BEU, Alm.del - 2023-24 - Bilag 26: Orientering om Danmarks rapport til Europarådet om ikke-accepterede bestemmelser i Socialpagten

Beskæftigelsesudvalget 2023-24
BEU Alm.del Bilag 26
Offentligt

Danish report to the Council of Europe on the

non-accepted provisions of the European So-

cial Charter

Submitted by the Government of Denmark

August 2023

In pursuance to article 23 of the Charter, copies of this report have been com-

municated to:

The Confederation of Danish Employers (DA)

Danish Trade Union Confederation (FH)

Local Government Denmark (KL)

Danish Regions (DR)

The Danish Confederation of Professional Associations (AC)

Danish Employee and Competence Agency (MEDST)

BEU, Alm.del - 2023-24 - Bilag 26: Orientering om Danmarks rapport til Europarådet om ikke-accepterede bestemmelser i Socialpagten

Introduction

Following the recent revision of the procedure provided by Article 22 of the Euro-

pean Social Charter, Denmark is hereby

–

for the first time, and as one of the first

States Parties

–

submitting a report containing information on the non-accepted pro-

visions of the European Social Charter, on the prospects for and possible obstacles

to the ratification of the Revised Charter, as well as on the Collective Complaints

procedure.

Ratifications

Denmark ratified the European Social Charter on 03/03/1965 and the Additional

Protocol on 27/08/1996. It has ratified 45 of the 72 provisions of the Charter and all

4 articles of the Protocol.

Denmark has signed, but not yet ratified the Revised Social Charter and the Addi-

tional Protocol providing for a system of collective complaints.

Table of Accepted Provisions

1.1

4.1

7.3

13.1

18.3

1.2

4.2

7.4

10.1

13.2

18.4

1.3

4.3

7.5

10.2

13.3

19.1

1.4

4.4

7.6

10.3

13.4

19.2

2.1

4.5

7.7

2.2

7.8

2.3

6.1

7.9

2.4

6.2

2.5

6.3

3.1

6.4

8.2

3.2

7.1

8.3

3.3

7.2

8.4

7.10 8.1

10.4 11.1 11.2 11.3 12.1 12.2 12.3 12.4

14.1 14.2 15.1 15.2 16

18.1 18.2

19.3 19.4 19.5 19.6 19.7 19.8 19.9 19.10

AP1 AP2 AP3 AP4 AP = Additional Proto- Grey = Accepted provi-

col

sions

Non-accepted provisions

The 27 provisions not accepted by Denmark are the following:

•

Article 2§§1 and 4

Article 4§§4 and 5

Article 7§§1 to 10

Article 8§§2 to 4

Article 19§§1 to 10

Introductory remarks

This report is a factual assessment of the non-accepted provisions carried out at tech-

nical level by the following civil services of Denmark:

BEU, Alm.del - 2023-24 - Bilag 26: Orientering om Danmarks rapport til Europarådet om ikke-accepterede bestemmelser i Socialpagten

The Danish Ministry of Employment (competent authority as regards the Social

Charter), Ministry of Foreign Affairs, Ministry of Justice, Ministry for Industry,

Business and Financial Affairs, Ministry for Social Affairs and Housing, Ministry

for Children and Education, Ministry for Immigration and Integration, Ministry for

Taxation, Ministry for Transport, Ministry of Higher Education and Science, Minis-

try for Digitalisation and Gender Equality, Ministry for Senior Citizens, the Danish

Agency for Labour Market and Recruitment, the Danish Working Environment Au-

thority (WEA), the Danish Maritime Authority (DMA), and the Danish Financial

Supervisory Authority (DFSA).

The report provides information on the law and practice in Denmark, taking due note

of existing international standards and EU legislation. In the process of drawing up

this report, Danish authorities have relied on the appropriate case law of the ECSR

in the assessment of the provisions. The content of the report should be regarded as

a preliminary technical assessment for further dialogue and examination including

with the ECSR.

In accordance with Article 23 of the Social Charter, a copy of the report has been

communicated to the relevant national organisations who are members of the inter-

national organisations of employers and trade unions. Denmark will forward com-

ments from these organisations to the ECSR secretariat.

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Non-accepted provisions and the situation in Denmark (1961 So-

cial Charter)

Article 2

–

The right to just conditions of work

With a view to ensuring the effective exercise of the right to just conditions of work,

the Contracting Parties undertake:

Article 2§1

- to provide for reasonable daily and weekly working hours, the work-

ing week to be progressively reduced to the extent that the increase of productivity

and other relevant factors permit.

ECSR case law regarding article 2§1

Article 2§1 guarantees workers the right to reasonable limits on daily and weekly

working hours, including overtime. The aim is to protect worker’s safety and health.

The Committee examines the situation of workers “on call” or working discontinu-

ous hours under this provision. Adequate protection must also be afforded to part-

time workers in terms of this Article.

A reasonable period of work, including overtime, must be guaranteed through leg-

islation, regulations, collective agreements or any other binding means. In order to

ensure that the limits are respected in practice, an appropriate authority must su-

pervise whether the limits are being respected. These limits should apply to all cat-

egories of workers and can only be exceeded under exceptional circumstances (i.e.

natural disasters, situations of force majeure).

The Charter does not expressly define what constitutes reasonable working hours.

Situations are therefore assessed on a case-by-case basis: The Committee found that

the daily working time should in no circumstances (except for extraordinary situa-

tions) exceed 16 hours, even if, in compensation, it entails a limitation to the weekly

working time.

In assessing States Parties’ compliance with their obligations under Article 2§1,

the Committee considers that in addition to the number of working hours laid down

by law in that State, it also has to be taken into account the effect of collective

agreements and the nature and extent of an employer’s right to require overtime to

be worked.

Working overtime must not simply be left to the discretion of the employer or the

employee. The reasons for overtime work and its duration must be subject to regu-

lation. States Parties must set up an appropriate authority to supervise that daily

and weekly working time limits are respected in practice.

Article 2§1 provides for the progressive reduction of weekly working hours, to the

extent permitted by productivity increases and other relevant factors. These “other

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factors” may be the nature of the work and the

safety and health risks to which

workers are exposed. The widespread introduction of a working week of less than

40 hours has greatly reduced the need to shorten the working week.

For the purpose of protecting the private and family life of workers, the Committee

attaches importance to the fact that they must be clearly and duly informed about

any changes to their working hours.

