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FOURTH ITEM ON THE AGENDA

317th Report of the Committee on Freedom of Association

Contents

Introduction

Case examined by the Committee
Case No. 1971 (Denmark)
Representation against the Government of Denmark presented by the Association of Salaried Employees in the Air Transport Sector (ASEATS) and the Association of Cabin Crew at Maersk Air (ACCMA) under article 24 of the ILO Constitution alleging non-observance by Denmark of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining

The Committee's conclusions

The Committee's recommendations

Introduction

1. The Committee on Freedom of Association, set up by the Governing Body at its 317th Session (May 1999), met at the International Labour Office, Geneva, on 27 and 28 May and 4 June 1999 under the chairmanship of Professor Max Rood.

2. The Committee examined a representation for the non-observance by Denmark of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1948 (No. 98), made under article 24 of the ILO Constitution by the Dansk Magisterforening (DM).

3. The Committee submits a report on this representation for the Governing Body's approval.

Case No. 1971

Definitive report

Representation against the Government of Denmark
presented by the Association of Salaried Employees
in the Air Transport Sector(ASEATS) and
the Association of Cabin Crew at Maersk Air (ACCMA)
under article 24 of the ILO Constitution alleging non-observance
by Denmark of 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)

Allegations: Government interference in free collective
bargaining and the right to strike through the statutory
imposed extension of collective agreements and the
linking of agreements for conciliation purposes

4. By communications dated 7 May, 1 September 1998 and 4 May 1999, the Association of Salaried Employees in the Air Transport Sector and the Association of Cabin Crew at Maersk Air, referring to article 24 of the ILO Constitution, sent the Director-General a representation alleging non-observance by the Government of Denmark of 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).

5. At its June 1998 session, the Governing Body declared this representation receivable and decided to refer it to the Committee on Freedom of Association for examination (Case No. 1971) [see GB.272/8/2].

6. The Government sent its comments on this case in a communication dated 25 January 1999.

7. 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 complainants' allegations

8. In a communication dated 7 May 1998, the Association of Salaried Employees in the Air Transport Sector and the Association of Cabin Crew at Maersk Air allege that the Government of Denmark has violated Conventions Nos. 87 and 98 by upholding, and applying against them, section 12 of Act No. 192 of 6 March 1997 on Conciliation in Labour Disputes (hereinafter, "the Conciliation Act").

9. By way of background, the complainants indicate that the agreements between them and their respective employers were due for renewal in the spring of 1998. On 30 March 1998, the Public Conciliator informed the Association of Salaried Employees in the Air Transport Sector that the Danish Employers' Association had wished this association's agreement with Scandinavian Airlines (SAS) and Scandinavian Airlines Data to be subject to mediation. The Association of Salaried Employees in the Air Transport Sector protested against this inclusion in conciliation procedures by a letter dated 3 April 1998, referring in particular to the fact that similar inclusions had occurred in 1991, 1993 and 1995, thereby depriving them of their right to free collective bargaining. This protest was ignored by the Public Conciliator who, thereby, made use of his powers under section 12 of the Conciliation Act.

10. In this respect, the complainants recall that the Conciliation Act empowers the Public Conciliator to include several sectors of employment in a mediation irrespective of the wishes of the unions and/or employers concerned and furthermore provides that the result of the mediation is to be decided by a majority of the workers taken as a whole, all sectors included. Thus, a sector having voted in favour of the mediation may be forced into a labour dispute if the majority of the labour market votes against the mediation. On the other hand, where the members of a sector have voted against the mediation, they may be deprived of their right to strike if the majority of the workers in the labour market vote in favour.

11. In the present case, the collective agreements of the Association of Cabin Crew at Maersk Air were also included in the global mediation. At the expiry of the collective agreements of the complainants, the respective employers' parties called a lockout of the members of the organizations effective 27 April 1998.

