COLLECTIVE RELATIONS IN THE CIVIL SERVICE

Transcription

1 COLLECTIVE RELATIONS IN THE CIVIL SERVICE By Francisco Cardona Principal Administrator, Sigma Paris, France Seminar on Social Rights and Pensions for Civil Servants in some EU Member States Vilnius, 9 November 2006 Civil Service Dept. under the Lithuanian Interior Ministry and Sigma This document has been produced with the financial assistance of the European Union. The views expressed herein are those of the author, and can in no way be taken to reflect the official opinion of the European Union, and do not necessarily reflect the views of the OECD and its member countries or of the beneficiary countries participating in the SIGMA Programme.

2 Backdrop Since one or two years now civil service Trade Unions in Lithuania have been more active in voicing their demands to the government. In September 2005 the Unions raised certain requirements concerning social guarantees of civil servants. Protest actions and rallies spread all over Lithuania in October and November of This development is relatively new since the Lithuanian independence from the Soviet Union. It also requires new government policies in the field of civil service development, which include the so-called industrial relations. In working out these new policies, the Government asked Sigma comparative information on social guarantees for civil servants, collective negotiations and pension schemes in EU and OECD countries. Introduction The general international regulation on industrial relations in the public service is the ILO Labour Relations in the Public Service Convention (No. 151) concerning Protection of the Right to Organise and procedures for Determining Employment Conditions in the Public Service, adopted on 27 June 1978 and entered into force on 25 February 1981 for those countries which have ratified it. This is complemented by Collective Bargaining Convention (No. 154) of In Europe, the European Social Chapter of 1961 is also applicable. The Right to Organise and Collective Bargaining Convention, 1949 (No. 98), specifically excludes public servants engaged in the administration of the State, but the ILO s supervisory bodies have adopted a restrictive approach concerning this exception, otherwise Convention No. 98 would be deprived of much of its scope. We assume that social rights and guarantees of civil servants and public employees are to a great extent dependent on the capacity of public employees to put together their efforts in unions and professional associations and exert pressure on the government in collective negotiations. There are international standards in the area of industrial relations. Article 7 of Convention No. 151 states: Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees organisations, or of such other methods as will allow representatives of public employees to participate in the determination of these matters. Article 1 of Convention No.154 states: 1. This Convention applies to all branches of economic activity. 2. The extent to which the guarantees provided for in this Convention apply to the armed forces and the police may be determined by national laws or regulations or national practice. 3. As regards the public service, special modalities of application of this Convention may be fixed by national laws or regulations or national practice. In this paper we briefly explore a number of issues and instruments of importance in obtaining social rights, guarantees and advantages by public employees and see the way in which they are generally regulated and practised in OECD and EU Member States. Right to Unionisation According to the ILO 1, the information available in the context of article 22 reports under the ILO Constitution, relating to the Labour Relations (Public Service) Convention, 1978 (No. 151) and the Collective Bargaining Convention, 1981 (No. 154) shows a positive trend towards social dialogue. Not only are the legal frameworks opening up to permit civil servants to form and join organizations of their own choosing, but they are also opening up to permit such organizations to defend the economic and social interests of their members. Whether this extends to the specific right to take industrial action to defend those economic and social interests appears to be in need of further development, but in the first place a discernible trend in civil service statutes is the opening up of the right to bargain. 1 See Jane Hodges Aeberhard Comparative Study of Contents of Civil Service Statutes, International Labour Office, June 2001, Geneva. 2