Statutory provisions introducing or authorising the flexibility of working time have

been adopted in many States Parties. Working hours are calculated as an average

over given reference periods. The result of these schemes is that hours worked in

excess of the average number are compensated in practice by rest periods in the

course of other weeks within the reference period. The Committee considers that

these measures are not as such in breach of the Charter. Flexibility measures re-

garding working time are not as such in breach of the Charter.

In order to be found in conformity with the Charter, domestic laws or regulations

must fulfil three criteria:

(i) they must prevent unreasonable daily and weekly working time.

(ii) they must operate within a legal framework providing adequate guarantees.

(iii)they must provide for reasonable reference periods for the calculation of average

working time. Periods that do not exceed four to six months are acceptable in terms

of Article 2§1, and periods of up to a maximum of one year may also be acceptable

in exceptional circumstances. Objective or technical reasons or reasons concerning

the organisation of work must justify such an extension of the reference period.

A total working week (usual hours plus overtime) which, within the framework of

“flexibility regulations”, may attain up to sixty hours per week or exceed sixty hours

per week is unreasonable. The exclusion of certain categories of workers from stat-

utory protection against unreasonable working hours is a ground of non-conformity.

Seafarers’ right to reasonable weekly hours must be guaranteed by law.

The Committee requires more safeguards if the flexible working hours have been

agreed upon in collective agreements reached at the enterprise level.

Workers on flexible working time arrangements with long reference periods (i.e. one

year) should not be asked to work unreasonable hours or an excessive number of

long working weeks. Periods of on-call

duty (“périodes d’astreinte”) during which

the employee has not been required to perform work for the employer, although they

do not constitute effective working time, cannot be regarded as a rest period in the

meaning of Article 2 of the Charter. The assimilation of “périodes d’astreinte” to

rest periods constitutes a violation of the right to reasonable working time provided

BEU, Alm.del - 2023-24 - Bilag 26: Orientering om Danmarks rapport til Europarådet om ikke-accepterede bestemmelser i Socialpagten

in Article 2§1. The absence of effective work, determined a posteriori for a period of

time that the employee a priori did not have at their disposal, cannot constitute an

adequate criterion for regarding such a period a rest period both for the stand-by

duty

at the employer’s premises as well as for the on-call

time spent at home.

Danish remarks

Regulation of working hours is a core area in Denmark left for the social partners to

regulate. Therefore, daily and weekly working hours are primarily regulated by col-

lective agreements. In most areas, standard working hours are 37 hours per week

regardless of productivity and other factors.

In order to fulfill the EU-directive on working time there are some legal requirements

in the Act on Working Time. The act applies to areas not covered by collective agree-

ments:

•

A break during a work day exceeding 6 hours. The length of the break de-

pends on the purpose of the break, e.g. whether it is a break intended for a

meal.

•

Weekly working hours of maximum 48 hours on average, including over-

time.

•

An employee on night shift must not work more than 8 hours on average per

24-hour period.

In the working environment legislation there are legal requirements with regard to

rest periods:

•

A daily rest period of at least 11 consecutive hours.

One 24-hour period off per week, which must follow directly a daily rest

period. No more than six 24-hour periods between two 24-hour periods off

are allowed.

Article 2§4

- to provide for additional paid holidays or reduced working hours for

workers engaged in dangerous or unhealthy occupations as prescribed.

ECSR case law regarding article 2§4

States Parties to the Charter are required to eliminate risks in inherently dangerous

or unhealthy occupations. The Committee leaves the national legislature a certain

latitude in the choice of occupations to be classed as dangerous or unhealthy. How-

ever, some sectors and occupations must be deemed dangerous or unhealthy, such

as mining, quarrying, steel making and shipbuilding and occupations exposing em-

ployees to ionising radiation, extreme temperatures and noise.

Whilst the elimination of dangerous and unhealthy occupations is an ideal to strive

for, Article 2§4 requires that specific measures should be taken so long as these

occupations still exist.

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If, on the one hand, a constant improvement of the technical conditions in which

certain dangerous or unhealthy occupations are carried out represents a major fac-

tor for the reduction of the risk of accidents or disease, on the other hand, a decrease

in working hours and the granting of additional holidays are equally necessary, as

they allow for a reduced accumulation of physical and mental fatigue and a reduc-

tion in the exposure to risk, whilst at the same time granting workers longer periods

of rest.

In assessing States Parties’ compliance with Article 2§4,

the Committee examines

firstly what measures have been taken to progressively eliminate the inherent risks

in dangerous or unhealthy occupations. Secondly, it examines what compensatory

measures are applied to workers who are exposed to risks that cannot be or have not

yet been eliminated or sufficiently reduced, either in spite of the effective application

of the preventive measures or because they have not yet been applied.

Elimination or reduction of risks

The first part of Article 2§4 requires States Parties to eliminate risks in inherently

dangerous or unhealthy occupations. This part is closely linked to Article 3 of the

Charter (right to safe and healthy working conditions, see below), under which

States Parties undertake to pursue policies and take measures to improve occupa-

tional health and safety. Where appropriate, the Committee will take into account

the information provided and the conclusions reached in respect of Article 3 of the

Charter.

For example, a legislative provision to the effect that

the employees’ exposure to

such agents as radiation that causes hazards or risks to safety or health must be

reduced to such a level that no hazard or risk is caused to the employees’ safety,

health or reproductive health has been found in conformity with Article 2§4.

Self-employed workers must be sufficiently covered by occupational health and

safety regulations.

Measures in response to residual risks

Where risk elimination is not possible or where risks have not been reduced or elim-

inated, Article 2§4 mentions two forms of compensation, namely reduced daily work-

ing hours and additional paid holidays. The Committee stressed the importance of

reducing working hours and providing additional holidays both because of the need

for workers in hazardous situations to be alert and in order to limit the period of

exposure to safety and health risks.

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In view of the emphasis in this provision on health and safety objectives, however,

other approaches to reducing exposure to risks may also ensure conformity with the

Charter. Alternative approaches will be assessed on a case-by-case basis.

Under no circumstances can financial compensation be considered a relevant and

appropriate measure to achieve the aims of Article 2§4. Early retirement, wage in-

creases or food supplements are not relevant or appropriate measures to achieve the

aims of Article 2§4 of the Revised Charter.

Compensation measures such as one additional day’s holiday and a maximum

weekly working time of 40 hours have been considered inadequate in that they do

not offer workers exposed to risks regular and sufficient time to recover.

Measures intended to compensate workers for exposure to residual risks must be

regulated at the central level and must not be left to the agreements between the

social partners.

