefore had to make an award, dated 10 November 1995.
55. 421. In conclusion, the Government is of the opinion that the Parliament had no alternative to doing what it did considering the health conditions of the Danish population. The situation was serious, 18,000 postponed operations - 6,000 per week - and a big number of cancelled preliminary examinations was the maximum risk that the Parliament could accept. A further expansion of waiting lists could have very serious consequences. Emergency services had been set up, but did not compensate for the cancelled operations and preliminary examinations.
56. 422. The Act was to the biggest possible extent based on the existing agreements. In addition, the parties were offered the possibility of analysing conditions for nurses in an impartial forum composed exclusively of the parties themselves and with a unanimously appointed chairperson as well as the possibility of conducting proper negotiations within the framework of the Act. The Act gave the parties the possibility to discuss and negotiate any matter they found relevant, but - if they failed to agree - the chairperson should make an award which would be binding on both parties. The Government thus finds that it has satisfied the requirements which apply in connection with intervention in strikes by groups in essential services.

C. The Committee's conclusions

1. 423. The Committee notes that the allegations in this case concern the legislative interruption of lawfully undertaken industrial action in the hospital sector at the local, municipal and county levels and the legislative extension of collective agreements for the nurses and other hospital workers concerned.
2. 424. The Committee notes that, since 1969, workers and employers in the hospital sector have had the option of taking industrial action in support of their claims, subject to certain restrictions set in a number of General Agreements reached with their respective employers. It notes that under one such provision it is agreed that, if a work stoppage should arise, an agreement must be reached which will as a minimum safeguard the necessary staffing in all areas affected. In early 1995, the DNO gave notice of work stoppage for a total of 3,500 nurses and subsequently entered into negotiations for the determination of the staff necessary to maintain emergency and vital services in all affected areas. The DNO then concluded a general agreement with a model contract to be used as a basis for specific agreements in each area or institution which in all instances was accepted by the employers and considered to be sufficient to uphold the necessary and vital services. A final total of 2,175 out of 25,000 nurses in public hospitals and 1,300 nurses out of 11,000 in primary health in Denmark were covered by the strike called by the DNO.
3. 425. Shortly after the DNO gave notice of its work stoppages, the Association of County Councils gave notice to lock out 4,500 nurses. In this instance, however, it appears that negotiations for emergency staffing revealed that the actual everyday staff of a number of these wards and clinics did not exceed what must be considered a safe minimum standard and the Association was required to withdraw its notice with respect to a number of understaffed wards amounting to approximately 1,000 nurses. Subsequently, the National Association of Local Authorities, the Municipality of Copenhagen and the Municipality of Frederiksberg also served notice of lockout covering all nurses in health-care functions, working at nursing homes and health visitors in their territories which were not already affected by the strike. The Committee further notes that the lockout notice of the Association of County Councils proved to be excessive and by the second day of the conflict, talks of reduction were initiated and a number of nurses and wards were restored to full service. At the time of the Government intervention in the industrial action, approximately 4,000 nurses were locked out.
4. 426. Despite the steps taken to reduce the striking and locked-out nurses so as to ensure minimum vital services, the Committee notes the Government's position that the situation was so serious that it would be harmful to the health of the population if the dispute were to continue. Furthermore, it notes the Government's concern that the extension of the lockout intended for 1 June would have had serious consequences for many sick and elderly people.
5. 427. The Committee would recall that, in past cases, it has considered that the right to strike may be restricted or even prohibited in the case of essential services in the strict sense of the term, i.e. services whose interruption would endanger the life, personal safety or health of whole or part of the population. (See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 526.) Under this criterion, the Committee has considered that the hospital sector is an essential service where the supervisory bodies accept that government measures may restrict or prohibit strike action. (See Digest, op. cit. para. 544.)