12. On 6 May 1998, the Minister of Labour introduced to Parliament Bill No. 86 on the renewal of certain collective agreements. Section 1 of the Bill provides that the collective agreements comprised by the mediation result of the Public Conciliator are renewed until 1 March 2000. Sections 2 to 4 introduced certain amendments to the agreement and under section 5 the conflict was terminated. Section 6 imposes a peace obligation on the parties for the entire two-year extension. The Bill was adopted by the Parliament on 7 May 1998. Thus, the collective agreements for the complainants were renewed by statutory provisions, leaving no opportunity for the complainants to enter into collective bargaining with their counterparts.

13. In conclusion, the complainant states that the free functioning and free collective bargaining of the complainants have been violated by the Government through the action taken by the Public Conciliator under section 12 of the Conciliation Act and their rights to strike and enter into free collective bargaining have been violated by the adoption of Bill No. 86.

14. In their communications dated 1 September 1998 and 4 May 1999, the complainants emphasize that the statutory renewal of collective agreements was made with respect to the entire labour market and was not limited to any restricted sectors which could be considered as essential services.

B. The Government's reply

15. In a communication dated 25 January 1999, the Danish Government stated that on 30 March 1998 the Public Conciliator presented a draft settlement for the renewal of the collective agreements which expired on 1 March 1998. The majority of the collective agreements were in the field covered by the Danish Employers' Confederation (DA) and the Danish Federation of Trade Unions (LO). The draft settlement also included the renewal of some collective agreements in the field of the DA and the Federation of Salaried Employees (FTF).

16. The collective agreement between Scandinavian Airlines Systems and the Association of Salaried Employees in the Air Transportation Sector and the collective agreement between Maersk Air and the Association of Cabin Crew at Maersk Air have been included in the Public Conciliator's draft settlement and have subsequently been covered by the Government's Act on renewal. Scandinavian Airlines System and Maersk Air are members of the DA.

17. The draft settlement was put to a vote and was adopted by the employer side, but rejected by the employee side. When the draft settlement had been rejected, an industrial dispute broke out on the Danish labour market, comprising more than 400,000 employees.

18. When the industrial dispute had been running for ten days, the Folketing (the Danish Parliament) adopted the Act on renewal of certain collective agreements, etc. for the purpose of putting an end to the general dispute which had paralysed many functions in the Danish society with resulting serious consequences.

19. The Government recalls that it is significant for the Danish system that a very large part of the Danish workers are organized and this high organization rate forms the background for the collective bargaining system. The Danish trade unions are traditionally established as national unions divided according to skills, and these are further divided into local branches. Typically, the workers in an individual enterprise are organized in a number of different unions according to their specific skills. Denmark has no industrial unions. The Government further emphasizes that the labour law system is to a wide extent based on agreements between workers and employers and to a lesser extent on legislation. There is a large number of collective agreements on the Danish labour market. In the field of the DA/LO alone, there are more than 600 collective agreements. These collective agreements are considered as private agreements and thus the Danish Government has only little knowledge of the contents of the individual collective agreements.

20. As the collective agreements have to a wide extent been concluded on the basis of occupational sector or work functions, there are usually several collective agreements in the individual enterprise which regulate the workers' pay and working conditions. This is the background as to why the renewal of the individual collective agreements is designed to take place simultaneously and why the social partners aim at achieving a uniform development on the organized labour market. Before the expiry of the individual collective agreement, the parties undertake negotiations on the renewal starting with the exchange of claims.

21. Even when the negotiations for a new collective agreement have not been concluded before the expiry of the collective agreement, this does not result in a collective agreement's gap. Usually, the collective agreement continues to run until an agreement on a new collective agreement has been made, or until one of the parties takes industrial action -- the workers by launching a strike and the employers by a lockout under the respective collective agreement.

22. Until 1995, the renewal of collective agreements took place more or less through a renewal of the collective agreements both in the private sector and in the public sector during the spring of the odd year. In 1995, as a new initiative, three-year collective agreements were concluded in the industrial sector (the Confederation of Danish Industries (DI) and CO Industry), while the rest of the private sector and the public sector renewed their collective agreements for the usual two-year period.