Danish remarks

According to the Holiday Act all workers are entitled to five weeks paid holiday per

year regardless of occupation. Additional rights concerning additional holidays and

time off due to dangerous or unhealthy occupations can be agreed upon by the social

partners.

Article 4 - The right to a fair remuneration

With a view to ensuring the effective exercise of the right to a fair remuneration, the

Contracting Parties undertake:

Article 4§4

- to recognise the right of all workers to a reasonable period of notice

for termination of employment.

ECSR case law regarding article 4§4

This paragraph forms part of the Article on remuneration, as the main purpose of

giving a reasonable notice is to allow the person concerned a certain time to look

for other work before their current employment ends, i.e. while they are still receiv-

ing wages.

The Committee will assess the national situation regarding Art 4§4 on the basis of

the following aspects:

1. The rules governing the setting of notice periods (or the level of compensa-

tion in lieu of notice):

a. according to the source of the rule, namely the law, collective agreements,

individual contracts and court judgments;

b. during any probationary periods, including those in the public service;

the Committee wishes to see an explicit minimum period of notice even if the

BEU, Alm.del - 2023-24 - Bilag 26: Orientering om Danmarks rapport til Europarådet om ikke-accepterede bestemmelser i Socialpagten

length of the probationary employment period is short or has recently been

reduced by law;

c. with regard to the treatment of employees in insecure jobs;

d.in the event of termination of employment for reasons outside the parties’

control (including insolvency, death of the employer if they are a natural

person); in principle such circumstances may not warrant failure to give

notice;

e. and any circumstances in which employees can be dismissed without no-

tice or compensation.

2. Acknowledgment, by law, collective agreement or individual contract, of

length of service, whether with the same employer or in circumstances of

successive precarious forms of employment relations;

The components of the employee’s remuneration during the notice period

The Committee has refrained from defining

in absolute terms the word “reasona-

ble”.

The right to reasonable notice of termination of employment applies to all categories

of workers independently of their status, including those in non–standard such as

fixed-term, temporary, part-time, intermittent, seasonal or complementary employ-

ment. It applies to civil servants and contractual staff in the civil service, to manual

workers and in all sectors of activity. It also applies during the probationary period

and upon early termination of fixed-term contracts. Domestic law must be broad

enough to ensure that no workers are left unprotected.

The only exception to the right of all workers to a reasonable period of notice con-

cerns immediate dismissal for serious offences set out in the Annex to the Charter.

It may be the result of the accumulation of several less serious breaches, if there

have been prior written warnings from the employer.

Danish remarks

Notice periods are generally not regulated by law, but by collective or individual

agreement. In Denmark the social partners play a crucial role regulating wages and

working conditions. The Danish labour market model builds on employers and work-

ers being organised in strong associations and unions that represent the broad inter-

ests of members in collective agreement negotiations. As far as possible, the state

refrains from intervening in the regulation of pay and working conditions.

The termination notice period applicable to both the worker and the employer must

be stated in the employment contract. If the employment is covered by a collective

agreement, then the termination notice for both parties typically follows the provi-

sions therein.

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If the employee is employed as per the Act on Salaried Employees (funktionær-

loven), then there are specific regulations that apply in conjunction with terminating

their employment. Pursuant to the Act on Salaried Employees, the employee has to

give their notice 1 month before their resignation. For employers, other regulations

apply depending on how long the employee has been employed.

The employer’s notice period is stipulated as per the Act on Salaried Employees

according to the following scheme:

Duration of employment

0–6 months

6 months

–

3 years

3–6 years

6–9 years

9+ years

Agreed probationary period of max. 3 months

Agreed temporary assignment of max. 1 month

Notice periods

1 month

3 months

4 months

5 months

6 months

14 days

No notice

The notice period of a salaried employee is based on a 1-month period. However, no

notice is required from the employee during the agreed probationary period of max.

3 months or if the parties have agreed to a temporary employment of max. 1 month.

Article 4§5

- to permit deductions from wages only under conditions and to the

extent prescribed by national laws or regulations or fixed by collective agreements

or arbitration awards.

ECSR case law regarding article 4§5

The deductions envisaged in Article 4§5 can only be authorised in certain circum-

stances which are well-defined in a legal instrument (law, regulation, collective

agreement or arbitration award). Therefore, workers should not be allowed to waive

their right to limitation of deductions from their wage, and the way in which such

deductions are determined should not be left at the disposal of the sole parties to the

employment contract. Article 4§5 also applies to civil servants and contractual staff

in the civil service.

Such deductions must be subject to reasonable limits and should not per se result in

depriving workers and their dependents of their means of subsistence. All forms of

deduction are covered by this provision, including trade union dues, disciplinary

fines, maintenance payments, repayment or wage advances, tax debts, compensation

for benefits in kind, wage assignments or transfers, etc.

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Appendix: It is understood that a Party may give the undertaking required in this

paragraph if the great majority of workers are not permitted to suffer from deduc-

tions from wages either by law or through collective agreements or arbitration

awards, the exceptions being those persons not so covered.

Danish remarks

The Danish labour market builds on employers and workers being organised in

strong associations and unions that represent the broad interests of members in col-

lective agreement negotiations. Pay and working hours are primarily regulated by

collective agreement or individual employment contracts. There is no statutory min-

imum wage in Denmark. As far as possible, the state refrains from intervening in the

regulation of pay and working conditions. Wages are not regulated by law but by

collective agreements for different types of jobs - or agreed upon by individual agree-

ments.

The pay may be set as hourly, daily or monthly rate or have been agreed upon in

other ways. The pay may, for example, consist of a piece-work rate, performance

related pay or similar. Some collective agreements will stipulate that the pay must

include an individually negotiated supplement to the minimum rate. Some collective

agreements stipulate that the pay is determined by negotiation with the company.

The total pay often exceeds the hourly rate because of other pay components.

Article 7 - The right of children and young persons to protection

With a view to ensuring the effective exercise of the right of children and young

persons to protection, the Contracting Parties undertake:

Article 7§1

- to provide that the minimum age of admission to employment shall

be 15 years, subject to exceptions for children employed in prescribed light work

without harm to their health, morals or education.

ECSR case law regarding article 7§1

In application of Article 7§1, domestic law must set the minimum age of admission

to employment at 15 years.

The prohibition on the employment of children under the age of 15 applies to all

economic sectors, including agriculture, and all places of work, including work

within family enterprises and in private households.

It also extends to all forms of economic activity, irrespective of the status of the

worker (worker, self-employed, unpaid family helper or other).

