In November 1999, the Danish Ministry of Labour received a formal letter of notice from the European Commission concerning Denmark's implementation of the 1993 working time Directive. The Commission questioned whether Denmark's implementation of the Directive through collective agreements provided all employees with the necessary guarantees. In response, the LO trade union confederation and the DA employers' confederation have concluded an "implementation agreement" on the Directive, effective from February 2000, which means that it now in practice covers all employees. Accordingly, the "Danish model" should be able to survive successfully.
In recent months, there has been a renewed extensive discussion in Denmark on the implementation of European Union Directives in the social and labour field by means of collective agreements (DK9710133F). The issue arose when the European Commission sent a formal letter of notice to the Danish government on 22 November 1999 concerning the character and extent of the implementation of Directive (93/104/EC) on certain aspects of the organisation of working time, which has been effected in Denmark by means of collective agreements. The Commission questioned whether this type of implementation ensures to a sufficient extent that all Danish employees are guaranteed the rights which are laid down in the Directive, including a maximum weekly working time of 48 hours on average over a reference period. The Commission notes that it is clearly stated in the Treaty that collective agreements may be used to implement Directives (in accordance with the Danish tradition). However, the Commission points out that the case law of the European Court of Justice has specified certain conditions for the implementation of Directives. It is the Member States' obligation to ensure that all employees enjoy protection under the Directive.
On 22 January 2000, the Danish government submitted its reply to the Commission, stating that it has been possible to cover all employees by collective agreements and supplementary measures.
Legislation or collective agreements
The Commission's formal letter of notice created a debate in Denmark and it was argued by various parties - including researchers and social partner organisations - that possibly as many as 1 million Danish workers are not covered by any collective agreements, and consequently the working time Directive does not cover this group. From this point of view, it will therefore be necessary to adopt supplementary legislation that covers all employees.
There is an inherent conflict between the Danish tradition of regulation of the labour market through agreements and the more legislation-oriented type of regulation under construction at EU level. Denmark has, over a period of 100 years, built up a collective bargaining-based model for the regulation of labour market conditions (DK9708122F). This does not exclude legislation - examples include the Holiday Act, the Legal Relationship (Employers and Salaried Employees) Act and the Working Environment Act - but it means that essential matters such as pay and working conditions are determined by agreements which the parties have entered themselves, and that legislation in relation to the labour market is introduced in cooperation between the social partners and the political system. This means that legislation will often be passed on the basis of agreement reached between the central social partner organisations: the so-called consensus principle.
This procedure ensures both an effective implementation and an observance of the rules, from the point of view of both the social partners and the political system. This is also the reason why the social partners in Denmark stood together to defend the collective bargaining model when the EU started to deal with labour and social matters in earnest. This process reached a new stage with the Maastricht Treaty on European Union and its annexed social policy Protocol and Agreement, which came into force in 1993. The process was further strengthened with the 1997 Amsterdam Treaty (EU9707135F), and the incorporation of the social policy Agreement into the Treaty proper. The Maastricht and Amsterdam Treaty changes did not take only "continental European" legislative traditions into account, but also opened up the possibility of using collective agreements concluded by the social partners in the sphere of EU social policy. Under the social policy Agreement and subsequently, under Article 139 of the EC Treaty, agreements concluded between "management and labour" at European level may form the basis of EU Directives. Furthermore, it is expressly stated (currently in Article 137.4) in the EC Treaty that "a Member State may entrust management and labour, at their joint request, with the implementation of Directives" in the labour and social field, rather than using legislation (though the Member State concerned is "required to take any necessary measure enabling it at any time to be in a position to guarantee the results imposed by that Directive"). This possibility was introduced to ensure the principle that EU regulation should take into account the different national traditions; this means that the Danish government has a strong position when it refers to the principle of subsidiarity in its defence of the implementation of Directives by means of collective agreements.