23. In connection with the renewal of the collective agreements in 1997, the private sector, not including the industry, and the public sector made agreements on the renewal of their collective agreements. In the field of the DA/LO, both one-year and three-year collective agreements were made. The background was the industry's three-year renewal of collective agreements in 1995 and a wish to restore the pace of the renewal of the collective agreements. The rest of the labour market kept the two-year collective agreements.

24. In connection with the renewal of the collective agreements in the spring of 1998, the majority of the private sector was successfully brought into the same renewal pace, which means that negotiations will mainly take place in year 2000. In the spring of 1999, however, the collective agreements in the public sector (state and local authorities) and in the private sector, the SALA sector (i.e. the sector of agriculture, forestry and horticulture) and the financial sector are to be renewed.

25. The job of the Public Conciliator is to assist the social partners in connection with the renewal of the collective agreements and to settle disputes. The tasks and powers of the Public Conciliator are laid down in the Conciliation Act. The Danish Government has no influence on the Public Conciliator's actions in connection with the renewal of the collective agreements. He/she does not, for example, have to take into account any national economy considerations in his/her efforts to reach a draft settlement which is acceptable to the parties. It is the task of the Public Conciliator to try to make the two parties reach agreement and he/she has certain powers in this connection. Among his/her most important powers are the following:

• the Public Conciliator may decide on his/her own or at the request of the parties to convene them for negotiations;
• the Public Conciliator may, while acting as a mediator, postpone a notified dispute for two weeks;
• the Public Conciliator may, when he/she finds it expedient, propose a draft settlement. Before he/she proposes the draft settlement, he/she has to consult representatives of the parties and representatives of the main organizations, if the parties are members of such an organization;
• the Public Conciliator may decide that several draft settlements in different sectors completely or partially are to be considered as a whole, so that the results of the voting in the different sectors are linked together. It is a precondition that the negotiation possibilities in the respective sector are considered exhausted. It is the Public Conciliator who decides when the negotiation possibilities are exhausted.

26. A draft settlement has to be put to the vote with the parties. When a draft settlement is proposed, the members of the organizations, which are included, must be notified thereof. On the workers' side, the voting takes place either by ballot or by voting in a competent body. The organizations decide themselves (in their regulations) whether they vote in the former way or in the latter.

27. The workers' side may reject a draft settlement by ballot by an ordinary majority if the participation rate in the poll is above 40 per cent. If the rate is below 40 per cent, it is a requirement that a majority has voted against the proposal and that this majority represents at least 25 per cent of the persons entitled to vote. On the employers' side, the voting takes place according to the organizations' regulations.

28. In 1998, the majority in the private labour market negotiated on the renewal of their collective agreements. The renewals concerned more than 500 collective agreements and covered more than 400,000 employees. The parties to the collective agreements succeeded under the Public Conciliator's guidance and direction in reaching agreement on the renewal of a number of collective agreements which covered more than 98 per cent of the workers.

29. On 31 March 1998, the Public Conciliator proposed a draft settlement which was recommended by the main organizations. The draft settlement covered partly the already concluded agreements, partly the collective agreements in the few sectors without any agreements. The draft settlement was put to the vote and the result of the vote was to be returned to the Public Conciliator on 24 April 1998, at the latest. The draft settlement was accepted by the employers' side, but rejected by ballot by the workers' side.

30. Following the rejection of the draft settlement, the dispute broke out on 27 April 1998. Immediately after the announcement of the ballot, the Government summoned the parties to the dispute to a meeting, where the Prime Minister reminded the parties to the collective agreements of their responsibility and encouraged them to undertake negotiations immediately in order to find a solution which could put an end to the dispute.

31. For the next ten days, the parties continued the negotiations, which mostly concentrated on more days off from work. At that point, however, the parties informed the Government that they could not reach an agreement which would put an end to the dispute. At the same time, the parties expressed the view that the situation had come to a deadlock and that there was no chance of a negotiated solution bringing an end to the dispute within the next few weeks.