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The effective protection of the rights guaranteed by Article 7§1 cannot be ensured

solely by legislation; the legislation must be effectively applied in practice and rig-

orously supervised. The Labor Inspectorate has a decisive role to play in this respect.

Article 7§1 allows for an exception concerning light work, i.e. work which does not

entail any risk to the health, moral welfare, development or education of children.

States Parties are required to define the types of work which may be considered light,

or at least to draw up a list of those which are not. The definition of light work

authorized by legislation must be sufficiently precise. Work considered light ceases

to be so if it is performed for an excessive duration. States are therefore required to

set out the conditions for the performance of “light work” and the maximum permit-

ted duration of such work.

The Committee considers that children under the age of 15 and those who are subject

to compulsory schooling should not perform light work during school holidays for

more than 6 hours per day and 30 hours per week in order to avoid any risks that

the performance of such work might have for their health, moral welfare, develop-

ment or education.

Children who are still subject to compulsory schooling can carry out light work for

two hours on a school day and 12 hours a week in term time outside the hours fixed

for school attendance. However, a situation in which a child under the age of 15

works for between 20 and 25 hours per week during school term, or three hours per

school day and six to eight hours on weekdays when there is no school is contrary

to the Charter.

Children should be guaranteed at least two consecutive weeks of rest during the

summer holidays.

Regarding work done at home, States Parties are required to monitor the conditions

under which it is performed in practice.

Danish remarks

Denmark has laid down a number of detailed rules in this area of the law in order to

make sure that work carried out by young people under the age of 18 is fully safe

and sound.

According to article 28 and 29 in the Executive Order on the Work of Young Per-

sons

, youngsters at the age of 13 and 14, or young persons who are subject to

Arbejdstilsynets bekendtgørelse nr. 1049 af 30. maj 2021 om unges arbejde

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compulsory schooling, are only allowed to be employed with work tasks considered

“light” and not implying any danger or harm to the young person’s health and safety.

Article 29 of the Executive Order states that young persons who have turned 13 only

can be employed with the types of light work that is listed in appendix 7-9. Appendix

7 lists the work tasks that are considered “light” according to Danish law, while ap-

pendix 8 and 9 contains detailed exemptions to appendix 7.

Denmark has furthermore laid down specific rules on how many hours young per-

sons are allowed to work. To learn more about these rules please see more below

about the Danish remarks concerning article 7§3.

Article 7§2

- to provide that a higher minimum age of admission to employment

shall be fixed with respect to prescribed occupations regarded as dangerous or un-

healthy

ECSR case law regarding article 7§2

In application of Article 7§2, domestic law must set 18 as the minimum age of ad-

mission to prescribed occupations regarded as dangerous or unhealthy. There must

be an adequate statutory framework to identify potentially hazardous work, which

either lists such forms of work or defines the types of risk (physical, chemical, bio-

logical) which may arise during the course of that work.

However, if such work proves absolutely necessary for their vocational training,

children may be permitted to perform it before the age of 18, but only where such

work is carried out in accordance with conditions prescribed by the competent au-

thority. Children must have received training for performing dangerous tasks. The

Labour Inspectorate must monitor these arrangements.

Danish remarks

According to Danish law, young people under the age of 18 cannot take on employ-

ment that can be regarded as dangerous or unhealthy.

Danish law specifically states that the employer of young people under the age of 18

must ensure that work tasks carried out by youngsters must be performed in a way

that is fully healthy and safe for the young person in question. This follows from

article 4 in the Executive Order on the Work of Young Persons.

Furthermore, Denmark has introduced rules that ensure that such young persons as

a general rule cannot be employed with e.g. certain types of technical aid, most sub-

stances and materials, physical stress that can constitute a danger to their health and

development, and work that involves risks of crash or collapsing. These rules are

laid down in article 10 to 15 in the Executive Order on the Work of Young Persons.

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However, if work tasks that are carried out by a youngster who has turned 15, and

the work tasks forms a necessary part of his or her vocational training, these young

people are exempted from some of the abovementioned prohibitions. This applies to

the extent that is necessary according to the completion of the specific education or

vocational training. This follows from article 9 in the Executive Order.

The competent authority in Denmark has not prescribed any further specific condi-

tions, and it does not monitor such arrangements as mentioned in the case law. The

Danish Working Environment Authority oversees that employers of people under

the age of 18 comply with the rules in the area.

Article 7§3

- to provide that persons who are still subject to compulsory education

shall not be employed in such work as would deprive them of the full benefit of their

education

ECSR case law regarding article 7§3

Article 7§3 requires States Parties to ensure that children still subject to compulsory

education and employed to work are not deprived of the full benefit of their educa-

tion.

Only light work is permissible for schoolchildren under this provision. The notion of

“light work” is identical to that under article 7§1.

In the case of States Parties that have set the same age limit for admission to em-

ployment and the end of compulsory education, which is over 15 years, questions

related to light work are examined under Article 7§1. However, since Article 7§3 is

concerned with the effective exercise of the right to compulsory education, matters

relating thereto are assessed under that Article.

Adequate safeguards must be in place to allow the authorities (labour inspectorate,

social and education services) to protect children from work which could deprive

them of the full benefit of their education.

During school term, the time during which children may work must be limited so as

not to interfere with their attendance, receptiveness and homework.

Allowing children to work before school begins in the morning is, in principle, con-

trary to Article 7§3. Allowing children aged 15 years still subject to compulsory ed-

ucation to deliver newspapers from 6 a.m. for up 2 hours per day, 5 days per week

before school is not in conformity with the Charter.

In order not to deprive children of the full benefit of their education, States Parties

must provide for a mandatory and uninterrupted period of rest during school holi-

days. The assessment of compliance over the school year takes account of the length

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and distribution of holidays, the timing of uninterrupted periods of rest, the nature

and the length of the light work and of the control efficiency of the labour inspec-

torate.

States Parties must provide for a mandatory and uninterrupted period of rest during

school holidays. Its duration shall not be less than 2 consecutive weeks during the

summer holidays.

Danish remarks

Denmark has laid down specific rules for young persons aged between 13 and 15, or

who are still a subject to compulsory education, in order to ensure that employment

does not deprive them the full benefit from their schooling or education.

According to Danish law, such young persons are not allowed to work between 8 pm

and 6 am. That being said, Denmark has not laid down rules that forbid this category

of young people to deliver newspapers from 6 am in the morning before attending

school, as stated in the ECSR case law.