3 In a majority of OECD countries, the right of unionisation concerns all public servants or most of them. Some countries forbid union membership to certain groups of public officials such as judges, policemen and defence forces. This is the case for Australia, Austria, Belgium, Czech Republic, Finland, Germany, Hungary, Ireland, Italy, Japan, Luxembourg, Netherlands, Norway, Poland, Portugal, Spain, Slovak Republic, Sweden Switzerland, UK and the United States. Further restrictions to unionisation exist in Korea and Mexico. Right to Strike and Minimum Services There is no EU regulation on strikes in the civil services. This is left to the domestic regulations of Member States. A general feature for all EU MS is that strikes are allowed for public employees with the exception of those in charge of the so-called essential services. Generally speaking are considered essential services the following: transport, public broadcasting, water, gas and electricity supply, prison administration, the justice system, national security services, medical care and emergency services. The European Committee of Social Rights also includes food supply, waste disposal, and air traffic control. In these public services, restrictions to strike are considered legitimate if they are in compliance with article G of Part III of the European Social Charter of According to that article of the Charter in order to be legitimate such restrictions to the right to strike should 2 : 1) be prescribed by law; 2) pursue a legitimate aim recognised by the Charter, i.e. ensuring respect for the rights and freedoms or others or the protection of the public interest, national security, public health or morals; 3) be necessary in a democratic society: the concept of necessity presupposes that the restriction corresponds to a social imperative and is proportionate to the legitimate aim pursued. The test of proportionality involves weighing the prejudice to the individual or group against the prejudice to the State. The real debate in Europe today is not about whether civil servants and public employees should enjoy or not the right to strike and to carry out other collective actions, which are known under various names (work stoppage, job action, walk-out, sit-down strike, sympathy strike, secondary strike, wildcat strike, etc.), but about the limitations to be set to such rights. For a start, most EU Member States forbid political strikes. However, leaving aside political strikes, public employees are allowed to undertake non-political strikes under certain conditions. The ILO defines the cases in which the right to strike may be subject to restrictions, prohibition or compensatory guarantees. It says that it may be restricted or even prohibited in public services in the case only of public servants in positions of state authority or in essential services those whose suspension would endanger lives, safety or health in all or part of the population. Thus, while recognising that stoppages in services or enterprises such as rail and other transport inconvenience the community, it takes the view that such stoppages can scarcely be treated as causing a national crisis. For this reason it regards requisitioning of workers during disputes in those sectors as unwarranted interference with their right to strike in defence of their economic and work interests. The International Labour Office (ILO) also provides particular guidelines in this respect. It considers the hospital sector, electricity services, water distribution services, telephone services and air traffic control to be essential services. The ILO indicates, however, that the strict definition of an essential service depends largely on the specific conditions in each country. The concept cannot be an absolute one, in that a non-essential service may become essential if a strike lasts more than a certain time or is of a certain scale, thus endangering the lives, safety or health among all or a part of the population. 2 See Report to the Parliamentary Assembly of the Council of Europe on The Right to Strike in Essential Services: Economic Implications of 11 May 2005, Rapporteur Mr. Giovanni Crema, Italy, Socialist Group, 3

4 On the basis of these definitions and clarifications on the right to strike and the limitations it places on them, the ILO sets out the situations and conditions in which a minimum-service requirement may be imposed: 1) Firstly, in services whose suspension might endanger life, safety or health and which are essential services in the strict sense of the term. 2) Secondly, a minimum-service requirement might be introduced in services which are not essential in the strict sense, but where strikes of a certain scale or duration might cause national emergency threatening normal living conditions. 3) Thirdly, it could be introduced in services of prime importance. In the ILO s view, it is important that workers organisations be involved as well as employers and public authorities in negotiations on minimum services and the number of workers needed to provide them. A minimum service is not intended to weaken a strike by neutralising its impact. Unions must not be left with the impression that a strike has failed because the minimum service was too extensive or was set up unilaterally. There are a few specific cases where ILO believes that circumstances warrant a minimum-service obligation: ferries, the national port authority, the metro, passenger and goods transport, railways and the post. In a number of OECD countries, all or near all public servants are allowed to strike, although interdictions exist for the judiciary, armed forces or some few special types of civil servants involved in the general security if the state. This is the case for Australia, Luxembourg, Netherlands (excepted defence), Portugal (except the military and police), Spain (except armed forces, guardia civil, police, judges and prosecutors), and Switzerland. In some Nordic countries, in addition to the prohibitions to striking for security forces or the judiciary, the interdictions affect also senior positions in the administration. In Finland striking is forbidden to senior civil servants and those middle managers that represent the state as an employer at the central level and at the agencies. In Norway the senior civil service and the military personnel have no right to strike. In Sweden striking is forbidden to directors general. Principals have no striking rights in the stillborn Czech Law on Civil Service. In Germany civil servants have no right to strike, but public employees can do it in order to reinforce their demands in the framework of collective negotiations. Finally, the right to strike is very limited or totally forbidden in a number of countries such as Hungary, Ireland, Italy, Korea, Japan, Mexico, Poland, Turkey and the United States. Although public employees may be legally allowed to strike, they may be not allowed to strike in certain circumstances. For example, striking may be allowed to reinforce demands in the course of negotiating a collective agreement, but may be forbidden during the lifespan of any such agreements (e.g. in Australia, Finland, Ireland, Norway, Portugal, Slovakia) or there may be exceptions in connection with particular motives or justifications for the strike (Finland, Ireland, Netherlands). Most countries establish the legal obligation to guarantee minimum services during strikes: Australia, Belgium, Czech Republic, Germany, Hungary, Luxembourg, Mexico, Netherlands, Portugal, Spain, and Sweden. The Funding of Civil Service Trade Unions As expected, only in a minority of countries, unions are directly financed by public funds. In the majority of countries the main resources of are the members contributions. Interestingly, one can notice that in Hungary, Ireland, Italy and the United States, where unions in public services are partly financed by public funds, the right to strike is very limited or forbidden. But while the legal involvement of civil services' unions is relatively low in Ireland or the United States, it is higher in Hungary and much higher in Italy. In Spain, where the funding comes basically from public funds, involvement in consultations is mandatory and striking is allowed. 4