32. On that background, the Government put forward a proposal for the renewal of certain collective agreements. The Bill was adopted by the Folketing on 7 May and the dispute stopped on 8 May 1998.

33. The new collective agreements run for two years so that the system of the majority of the private labour market negotiating collectively in the year 2000 is maintained. Regarding the contents of the Act, it is based on the rejected draft settlement with the addition of different forms of days off (up to five days for families with children), on which issue the parties had negotiated following the break-out of the dispute. These improvements were partly financed through a reduction of the employers' part of the pension contribution, partly through the abolition of an employer tax to the State.

34. The Government observes that this case contains two main questions. The first is the question of the Public Conciliator's right to link several draft settlements, and the second the Government's statutory intervention.

35. Concerning the first question, the Government emphasizes the special characteristics of the Danish labour market. The fact that a large number of collective agreements exist in the same enterprise and in the same sector with different unions makes it necessary for it to be possible to have a single ballot in a situation where the parties are not able to solve the problems themselves. The Government stresses that it is not a matter of expanding a collective agreement to cover other groups than those directly covered by the respective collective agreement. Nor is it a matter of forcing a collective agreement onto the majority of the workers. The fact is that negotiations take place in the individual sectors and if the Public Conciliator finds it expedient, he/she may propose a draft settlement for the solution of outstanding questions. As a starting point, such a proposal has to be put to the vote among workers and employers, who may either accept it or reject it. The linking rule means that the individual draft settlements may -- if the negotiation possibilities in the individual fields are considered exhausted -- be linked together as a single proposal, which all the affected workers and employers vote on as a whole. Therefore, the result is the same as if it had been the case of an industrial collective agreement, where sometimes groups of workers, e.g. in individual enterprises or groups with special functions, have to accept that they are turned down by the majority of their colleagues. If it were not for this rule, some even very small groups of workers, by voting no to their collective agreement, could prevent a return to work, irrespective of their colleagues voting yes to their collective agreements because the individual job functions in modern enterprises are so heavily dependent on each other. In that situation, such a group could exercise a sort of extortion which their colleagues would find unacceptable.

36. Basically, it is therefore a matter of a solidarity rule which underlines the collective nature of the Danish labour law system. Regarding the question whether it is a matter of large or small groups, it appears from the above description that if the majority of the workers who are covered by a linked draft settlement disapproved of this draft settlement, they have the power to reject it by vote. In the present case, a majority of workers, together with the complainants, voted no to the draft settlement. Furthermore, it was a matter of such a large poll participation that the proposal could be rejected by an ordinary majority. The Government therefore has difficulty seeing where the linking in this concrete situation has been detrimental to the complainants, even if their own arguments were accepted. They actually achieved the result they wanted from the ballot.

37. Regarding the legitimacy of the statutory intervention, the Government first points out that as soon as the conflict was a fact, it had established a monitoring group of government officials from a number of ministries to monitor the development of the dispute daily and the consequences it had on different sectors of society.

38. The parties involved in the dispute showed readiness to grant the necessary exemptions in order to avoid the safety and health of the population being jeopardized, which was the case more or less. Towards the end of the dispute problems started to emerge which could not continue to be solved by granting exemptions or other emergency measures. These were mainly problems due to lack of cleaning and accumulation of garbage which created serious problems for institutions and hospitals. According to information received from the hospitals many of them could only maintain an acute emergency service as regards surgery and medical treatment and there were also growing problems with supplies of certain medicaments used in the treatment. There were increasing transport problems in general which led to a risk to the vital transportation of medicine and medical test analyses.

39. For the Government, however, the decisive factor was that on the basis of the expressed declarations of the parties, it could be foreseen that the dispute would run for at least five weeks. In addition to this, the dispute would now be expanded to include groceries and other daily necessities. The Danish society is not able to endure a dispute of this duration and scope, as this would lead to serious problems for safety and health. It would have been irresponsible to risk such a situation just for the sake of providing documentation.