These young persons are allowed to do light work up until 2 hours per day on school

days. On non-school days, the daily limit for these young persons are 7 hours of work

per day. In addition, they are allowed to work a maximum of 12 hours during school

weeks, and 35 hours per week during weeks without school. This is stated in chapter

6 of the Executive Order on the Work of Young Persons.

About holiday rules, the Executive Order prescribes that young persons aged be-

tween 13 and 15, or who are still a subject to compulsory schooling, must

–

as far as

possible

–

enjoy an entirely work free period during the school summer holidays.

Article 7§4

- to provide that the working hours of persons under 16 years of age

shall be limited in accordance with the needs of their development, and particularly

with their need for vocational training.

ECSR case law regarding article 7§4

Under Article 7§4, domestic law must limit the working hours of persons under 18

years of age who are no longer subject to compulsory schooling. The limitation may

be the result of legislation, regulations, contracts or practice.

For persons under 16 years of age, a limit of eight hours a day or forty hours a week

is contrary to Article 7§4. However, for persons over 16 years of age, the same limits

are in conformity with Article 7§4.

Danish remarks

In Denmark, the question of working hours is a matter for agreement between the

social partners. The Act on Vocational Education §56 stipulates that the employer

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only in exceptional circumstances demand that the apprentice carries out tasks with-

out an educational purpose and only if the educational goals can still be achieved.

In addition, article 12 of the Executive Order on the Work of Young Persons states

that persons under the age of 18 cannot be exposed to any physical stress that can

harm their health or development in neither short nor long term. Furthermore, they

must not be exposed to unnecessary physical strain or unsuitable working positions

or movements.

When employing young persons under the age of 18 in Denmark, the employer must

ensure that the work assignment can be carried out in a way that is fully safe and

sound. Therefore, Denmark has laid down detailed rules on how many hours these

young persons are allowed to work. These rules can be found in article 16-20 in the

Executive Order on the Work of Young Persons.

Danish law furthermore contains rules stating that young persons, who are aged be-

tween 13 and 15, or who are subject to compulsory schooling, are only allowed to

work the number of hours that is described in chapter 6 of the Executive Order on

the Work of Young Persons. For further information, please see description of the

Danish

rules’

conformity with the Social Charter’s article 7§3.

When employing young persons who have turned 13, attention must be given to the

person’s age, development, health and schooling. This follows from article 42 in the

Executive Order on the Work of Young Persons.

Article 7§5

- to recognise the right of young workers and apprentices to a fair

wage or other appropriate allowances

ECSR case law regarding article 7§5

In application of Article 7§5, domestic law must provide for the right of young work-

ers to a fair wage and of apprentice’s appropriate allowances. This right may result

from statutory law, collective agreements or other means.

The “fair” or “appropriate”

character of the wage is assessed by comparing young

workers’ remuneration with the starting wage or minimum wage paid to adults (aged

eighteen or above).

In accordance with the methodology adopted under Article 4§1, wages taken into

consideration are those after deduction of taxes and social security contributions.

Young workers

The young worker’s wage may be less than the adult starting wage, but any differ-

ence must be reasonable. It must not be too substantial and ought to be for a limited

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time. For fifteen/sixteen-year-olds, a wage of 30% lower than the adult starting wage

is acceptable and for sixteen/eighteen-year-olds, the difference may not exceed 20%.

The adult reference wage must in all cases be sufficient to comply with Article 4§1

of the Charter.

If the reference wage is too low, even a young worker’s wage which

respects these percentage differentials is not considered fair.

Apprentices

Apprentices may be paid lower wages, since the value of the on-the-job training they

receive must be taken into account. However, the apprenticeship system must not be

deflected from its purpose and be used to underpay young workers. Accordingly, the

terms of apprenticeships should not last too long and, as skills are acquired, the

apprentice’s allowance should

be gradually increased throughout the contract pe-

riod, starting from at least one-third of the adult starting wage or minimum wage at

the commencement of the apprenticeship, and arriving at least at two-thirds at the

end. After two- or three-years’ vocational training, an apprentice is sufficiently

trained and should be considered as an adult worker for wage purposes.

Danish remarks

In Denmark, remuneration is a matter for agreement between the social partners. The

Act on Vocational Education §55 stipulates that the salary of apprentices should be

at least the salary as determined by the social partners. If the area is not covered by

collective agreement, the minimum salary will be determined by a board consisting

of two representatives from the employer side and two representatives from the

workers as well as a president appointed by the Danish Labour Court. A decision has

to be taken by a majority of the social partner representatives.

Article 7§6

- to provide that the time spent by young persons in vocational training

during the normal working hours with the consent of the employer shall be treated

as forming part of the working day

ECSR case law regarding article 7§6

Time spent on vocational training by young people during normal working hours

must be treated as part of the working day. Such training must, in principle, be done

with the employer’s consent − but not necessarily financed by the latter and be re-

lated to the

young person’s work.

Training time must thus be remunerated as normal working time (by either the em-

ployer or by public funds as the case may be), and there must be no obligation to

make up for the time spent in training, which would effectively increase the total

number of hours worked.

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Danish remarks

Denmark has laid down a rule similar to article 7§6 in the Social Charter. The Danish

rule states that if young people, who have turned 15, and who are not subject to

compulsory schooling, work as part of an education, the time spend receiving edu-

cation must be included in the daily and weekly working hours. This follows from

article 18 in the Executive Order on the Work of Young Persons.

Denmark does not have rules about consent from the employer. Besides, Denmark

has laid down a rule stating that, if the young person works for several employers,

the all-in-all working time must be calculated in total according to article 19 in the

before mentioned Executive order. Please also see article 7§4.

Article 7§7

- to provide that employed persons of under 18 years of age shall be

entitled to not less than three weeks' annual holiday with pay

ECSR case law regarding article 7§7

In application of Article 7§7, young persons under eighteen years of age must be

given at least four weeks’ annual holiday with pay.

The arrangements which apply are the same as those applicable to annual paid leave

for adults (Article 2§3).

Employed persons under 18 should not have the option of waiving their annual paid

holiday. They should not have the option of giving up their annual holiday for finan-

cial compensation either.