6. 428. The Committee notes that the complainant argues in this case that the emergency services in the wards touched by the DNO strike continued to function without major problems and that the seriousness of the situation was escalated rather by the extensive lockout notice given by the different employers. However, the Committee is of the opinion that the essential nature of hospital services would permit the Government to end all industrial conflict if it considered, as is the case here, that the life, personal safety or health of the population were endangered. The Committee would draw the Government's attention to the general principle that employees deprived of the right to strike because they perform essential services must have appropriate guarantees to safeguard their interests; a corresponding denial of the right of lockout, provision of joint conciliation procedures and where, and only where, conciliation fails, the provision of joint arbitration machinery. (See Digest, op. cit., para. 551.)
7. 429. The Committee also recalls that where the right to strike is restricted or prohibited in essential services such as hospitals, adequate protection should be given to the workers concerned to compensate them for this limitation on their freedom of action. (See Digest, op. cit., para. 546.) This could be done, for example, by providing adequate, impartial and speedy conciliation and arbitration procedures in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented. (See Digest, op. cit., para. 547.) The Committee notes in the present case that Act No. 330 provides: (a) for contracts and agreements which terminated on 1 April 1995 to be extended to 31 March 1997; (b) for the appointment of two committees comprised of the concerned parties to analyse the activities, salary levels, etc., of nurses and medical laboratory technicians respectively; (c) for negotiations to be entered into between the respective parties on possible amendments to the terms and conditions of employment which, if not agreed to, will be determined by the respective chairpersons of the committees; and (d) a limitation on any proposals of salary increases to 1.12 and 1.29 per cent.
8. 430. The Committee notes that the parties were unable to reach any agreement under the terms of the Act and the final decision was handed down by the chairperson on 10 November 1995. It is not for the Committee to rule on the contents of that award, but it is rather up to the Committee to verify whether this form of compensation for removal of access to industrial action complies with its principles.
9. 431. The Committee notes that the procedure created by Act No. 330 is indeed quite similar to that established in a previous case before the Committee concerning the interruption of industrial action by junior doctors. (See Case No. 1421 (Denmark), 265th Report, paras. 62-103.) Under the criterion referred to above, the Committee considers, as it had in this previous case, that both the general procedure for the settlement of disputes concerning the extended agreements and the specific procedure (joint board/independent umpire) created by Act No. 330 are adequate, impartial and speedy and involve the parties. As such they do safeguard the interests of the workers who are obliged to maintain industrial peace under the legislation in question.
10. 432. The Committee must, however, also examine the allegation that the adoption of Act No. 330 has resulted in government intervention in voluntary collective bargaining. The Committee must recall in this regard that a basic aspect of freedom of association is the right of workers' organizations to negotiate wages and conditions of employment freely with employers and their organizations and that any restriction on this right should be imposed as an exceptional measure and only to the extent necessary, without exceeding a reasonable period; any restriction should be accompanied by adequate safeguards to protect living standards of the workers concerned. (See Case No. 1421, 265th Report, para. 99.)
11. 433. In addition, the Committee would once again recall that Article 6 of Convention No. 98 permits the exclusion from this basic right of "public servants engaged in the administration of the State", a term which the ILO supervisory bodies have looked at in the light of the distinction to be drawn between civil servants employed in various capacities in government ministries or comparable bodies and other persons employed by the government, by public undertakings - such as public hospitals in this case - or by independent public organizations. (See Case No. 1421, 265th Report, para. 100.)
12. 434. In this case, therefore, the Committee considers that the Danish Nurses' Organization legitimately had enjoyed the right to negotiate the terms and conditions of employment of nurses by means of collective agreements until Act No. 330 put an end to negotiations upon the absence of agreement as of 1 November 1995 until 31 March 1997, the life of the statutorily extended agreement.
13. 435. Furthermore, the Committee notes that the joint committee created under the Act for the DNO and its respective employers to negotiate amendments to the extended agreement was statutorily restricted in its negotiation of wage increases to 1.12 and 1.29 per cent and that the Act similarly restricted any final arbitration by the chairperson in this respect. As the wage increase appears to have been the main claim leading up to the industrial action in the present case, the Committee considers that such a restriction on the scope of the union's bargaining power is likely not to be conducive to harmonious industrial relations.