5 Consultations and Negotiations There are large differences across countries concerning the legal involvement of unions in the negotiations concerning pay, working conditions, employment frameworks, the introduction of new tools of management in the civil service, or the restructuring of the public services. Broadly speaking, one can identify some groups of countries: In some countries the legally mandatory involvement of unions can be relatively low, and can mostly consist of consultations on a voluntary basis. These countries include Austria, Belgium, Ireland, Japan, the UK and the United States 3. In most of these countries, unions are generally not at all involved in the restructuring of the services or the reforms of the introduction of new management tools in the civil services. In other countries, the involvement of unions is legally higher. Unions have to be consulted (obligation by law) in many aspects, including the determination of pay, work conditions or employment frameworks: Czech Republic, Hungary, Mexico, Norway, the Netherlands, Portugal, Spain, and Slovak Republic. But the obligation of consultation excludes often the restructuring of public services or the introduction of new management tools in the civil service, on which consultations are carried out more on a voluntary basis. The situation is mixed in Finland 4 or Korea 5, with different parts subjects to involvement of unions in the negotiation process, sometimes with mandatory agreements. The legally compulsory involvement of unions can be more important in Germany 6, Sweden 7 or Italy 8, and this despite the restrictions concerning the terms of right to strike in these countries. According to a study published by the ILO in 2001 the last decade has seen a movement away from the concept of the government being considered as a sovereign employer and determiner of pay and other terms of employment to a more consensual approach, reflected in statutory recognition of rights to negotiation in place of the earlier, restricted rights to consultation. The institutional recognition of the broader approaches can be seen in the wide variety of social dialogue arrangements 9. However, this seems not to be corroborated by the practical experience in OECD countries, where great disparities exist. The Matters and Structure of the Collective Negotiation In general, trade unions play an important role in determining the working conditions of civil servants, including salary conditions, and in the introduction of reforms in the civil service and public employment. Trade unions play a lesser role on issues like performance appraisal, selection and recruitment policies, and levels of public employment. Trade unions in general give priority to raising salaries for those already employed in the administration over increasing the amount of public employment. There are general collective negotiations encompassing all the central or federal public administration in Belgium, Germany, Canada, Spain, France, Ireland, Luxembourg, Portugal, Federal unions are limited to negotiating over compensation at those agencies that have been provided explicit statutory authority to do so. This authority is limited to a very small number of agencies. Unions are very rarely involved in the determination of pay, but where they have to be consulted, and sometimes with mandatory agreements, for work conditions or employment frameworks. Agreement with unions is mandatory for pay or work conditions, but unions are not involved in the determination of employment frameworks, introduction of new management tools, or restructuring of the public services. The collective bargaining matters are usually for working condition such as compensations, welfare etc. On the other hand, the matters for organization management such as policymaking decision, authority to appointment etc. are excluded. In Germany, for civil servants, unions have to be consulted in many aspects. For public employees, agreement is mandatory in many aspects (pay, employment conditions, employment framework). In Sweden, agreement with unions is mandatory in many key aspects (pay, work conditions, employment framework). In Italy, agreement with unions is mandatory in many aspects, and consultation is mandatory by law for the Government restructuring (delegation, institutional change, changes to the budget process). See Jane Hodges Aeberhard Comparative Study of Contents of Civil Service Statutes, International Labour Office, June 2001, Geneva. 5