According to Article 7§7, employees incapacitated for work by illness or accident

during all or part of their annual leave must have the right to take the leave lost at

some other time - at least to the extent needed to secure to them the four weeks paid

annual leave provided for in the Charter. This principle applies in all circumstances,

regardless of whether incapacity begins before or during leave - and also in cases

where a company requires workers to take leave at a specified time

Danish remarks

Directive 2003/88/EC of the European Parliament and of the Council of 4 November

2003 concerning certain aspects of the organization of working time applies in Den-

mark. According to the directive, an employee is entitled to paid annual leave of at

least 4 weeks. The minimum period of paid annual leave may not be replaced by an

allowance in lieu, except where the employment relationship is terminated.

The Holiday Act does not contain special rules for employees under a certain age.

According to the Holiday Act an employee cannot validly waive his right to holiday

or the payment thereof

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In Denmark, all employees are entitled to 5 weeks of annual paid holiday. 4 weeks

may not be replaced by an allowance in lieu, except where the employment relation-

ship is terminated.

An employee who falls ill before the leave has the right to take the holiday at a later

time. An employee who falls ill during the holiday is entitled to compensatory holi-

day after up to 5 sick days, depending on the duration of the employment relation-

ship. The employee is thereby guaranteed 4 weeks of annual paid holiday. These

rules also apply even if the holiday is covered by a collective holiday closure. If the

employee cannot take the holiday before the end of the holiday taking period, as a

result of illness, maternity or another fixed holiday impediment, the holiday is trans-

ferred to the following holiday taking period.

Article 7§8

- to provide that persons under 18 years of age shall not be employed

in night work with the exception of certain occupations provided for by national laws

or regulations

ECSR case law regarding article 7§8

In application of Article 7§8, domestic law must provide that persons under eighteen

years of age are not employed in night work.

Laws or regulations must not cover only industrial work. Exceptions can be made as

regards certain occupations in very limited cases, if they are: explicitly provided in

domestic law; necessary for the proper functioning of the economic sector, and if the

number of young workers concerned is low.

It is up to domestic laws or regulations to define the period of time considered as

being “night”.

Appendix: It is understood that a Party may give the undertaking required in this

paragraph if it fulfils the spirit of the undertaking by providing by law the great

majority of persons under eighteen years of age shall not be employed in night work.

Danish remarks

It is a general rule in Danish law that young persons under the age of 18 cannot be

employed in night work.

Denmark has laid down specific rules about places and time of the day where young

people under the age of 18 are not allowed to work. For instance, they cannot be

employed within the opening hours in e.g. bakeries, kiosks, video stores and similar

shops between 6 pm and 6 am at weekdays, and between 2 pm and 6 am on Satur-

days, Sundays, holidays and bank holidays unless they are working there together

with an adult. This follows from article 13 in the Executive Order on the Work of

Young Persons.

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That said, Danish law contains a few exemptions to this. For instance, if the young

person works in a shopping center where there is either surveillance or safety guards

patrolling the center, they are allowed to work there on their own. Under such cir-

cumstances, young persons under the age of 18 can work in expanded hours of the

day, but never between 8 pm and 6 am.

Also, young persons who have turned 15, and who are not subject to compulsory

schooling, are allowed to work from 4 am in certain parts of confectionery or bakery

shops or in stables on farms within agriculture. This is stated in article 22 in the

Executive Order. A few more exemptions can be found in article 22 of the Executive

Order, for instance that this category of youngsters is allowed to work until midnight

in cinemas, theaters, hotels and at similar places.

Article 7§9

- to provide that persons under 18 years of age employed in occupa-

tions prescribed by national laws or regulations shall be subject to regular medical

control.

ECSR case law regarding article 7§9

In application of Article 7§9, domestic law must provide for compulsory regular

medical check-ups for persons under eighteen employed in those occupations spec-

ified by domestic laws or regulations.

These check-ups must be adapted to the specific situation of young workers and the

particular risks to which they are exposed. They may, however, be carried out by the

occupational health services, if these services have the specific training to do so.

The obligation entails a full medical examination on recruitment and regular check-

ups thereafter. The intervals between check-ups must not be too long: in this regard,

an interval of two years has been considered excessive.

The medical check-ups foreseen by Article 7§9 should consider the skills required

for the work envisaged.

Danish remarks

Denmark does not directly have any rules that require young persons under the age

of 18

–

employed in occupations prescribed by national law or regulations

–

to be

subject to regular medical control.

The Danish rules constitute a safeguard against putting young people in situations

where a regular medical control is necessary. This is because young people are not

allowed to be put in situations that can be harmful to their health or safety.

Article 7§10

- to ensure special protection against physical and moral dangers to

which children and young persons are exposed, and particularly against those result-

ing directly or indirectly from their work

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ECSR case law regarding article 7§10

Article 7§10 guarantees the right of children to be protected against physical and

moral dangers within and outside the working environment. This cover, in particu-

lar, the protection of children against all forms of exploitation and against the mis-

use of information technologies.

States Parties must prohibit the use of children in forms of exploitation such as sex-

ual exploitation, domestic/labour exploitation, including trafficking for the purposes

of labour exploitation, begging, or the removal of organs. They must also take

measures to prevent and assist street children. In all these cases, States Parties must

ensure not only that they have the necessary legislation to prevent exploitation and

protect children and young persons, but also that this legislation is effective in prac-

tice.

The fact that the right of children and young persons to social, legal and economic

protection is guaranteed under Article 17 of the Charter does not exclude the exam-

ination of certain relevant issues relating to the protection of children under Arti-

cle 7§10. The issues dealt with under Article 17 include the protection of children

from ill-treatment, including corporal punishment. However, the issue of corporal

punishment is examined under Article 7§10, where a State Party has not accepted

Article 17.

Personal scope

Article 7§10 is applicable to foreign children in an irregular situation on the terri-

tory of a State Party to the Charter as otherwise they would not be guaranteed their

fundamental rights and could be exposed to serious impairments of their rights to

life, health and psychological and physical integrity.

Likewise, measures should be taken to ensure the protection of unaccompanied or

separated minors. The failure to care for unaccompanied foreign minors present in

the country and take the necessary measures to guarantee these minors the special

protection against physical and moral hazards which threats their enjoyment of the

most basic rights, such as the right to life, to psychological and physical integrity

and to respect for human dignity.

Protection against sexual exploitation

An effective policy against commercial sexual exploitation of children should cover

the following three primary and interrelated forms: child prostitution, child pornog-

raphy and trafficking of children.

•

Child prostitution includes the offer, procurement, use or provision of a child

for sexual activities for remuneration or any other kind of consideration.

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•

Child pornography is given an extensive definition and takes account of the fact

that new technology has changed the nature of child pornography. It includes

the procurement, production, distribution, making available and possession of

material that visually depicts a child engaged in sexually explicit conduct or

realistic images representing a child engaged in sexually explicit conduct.