14. 436. The Committee would recall that, in Case No. 1421 concerning industrial action by junior doctors, it had been of the opinion that the government intervention went beyond the criteria set out in the above paragraphs concerning acceptable restrictions on the voluntary fixing of conditions of employment since the method used went beyond the extent necessary and a reasonable period by prolonging the terms of the agreements for two years, and in some cases four years. (See Case No. 1421, 265th Report, para. 102.) Since the agreements in this case were also statutorily extended for two years, the Committee must again conclude that the government intervention in question went beyond what can be considered an acceptable restriction. In this connection, while noting the Government's indication that negotiations and conciliation procedures undertaken prior to the industrial action had proven to be in vain, the Committee notes that no evidence was put forward to show that the Danish economy as a whole or the nurses' sector itself was faced with an emergency situation such as to justify intervention in voluntary collective bargaining. It requests the Government to refrain from taking such action in the future.
15. 437. Finally, the Committee notes that, while the complainant organization has indicated that it was in no way consulted prior to the adoption of Act No. 330, the Government states that the complainant was received by the parliamentary committee concerned and given the possibility to present its views. Given these conflicting versions, the Committee can only recall the importance which should be attached to the principle of consultation and cooperation between public authorities and employers' and workers' organizations at the industrial and national levels, in accordance with the provisions of the Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113). (See Case No. 1421, 265th Report, para. 92.)

The Committee's recommendations

1. 438. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee considers that, in the circumstances of this case, the legislative intervention which put an end to the industrial action in the hospital sector cannot be considered to be an infringement of the ILO principles on freedom of association.
   • (b) The Committee considers that the statutory renewal and extension of collective agreements covering nurses was not in conformity with the principle of free collective bargaining with a view to the regulation of terms and conditions of employment under Article 4 of Convention No. 98, ratified by Denmark. It requests the Government to refrain from taking such measures in the future.

Z. ANNEX

• Appendix I
• Act No. 330 on extension and renewal of employment contracts and agreements
• for nurses, radiographers, paediatric district nurses, district nurses,
• hospital laboratory assistants, etc.
  1. S. 1 The contracts and agreements referred to in Appendix I, section A, and
• which terminate on 1 April 1995, subject to new contracts or agreements being
• entered into before the Act enters into force, shall be extended to 31 March
  1997. 1997 with the additions and amendments quoted in Appendix 2, and under the
• conditions included in agreements or rulings under s.4.
  2. S. 2 The contracts and agreements referred to in Appendix 1, section B, and
• which terminate on 1 April 1995, subject to new contracts or agreements being
• entered into before the Act enters into force, shall be renewed to 31 March
  1997. 1997 with the additions and amendments quoted in Appendix 2 and under the
• conditions included in agreements or rulings under s.4.
  3. S. 3, para. 1. A committee shall be appointed with the purpose of preparing an
• analysis of nursing within the health-care sector, including:
  1. (1) areas of activity, allocation of tasks and responsibilities. The analysis
• shall be compared with the education and qualifications of nurses;
  2. (2) salary levels of nurses, including salary progression and development in
• relation to other occupations with which it would be natural to compare;
  3. (3) the extent to which flexibility in the execution of duties including
• interaction with other personnel groups can be increased;
  4. (4) utilization of resources, including possibilities for increased hours of
• duty at both hospitals and in the local authority nursing sector; and (5) the
• extent to which extraordinary activities can be established with a view to
• reducing waiting lists.
• Para. 2. A committee shall be appointed with the purpose of preparing an
• analysis of the work of medical laboratory technicians, including areas of
• activity, allocation of tasks and responsibilities and salaries.