40. The Government is aware of the Committee's practice, according to which the economic consequences of a dispute are -- as a starting point-- considered irrelevant for deciding whether an intervention is legitimate or not. However, the Government points out that such a large-scale dispute would have had catastrophic consequences for the national economy if it had been allowed to run for the mentioned further three weeks at least. Denmark has, as one of the few countries in the world, been successful in fighting unemployment, which during the last five years has been halved from 13 per cent to approximately 6 per cent. It is obvious that such a measure puts very heavy demands on trade and industry which have to be able to absorb the many unemployed persons. This can only be possible under favourable economic conditions. If Danish trade and industry -- and not least the exporting trades -- had to lie idle for more than the approximate two weeks which had already passed, there is hardly any doubt that this would have had long-term damaging effects, not only in the form of immediate economic losses, but perhaps even worse in the form of lost market shares, which it would have taken years to regain. A return to high unemployment would have been putting a very large burden on the population.

41. As regards the nature of the intervention, we point out that the time frame of two years corresponds to the usual term for Danish collective agreements, that according to the review of the Government it would not have been possible or expedient considering the very purpose of the intervention to intervene only in certain sectors, but that the transport sector, to which the complainants also belong, is under all circumstances essential to the functioning of society and, furthermore, that the workers were granted concessions in several essential respects which constitute a major step forward seen from a child and family policy angle. Lately, Danish wage increases have actually been above the countries normally used as comparators.

42. In conclusion, the Government argues that the power which the Public Conciliator has under section 12 of the Conciliation Act to link several sectors into a single draft settlement, is closely connected to the structure and the dynamics which characterize the Danish labour market model, a model which is further characterized by a high rate of organization, many unions, many sectoral collective agreements, which -- among other things -- mean that pay and working conditions in one sector of activity are regulated by several different unions' collective agreements and by the fact that Danish collective agreements unlike in other countries are not extended to other areas by law as general collective agreements.

43. The individual member is ensured influence in relation to the draft settlement by this being sent to all members for a ballot. It should, furthermore, be stated that linking is not the same as an "extension of an agreement to the entire sector", linking means that the voting on the renewal of a number of collective agreements takes place as single ballot. This means that the Association of Salaried Employees in the Air Transportation Sector and the other unions have negotiated on the renewal of their own collective agreement(s) and that the provisions of the draft settlement are subsequently incorporated into the individual collective agreements. Thus, the acceptance of a draft settlement does not imply that the collective agreements, which are covered by the draft settlement, lapse.

44. The Act on renewal of certain collective agreements, etc. was adopted in 1998 by the Folketing for the purpose of bringing an end to a major dispute, which had paralysed many functions and had already had serious consequences as a result. However, the Folketing did not intervene until the moment when the social partners had given up the possibility of reaching a negotiated settlement and had notified the Government that they were not able to reach an agreement within the following weeks.

45. As it has been stated, both the Public Conciliator's power to link several collective agreements resulting in a single draft settlement and the Folketing's power, under extraordinary circumstances, to intervene and put an end to a dispute on the labour market when this had become a threat to the safety and health of the population, are necessary elements of the Danish collective agreements model. Without these elements, the Government argues that it would be necessary to change the Danish model radically, which neither the Government nor the social partners would like to do at the present time.

C. The Committee's conclusions

46. The Committee observes that this case concerns allegations that the Government has violated the complainants' right to strike, right to bargain collectively and has interfered in the complainant organizations' free functioning both through the maintenance and application of section 12 of the Conciliation Act and through the adoption of statutory provisions extending collective agreements.

47. The Committee must first recall that it has already examined on several occasions in the past complaints concerning the application of section 12 of the Conciliation Act (see Case No. 1418, 254th Report and Case No. 1725, 292nd and 307th Reports) and concerning intervention by the Government in free collective bargaining through the statutory extension of collective agreements [see Case No. 1338, 243rd Report, Case No. 1443, 259th Report and Case No. 1421, 265th Report].