6 Poland and Switzerland. In Germany and Netherlands in some cases the negotiation by sectors is also practiced. In Netherlands, Australia and New Zealand collective negotiation is also done at the level of working departments or agencies. Collective negotiation is done at central level plus by professional groups in Austria, Demark, Slovakia, and Greece, and at the central level plus working departments in Belgium, Finland, Hungary, Iceland, Italy, Norway and Sweden. In Ireland, Japan and Korea salaries are established on the basis of a recommendation by an independent control agency or by the President of the Republic like in Mexico, United States and Czech Republic. Australia: Basic pay, working conditions and employment frameworks are negotiated at the central level. Introduction of new management tools is delegated to departments. Belgium: Negotiation of minimum services during strikes is reserved to the centre. The rest is delegated to departments. Finland: Minimum services during strikes and public employment frameworks are negotiated at the centre. The rest is delegated. Hungary and Ireland: Negotiation of basic pay and employment frameworks are reserved to the centre, but negotiations on certain working conditions are delegated. Netherlands: Working conditions negotiations are centralised whereas negotiations on basic pay and employment frameworks are delegated to agencies and ministries. Norway, Portugal and Spain: relative centralisation, but there is room for manoeuvre for negotiating certain variable components of the remuneration. UK: Negotiation on general rules for the right to strike or the rules on minimum services are centralised, but most of any other matters are decentralised. United States: Negotiation on certain matters is delegated to some departments and independent agencies. These, in turn, may delegate some authority to sub-units within their organisations. The level of recognition (representativity) of labour organisations determines the level at witch bargaining will occur. In many instances there will be national agreements supplemented with local agreements. In Particular, Salary Negotiations There is a variety of ways in which remuneration is determined in the public services of OECD member states. Bargaining: A large number of member states use some form of centralized collective bargaining between governments and unions to determine salary levels. This method is used through a single, comprehensive negotiation for the entire central/national/federal government sector in Ireland, Luxembourg, Portugal, Spain and the Slovak Republic. Negotiations at the central level, with global adjustments by department/sector, take place in Austria and Belgium. Negotiations take place at the central level, with possibilities of adjustments at a decentralised level, in Belgium, Finland, Hungary, the Netherlands and Norway. Government negotiators: Negotiation for the determination of remuneration can be centralized (Germany, Ireland or Luxembourg), with some possible adjustments at the delegated levels (Austria, Belgium, Finland, Hungary, Italy, Netherlands, or Norway) Negotiation can be as well delegated, within the limits of an allocated administrative budget, at the discretion of the decentralized employer, like in Australia Non-bargaining methods: Five OECD member states do not use any form of salary negotiation. In Japan, the determination of remuneration is based on the recommendations of an independent examining committee. In Korea, Mexico, Switzerland or the United States, remuneration levels are based on the recommendations of the President/ Prime Minister or Treasury (in the case of Mexico). 6