• Para. 3. The committee under para. 1 above shall comprise representatives from
• the Danish Nurses' Organization, the Association of County Councils in
• Denmark, the National Association of Local Authorities, the Municipality of
• Copenhagen, the Municipality of Frederiksberg, the Copenhagen Hospital
• Cooperation and the Ministry of Finance. The committee shall be chaired by a
• chairman, jointly appointed by the parties to the committee. Where agreement
• on a chairman cannot be reached, the appointment shall be made by the Public
• Conciliation Service.
• Para. 4. The committee under para. 2 above shall comprise representatives from
• the Danish Association of Medical Laboratory Technologists, the Association of
• County Councils in Denmark, the Copenhagen Hospital Cooperation and the
• Ministry of Finance. The committee shall be chaired by a chairman, jointly
• appointed by the parties to the committee. Where agreement on a chairman
• cannot be reached, the appointment shall be made by the Public Conciliation
• Service.
• Para. 5. The committee under para. 1 above may make proposals which imply
• additional expenditure with effect on or after 1 October 1995 within the
• following percentages of basic salaries, excluding supplements and allowances,
• as at 1 October 1994:
  1. (1) Within areas covered by central government and local authority
• organizations and the Danish Nurses' Organizations: 1.12 per cent.
  2. (2) Within areas covered by the Copenhagen Hospital Cooperation and the Danish
• Nurses' Organization: 1.29 per cent.
• Para. 6. The committee under para. 2 may make proposals which imply additional
• expenditure with effect from or after 1 October 1995 within the following
• percentages of basic salaries, excluding supplements and allowances as at 1
• October 1994:
  1. (1) Within areas covered by central government and local authority
• organizations and the Danish Association of Medical Laboratory Technologists:
  1. 118 per cent.
  2. (2) Within areas covered by the Copenhagen Hospital Cooperation and the Danish
• Association of Medical Laboratory Technologists: 1.29 per cent.
• Para. 7. The committees may also make proposals which involve additional
• expenditure which is financed by improvements in efficiency, rationalization,
• reorganization of work routines, etc.
• Para. 8. The committees shall conclude their work on or before 1 October 1995.
• Para. 9. Expenses of the committees shall be met by central government funds.
  4. S. 4 Based on proposals from the committees under s. 3 above, negotiations
• shall be entered into between the respective parties to the contracts of
• service on possible amendments to the terms and conditions of such contracts.
• Para. 2. Points on which agreement is not reached between the relevant parties
• before 1 November 1995 shall, with respect to nurses, be decided by the
• chairman of the committee under s. 3.1 above and, with respect to hospital
• laboratory assistants, be decided by the chairman of the committee under s.
  3. 32 above.
• Para. 3. Expenses incurred by the chairman under para. 2 above shall be met by
• the two parties to the contracts of service, each to pay one-half.
• Para. 4. The agreements made under para. 1 above and the decisions made under
• para. 2 shall not be approved by the Danish Local Authorities' Pay Board or by
• the board mentioned in s. 14 of the Copenhagen Hospital Cooperation Act.
  5. S. 5 The contracts and agreements referred to under s. 1 above shall be
• subject to an embargo on striking and locking out for the period in which the
• contracts and agreements are extended.
• Para. 2. The contracts and agreements referred to under s. 2 above shall be
• subject to an embargo on striking and locking out with effect from the
• entering into force of the Act, and the stoppages of work which have commenced
• as a consequence of disagreements between the parties shall cease.
• Para. 3. Annoyance caused by industrial action shall not occur.
  6. S. 6 Matters of breach and interpretation of the contracts and agreements
• which are extended and renewed by this Act shall be decided by the usual rules
• which apply to the matter.
  7. S. 7 The Bill may be ratified immediately after adoption.
  8. S. 8 The Act shall enter into force from and including 27 May 1995. Extension
• of contracts and agreements under s. 1 shall enter into force from 1 April
  1995. 1995 Renewal of contracts and agreements under s. 2 shall be effective from
• the entering into force of the Act.
  9. S. 9 The act does not apply to the Faeroe Islands and Greenland.