Trafficking of children is the recruiting, transporting, transferring, harboring,

delivering, selling or receiving children for the purposes of sexual exploitation.

In order to guarantee the right provided by Article 7§10, Parties must take specific

measures to prohibit and combat all forms of sexual exploitation of children, in par-

ticular children’s involvement in the

sex industry. This prohibition must be accom-

panied by an adequate supervisory mechanism and sanctions.

The following are minimum obligations:

•

Article 7§10 requires that all acts of sexual exploitation be criminalized; In this

respect, it is not necessary for a Party to adopt a specific mode of criminalization

of the activities involved, but it must rather ensure that criminal proceedings can

be instituted in respect of these acts. Furthermore, States Parties must criminal-

ize the defined activities with all children under 18 years of age irrespective of

lower national ages of sexual consent. Child victims of sexual exploitation

should not be prosecuted for any act connected with this exploitation.

•

a national action plan combating the sexual exploitation of children should be

adopted, as well as a monitoring mechanism on the sexual exploitation of chil-

dren and mechanisms for collecting statistical data on the sexual exploitation of

children.

Other measures to prohibit and combat all forms of sexual exploitation of children

include awareness raising.

With regard more specifically to accompanied or unaccompanied migrant girls,

these children are exposed to a heightened risk of becoming subject to sexual and

gender-based violence. States Parties should therefore put in place specific preven-

tive measures to address their needs in terms of living space, privacy and security

within reception centers and other accommodation facilities, considering their ex-

treme vulnerability. They should also provide for gender-sensitive reporting proce-

dures and support services allowing said children to report possible cases of vio-

lence and abuse and ask for assistance in a safe manner.

Protection against the misuse of information technologies

The internet is becoming one of the most frequently used tools for the spread of child

pornography.

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With a view to combating sexual exploitation of children through the use of internet

technologies States Parties must adopt measures in law and in practice, such as by

providing that internet service providers be responsible for controlling the material

they host, encouraging the development and use of the best monitoring system for

activities on the net (safety messages, alert buttons, etc) and logging procedures (fil-

tering and rating systems, etc.). Some States Parties have adopted a provision on

“child grooming” –

i.e. arranging a meeting with a child below the age of sexual

consent with the intent of committing a sexual offence.

Internet services providers should be under an obligation to remove or prevent ac-

cessibility to illegal material about which they have knowledge. Internet safety hot-

lines should be set up through which illegal material could be reported.

Taking into consideration the spread of sexual exploitation of children through the

means of new information technologies, States Parties should adopt measures in law

and in practice to protect children from their misuse, such as unprotected access to

harmful websites, audiovisual and print material.

Corporal punishment

The Committee considers that the fact that the right of children and young persons

to social, legal and economic protection is guaranteed under Article 17 of the Char-

ter does not exclude the examination of certain relevant issues relating to the pro-

tection of children under Article 7§10. In this connection, the Committee recalls hav-

ing held the scope of the said two provisions overlap to a large extent. Therefore,

when States Parties have not accepted Article 17§1 of the Charter, the Committee

will examine the issue relating to corporal punishment under Article 7§10.

Under the Charter, the prohibition of all forms of corporal punishment of children

is a measure that avoids discussions and concerns as to where the borderline would

be between what might be acceptable form of corporal punishment and what is not.

The Committee has clearly stated that all forms of corporal punishment must be pro-

hibited in all settings and this prohibition must have an explicit legislative basis. The

sanctions available must be adequate, dissuasive and proportionate.

Protection from other forms of exploitation

States Parties must prohibit the use of children in other forms of exploitation such

as, domestic/labour exploitation, including trafficking for the purposes of labour ex-

ploitation, begging, or the removal of organs. They must also take measures to pro-

tect and assist children in vulnerable situations, with particular attention to children

in street situations and children at risk of child labour, including those in rural ar-

eas.

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Street children are particularly exposed to trafficking and worst forms of child la-

bour. In this respect, the Committee has referred to the General Comment No. 21 of

the UN Committee on the Rights of the Child which provides authoritative guidance

to States on developing comprehensive, long-term national strategies on children in

street situations using a holistic, child rights approach and addressing both preven-

tion and response in line with the Convention on the Rights of the Child.

States Parties must ensure not only that they have the necessary legislation to pre-

vent exploitation and protect children and young persons, but also that the measures

adopted are fully effective in practice. States Parties must take measures to improve

the knowledge of relevant professionals (including police officers, social workers,

professionals working with children, labour inspectors, medical staff, public prose-

cutors, judges, the media and other groups concerned) about trafficking and the

rights of victims.

Danish remarks

According to the Executive Order on the Work of Young People (article 4), young

persons under the age of 18 should be cared especially for when choosing their work

tasks, and they cannot be employed with any work that constitutes a danger to their

health or safety.

It follows from article 5 in the Executive Order, that when employing young persons

under the age of 18, the employer must consider both the physical, biological, chem-

ical and psychological implications that the young person can be exposed to because

of the employment

–

in both long and short term.

Putting young persons under the age of 18 in situations as laid out in the case law

–

e.g. trafficking, prostitution and corporal punishment

–

is not compatible with Dan-

ish law. On the contrary, these matters are prohibited according to the Danish Crim-

inal Code.

Finally, Denmark has laid down detailed rules forbidding young persons under the

age of 18 to be employed in jobs that entail a particular risk of violence. Young

persons can only possess such positions, if they work alongside a person who is 18

years or older. This follows from article 13 in the Executive Order on the work of

young persons.

Article 8 - The right of employed women to protection

With a view to ensuring the effective exercise of the right of employed women to

protection, the Contracting Parties undertake:

Article 8§2

- to consider it as unlawful for an employer to give a woman notice of

dismissal during her absence on maternity leave or to give her notice of dismissal at

such a time that the notice would expire during such absence

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ECSR case law regarding article 8§2

Article 8§2 requires that it be unlawful to dismiss employees from the time they notify

the employer of their pregnancy to the end of their maternity leave. Article 8§2 ap-

plies equally to women on fixed-term and open-ended contracts. The notification of

the dismissal, by the employer, during the period of protection does not as such

amount to a violation of Article 8§2 provided that the period of notice and any pro-

cedures are suspended until the end of the leave. The same rules governing suspen-

sion of the period of notice and procedures must apply in the event of notice of dis-

missal prior to the period of protection.