Pressure on the social partners
The fact that the Commission has taken up this matter should probably be seen as reflecting the fact that there are different opinions on the issue within the EU and that many want to abolish the possibility of implementation by collective agreements. The step taken by the Commission has put the Danish social partners under pressure and this has contributed to the improvement of the procedures concerning the implementation of EU Directives - see below. With these most recent initiatives it can be argued that the problem under debate has now been solved. There are no Danish employees now who are not - directly or indirectly - covered by the working time Directive as implemented by collective agreements.
In July 1999, the government appointed a tripartite advisory body on the implementation of EU Directives in the labour field. It is also the task of this implementation committee to ensure that employees and employers receive the necessary information. It seems that agreement coverage has been strengthened and that more workers are now directly covered. In connection with the Danish government's reply to the Commission, the social partner organisations have made new calculations of the coverage of agreements. These calculations show that between 80% and 85% of employees are directly covered by a collective agreement or other agreements implementing the Directive. However, this does not solve the outstanding problem that there are groups which are not directly covered by collective agreements. However, the problem is probably much smaller than suggested by the figures of about 60% which had been mentioned in the debate.
LO and DA sign implementation agreement
The Danish Confederation of Trade Unions (Landsorganisationen i Danmark, LO) and the Danish Employers' Confederation (Dansk Arbejdsgiverforening, DA) have entered into an "implementation agreement" which takes effect from 1 February 2000. The agreement applies to all employees within the LO/DA field who are not covered by collective agreements and to both organised and unorganised employees. Furthermore, DA has, with reference to article 6 of its own regulations, sent out a communication which specifies that all employees in DA-affiliated enterprises who are not covered by collective agreements will nevertheless be covered by the provisions of the Directive. This means that the enterprises must incorporate the rules concerning working time in the employment contracts of the employees who are not covered by any collective agreement. If these employees do not have the possibility of having any case relating to these matters decided through the system set up for settlement of industrial disputes, they may bring the case before the ordinary courts of law. This communication from DA to the enterprises means that professional staff in the DA field will also be covered by the working time Directive even though they still do not have any collective agreements in this field. In the autumn of 1996 it was exactly this type of guarantee that the Danish Confederation of Professional Associations (Akademikernes Centralorganisation, AC) sought and obtained from the DA. However, in connection with the new discussion, AC has demanded a proper collective agreement. This is a demand which DA - due to traditions dating back to the clause concerning supervisors in the 1899 "September compromise" (DK9908140F) - is still unwilling to meet.
Finally, LO and DA have issued a guarantee for those employees who are not covered by agreements. This means that the organisations will intervene and if necessary take collective industrial action in the event that a problem relating to the working time rules arises in relation to one or more employees. If the social partners are not able to live up to this guarantee, the government has committed itself to take political action. With this measure, the social partners and the government believe that all employees are now covered. It is not a legally binding commitment, but a political guarantee which means that LO and DA have committed themselves to deal with any "residual" problems.
This entire set of guarantees which has been set up is in accordance with the method of implementation by collective agreements that was indirectly suggested by the answer which the former social affairs Commissioner, Pádraig Flynn, gave in April 1993 when the question was discussed in the European Parliament.
Commentary
The working time issue is a core element of the autonomy of the Danish social partners. Consequently, it is a good issue to use to draw the line. Of course, the Danish collective bargaining model would not collapse because of legislation on maximum working hours, and it cannot be excluded that there will be cases of implementation of Directives by way of legislation in the future. However, implementation by means of collective agreement will be the main principle. As mentioned above, there are a number of Danish statutes which, together with collective agreements, regulate the labour market, and this has been handled in such a way that the balance has been maintained and the Danish model is intact. This can also be done with EU Directives, but not if supplementary legislation becomes the rule rather than the exception and not if the legislation turns out to be more than purely minimum standards and becomes close to the actual conditions in the enterprises. In this case, it is likely that the social partner organisations would find themselves in a vicious circle and would lose increasingly large groups of members. It seems unlikely that people will want to be member of an organisation if they will be given the same rights through legislation. (Jørgen Steen Madsen, FAOS).
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