48. As concerns section 12 of the Conciliation Act, the Committee notes the Government's argument, similar to that which has been expressed in previous cases, concerning the reasons why, within the Danish system, it is important for individual collective agreements to be renewed simultaneously. In particular, it notes the Government's position that the fact that a large number of collective agreements exist in the same enterprise and in the same sector with different unions makes it necessary to provide the possibility of having a single ballot in situations where the parties are not able to solve the problems themselves. According to the Government, the linking of individual draft settlements as a single proposal is the equivalent to industrial collective agreements where groups of workers in individual enterprises with special functions may have to accept a contrary position favoured by the majority of their colleagues. Finally, the Government stresses that, because individual job functions in modern enterprises are so heavily interdependent, extortion could be exercised by small groups of workers over the majority of their colleagues if such linking were not possible.

49. The Committee further notes the information provided by the Government concerning the tasks and powers of the Public Conciliator. In particular, the Committee notes that the Public Conciliator may decide that several draft settlements in different sectors be considered as a whole for voting purposes only after he or she considers that the negotiation possibilities in the respective sector have been exhausted. Finally, the Committee notes the Government's observation that in the present case the linking was not detrimental to the complainants since they voted, along with the majority, to reject the draft settlement.

50. While taking due note of the observations made by the Government, in particular that the Conciliation Act does not result in the extension of "a collective agreement" to an entire sector of activity, the Committee still observes that the linking of various draft settlements to be submitted to a vote within the overall labour market may result in a given sector, to which one of the draft settlements would apply, finding itself subject to a decision of the majority of the labour market even if the majority of the workers in that sector, represented by a majority organization, maintained a different view [see, for example, Case No. 1418, 254th Report, para. 206]. The Committee therefore considers that the view expressed when it last examined the conformity of section 12 with the principles of freedom of association (see Case No. 1725) remains valid. At that time, the Committee noted that, even subsequent to the legislative amendments made to the Conciliation Act in 1997, the system still made it possible for an overall draft settlement to cover collective agreements involving an entire sector of activity even if the organization representing most of the workers in that sector rejected the overall draft settlement [see Case No. 1725, 307th Report, para. 29]. The fact that, in this particular case, the outcome of the voting was in line with the position of the complainants does not change the fact that the present legislation can give rise to restrictions on the right of majority organizations to enter into free collective bargaining in a manner contrary to Article 4 of Convention No. 98.

51. Furthermore, the Committee considers that the analogy made to industrial collective agreements is irrelevant. The particularities of the Danish system raised by the Government, such as the existence of several different collective agreements in a given enterprise, make sense only in so far as they recognize the right of these many and diverse representative sectoral unions to undertake meaningful negotiations. The argument of job-interdependency and the risks of extortion should not be such as to deny the rights of legitimate representative unions to participate in free collective bargaining.

52. Finally, the Committee notes that section 12 may also have a negative impact on the possibility of a workers' organization to exercise the right to strike in so far as it may be bound by a labour market decision to accept an overall draft settlement to which a collective agreement concerning their sector has been linked. The Committee requests the Government to review the legislation, in consultation with the social partners, so as to ensure that the view of the majority of workers in a given sector is not subordinated to the view of the majority of the entire labour market as concerns the possibility of continuing free collective bargaining of terms and conditions of employment and as concerns the possibility of undertaking industrial action.

53. As concerns the legitimacy of the statutory intervention extending for two years the collective agreements under review in the spring of 1998, including those pertaining to the complainants, the Committee takes due note of the considerations evoked by the Government to the effect that: the extension for two years corresponds to the usual term for Danish collective agreements; the transport sector, which includes the complainants in this case, is under all circumstances essential to the functioning of society and; the legislative extension also granted concessions to the workers in several essential respects.