7 Frequency of Salary Negotiations In many OECD countries, the frequency of salary negotiations is annual. These countries include Austria, Hungary, Japan, Korea, Mexico, Portugal, Spain, Slovak Republic, Switzerland, UK or the USA. In some other countries it is biannual (for instance in Belgium, Ireland or the Netherlands). In some other countries it depends on the specific organisation (department, agency, etc.) or on the type of public employee: In Germany, a distinction is made between the typeof public servants: - For civil servants: no fixed period; in accordance with Section 14 (1) of the Civil Servants Remuneration Act, remuneration is regularly adjusted to the development of general economic and financial circumstances by a federal law, taking the responsibility in the context of the civil servant s tasks into account. - For public employees (without the status of civil servants): The frequency of negotiations depends on the period of validity of a collective agreement. It is up to the parties to the agreement to determine this period. In the past, this period ranged from one to three years. In Australia, it varies with the length and nature of each agency agreement. Collective agreements generally last for three years. Individual Australian Workplace Agreements may be reviewed more frequently, possibly annually in some cases. In Sweden, it depends on the period of validity of the current agreement. From one to three years is common. At local level yearly revisions is the normal pattern. Salary Adjustment Methods Pay levels in the civil service are indexed to inflation in Belgium, Germany, Hungary, Italy 10, Luxemburg, Slovak Republic, and Switzerland. Pay levels are not indexed to inflation in a number of countries like Australia, Austria, Finland, Ireland, Japan, Korea, Mexico, Netherlands, Norway, Portugal, Sweden, UK or the USA. These countries take into account a broader range of economic and budgetary factors: In Finland, an economic analysis made by the Incomes Policy Information Commission. In Korea, every year, the Korea Government surveys the pay disparity level between the pay level of government employees and that of non-government employees at private companies having more than 100 employees. Considering the survey result, tax revenue and economic situations, the government decides the size of the pay raise. In the Netherlands, the government compares the pay levels to the reference model. This model describes the average rising of the pay level in the market. In Sweden, a labour cost index is used to measure the labour cost development in manufacturing industry (for blue- and white-collar workers), and includes costs for changes in wages and pay roll taxes etc. Labour cost index is a technique to calculate cost increases only. In Austria, comparisons between salaries in the public and private sector are made rather seldom and only referring to some positions. Anyway it is not possible to report an index. Traditionally, in negotiating salary adjustments, the inflation rate, the rate of economic growth and trends in private sector pay have been considered. In recent years, much emphasis has been accorded to the overall budgetary conditions. In Ireland, there is no indexation but factors such as inflation, growth and competitiveness are considered in the negotiations. Negotiating other Working Conditions The working conditions in the civil service are one aspect of the attractiveness and the quality of the public employer, together with many aspects such as pay, possibilities of progression or 10 In the case of Italy, pay is indexed on foreseen inflation and not on real inflation. 7

8 career advancement, pensions, and more generally the image of the civil services in the eyes of the public. During the last 15 years, work conditions have become more flexible in a number of OECD countries. In particular, the recourse to flexible working time has been more extensively allowed recently as Austria (2002), Norway (2001) and Portugal (1999) introduced various flexible working-time schemes. In most of the cases they include mostly part-time work or flexible working hours. The proportion of part-time workers in the civil service at the national level of government has significantly increased in countries like the Netherlands, the UK, Australia or Germany. Interestingly, these proportions remained steady or even decreased in traditionally flexible Nordic countries like Sweden, Norway (where the proportion was already relatively high) or Finland. The proportion remains relatively low in Italy (around 4% of staffs) or Hungary (2% of staffs). As expected, part and flexi working time is more used in sectors like education or health, and more used by women. In some countries, it is also seen as a tool to retain older workers, in a context of ageing civil services and massive waves of departures. Despite the increase of the possibilities of recourse to part-time, the proportion of part-time workers remains generally lesser than in the private sector, and significantly so in Australia, Germany, the Netherlands, or the UK. The proportions are more similar between the public and the private sectors in Nordic countries (Norway, Sweden, and Finland). The existing figures don't show the quality of part-time arrangements, and one could surmise that part-time arrangements in public services are let to the employees choice in agreement with the management, while it can be a matter of constraint more than of choice in some areas of the private sector. Conclusions 1. In the majority of EU and OECD countries trade unions play a significant role in gaining improvements of civil servants social rights and guarantees. 2. In some countries collective rights (unionization, negotiation, and strike) are forbidden or very restricted. 3. Governments organize their collective negotiations in a variety of ways depending on the matters under negotiation. 4. Certain matters are not under negotiation in a number of countries. 5. The legally recognized involvement of trade unions in setting working conditions, including salaries, varies from country to country, although the ILO sees a trend towards more negotiation on these matters. 8