54. The Committee must nevertheless first observe that the principal effect of this intervention has been to render impossible collective bargaining in the private sector for the period of the two years by which the collective agreements have been extended. In this regard, the Committee recalls the importance it attaches to the principle that the public authorities should refrain from any interference which would restrict or impede the lawful exercise by trade unions of their right, which the Committee regards as an essential element in freedom of association, to seek to improve the living and working conditions of those whom they represent through collective bargaining or other lawful means; and that any such interference would appear to infringe the principle that workers' and employers' organizations should have the right to organize their activities and formulate their programmes [see 243rd Report, para. 245 (Case No. 1338 (Denmark))].

55. The Committee also notes that a further effect of the Act to Renew Certain Collective Agreements has been both to terminate the industrial action which had already begun and to prohibit any further industrial action which might occur in the relevant sectors for the period by which the operation of the collective agreements were statutorily extended. In this respect, the Committee recalls that the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which 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, 1996, 4th edition, para. 526]. While noting the Government's position that the transport sector, which includes the complainants in this case, is under all circumstances essential to the functioning of society, the Committee must recall that it does not consider transport generally to constitute an essential service in the strict sense of the term [see Digest, para. 545].

56. Moreover, as concerns the Government's argument that problems began to emerge towards the end of the dispute which could not continue to be solved by granting exemptions or other emergency measures, the Committee recalls that, although it is recognized that a stoppage in services or undertakings such as transport companies might disturb the normal life of the community, it can hardly be admitted that the stoppage of such services could cause a state of acute national emergency. It has therefore considered that measures taken to mobilize workers at the time of disputes in services of this kind are such as to restrict the workers' right to strike as a means of defending their occupational and economic interests [see Digest, para. 530].

57. Further, as concerns the nature of the services to be provided by the complainant, the Committee notes that the Government only refers in this case to a general risk feared in respect of the vital transportation of medicine. In this respect, the Committee would recall that a minimum service may be set up in the event of a strike, the extent and duration of which might be such as to result in an acute national crisis endangering the normal living conditions of the population. Such a minimum service should be confined to operations that are strictly necessary to avoid endangering the life or normal living conditions of the whole or part of the population; in addition, the workers' organizations should be able to participate in defining such a service in the same way as employers and the public authorities [see Digest, para. 558]. The Committee notes with regret that no attempts appear to have been made by the Government to negotiate a minimum service for the period of the industrial action in question in such a way as to have enabled the parties to the dispute to resolve their differences through free collective bargaining rather than resorting to a statutorily imposed settlement which has bound the parties for two years.

58. Finally, the Committee notes from the list of organizations covered by the conciliator's proposed compromise that the action taken by the Government had an impact on a large number of employees (over 400,000) covered by over 500 collective agreements without any effort being made to distinguish between those sectors which might have been argued to be genuinely essential (or likely to cause an acute national crisis) and those which cannot be considered as such.

59. In the light of the preceding paragraphs, the Committee is of the view that the 1998 Act renewing certain collective agreements involved statutory intervention in the collective bargaining process contrary to the principles of free collective bargaining and the right of workers' and employers' organizations to organize their activities and to formulate their programmes. The Committee therefore urges the Government to ensure that such intervention is not repeated in the future.

60. The Committee draws the legal aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

The Committee's recommendations

61. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee requests the Government to review section 12 of the Conciliation Act as indicated in its conclusions, in consultation with the social partners, so as to ensure that the view of the majority of workers in a given sector is not subordinated to the view of the majority of the entire labour market as concerns the possibility of continuing free collective bargaining of terms and conditions of employment and as concerns the possibility of undertaking industrial action.

(b) Considering that the 1998 Act renewing certain collective agreements involved statutory intervention in the collective bargaining process contrary to the principles of free collective bargaining and the right of workers' and employers' organizations to organize their activities and to formulate their programmes, the Committee urges the Government to ensure that such intervention is not repeated in the future.

(c) The Committee draws the legal aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

Geneva, 4 June 1999.

(Signed) Max Rood, Chairperson

Point for decision: Paragraph 61.