However, the dismissal of a pregnant woman is not contrary to this provision in the

case of serious misconduct, the cessation of the firm’s activities or the expiry of a

fixed-term contract. These exceptions are strictly interpreted. Dismissing a worker

during maternity leave on other grounds, such as a collective redundancy, is not

compatible with Article 8§2.

Redress in case of unlawful dismissal

In cases of illegal dismissal, domestic law legislation must provide for adequate and

effective remedies, workers who consider that their rights in this respect have been

violated must be entitled to take their case before the courts. In the case of dismissal

contrary to this provision, the reinstatement of the women should be the rule. Excep-

tionally, if this is impossible (e.g. where the enterprise closes down) or the woman

concerned does not wish it, adequate compensation must be ensured.1126 Compen-

sation should be sufficient to deter the employer and compensate the employee. Any

ceiling on compensation that may preclude damages from being commensurate with

the loss suffered and sufficiently dissuasive are proscribed. Moreover, if there is a

ceiling on compensation for pecuniary damage, the victim must be able to seek un-

limited compensation for non-pecuniary damage through other legal avenues and

the courts competent for awarding compensation for pecuniary and non-pecuniary

damage must decide within a reasonable time.

Appendix: This provision shall not be interpreted as laying down an absolute prohi-

bition. Exceptions could be made, for instance, in the following cases:

a. if an employed woman has been guilty of misconduct which justifies break-

ing off the employment relationship;

b. if the undertaking concerned ceases to operate;

c. if the period prescribed in the employment contract has expired.

Danish remarks

The Act on Equal Treatment between Men and Women with regards to Employment

etc.

(hereafter the Act on Equal Treatment) implements the principle of equal

The Consolidated Act no. 645 of 8 June 2011 with later amendments.

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treatment and the right to non-discrimination on grounds of sex as foreseen in the

relevant EU-legislation such as the Maternity Leave Directive

, the Recast Directive

on Equal Treatment

and the Work Life Balance Directive

§ 9 of the Act on Equal Treatment prohibits an employer from dismissing an em-

ployee or subject the employee to other less favourable treatment, because the em-

ployee has made a claim to use the right to leave or has been absent in accordance

with §§ 6-14 of the Act on Maternity Leave, has made a request for changes in ac-

cordance with § 8 a, subparagraph 2 of this Act, or otherwise due to pregnancy,

maternity or adoption.

Thus, the prohibited act is closely linked to the

grounds

for dismissal and not the

dismissal itself.

§ 16, subparagraph 2, of the Act on Equal Treatment stipulates that if an employee

is dismissed in violation of § 9, without the employee being reinstated, or if the em-

ployee is subjected to other less favourable treatment, the employer must pay com-

pensation.

§ 16, subparagraph 4, of the Act on Equal Treatment stipulates a reverse burden of

proof, if a dismissal or other less favourable treatment takes place during pregnancy,

leave according to §§ 6-11, 13 and 14 of the Act on Maternity Leave and during

notice periods according to § 16, subparagraph 2, of the Act on Maternity Leave.

The reversal of the burden of proof means that it is the employer's responsibility to

prove that the dismissal or less favourable treatment is

not

due to matters related to

pregnancy, maternity leave or parental leave.

The Danish legislation is considered to fully comply with the EU legislation and case

law regarding the protection against discrimination and unfair dismissal due to preg-

nancy or maternity and parental leave.

Denmark considers that the requirement in Article 8§2 of the Charter is not ade-

quately matched by the dismissal protection which follows from the Act on Equal

Directive 92/85 EC of 19 October 1992 on the introduction of measures to encourage im-

provements in the safety and health at work of pregnant workers and workers who have re-

cently given birth or are breastfeeding (tenth individual Directive within the meaning of Ar-

ticle 16 (1) of Directive 89/391/EEC).

Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on

the implementation of the principle of equal opportunities and equal treatment of men and

women in matters of employment and occupation (recast).

Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019

on work-life balance for parents and carers and repealing Council Directive 2010/18/EU.

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Treatment and Equal Opportunities Act. Denmark

reads the Committee’s case law

as implying that dismissal is prohibited on almost any ground during the period con-

cerned. This is not the case in Denmark.

Article 8§3

- to provide that mothers who are nursing their infants shall be entitled

to sufficient time off for this purpose

ECSR case law regarding article 8§3

According to Article 8§3, all employed mothers (including domestic employees and

women working at home) who breastfeed their babies shall be granted time off for

this purpose.

Time off for nursing should in principle be granted during working hours, be treated

as normal working time and remunerated as such. However, provision for part time

work may be considered to be sufficient where loss of income is compensated by a

parental benefit or other allowance.

Time off for nursing must be granted at least until the child reaches the age of nine

months.

The Committee assesses States Parties’ compliance with Article

8§3 on a case-by-

case basis. The following measures have all been found to be in conformity with the

Charter: two half–hour breaks where the employer provides a nursery or room for

breastfeeding; one–hour daily breaks and legislation providing for two daily breaks

for a period of one year for breastfeeding or entitlement to begin or leave work ear-

lier.

Danish remarks

The Act on Maternity Leave was amended as of 1 July 2022.

Under the Act, expectant mothers have the right to leave 4 weeks prior to the ex-

pected birth of a child with state benefits at the level of sick leave benefits.

After the birth of the child the mother has the right to 42 weeks leave. 24 of the 42

weeks are with state benefits at the level of sick leave benefits. The right to state

benefits is subject to fulfilment of the employment criteria laid down in the Act of

Maternity Leave.

Under the Act, employees have a right to request flexible working arrangements,

including part-time work, upon their return from leave, and the employer must re-

spond to such requests while considering the needs of both the employer and the

employee. Employers shall provide reasons for any refusal of such a request or for

any postponement of such arrangements.

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Reduced working hours resulting from an agreement on flexible working arrange-

ments and the subsequent decrease in income may

–

to a certain extent

–

be compen-

sated by state benefits.

Thus, Danish legislation does not provide for an explicit right for mothers to have

time off for the purpose of breast-feeding once they return to work, but the legislation

is considered to fully comply with the EU-legislation and caselaw regarding the right

to maternity and parental leave.

Article 8§4

a) to regulate the employment of women workers on night work in industrial

employment;

b) to prohibit the employment of women workers in underground mining, and,

as appropriate, on all other work which is unsuitable for them by reason of

its dangerous, unhealthy, or arduous nature.

ECSR case law regarding article 8§4

Article 8§4 requires States Parties to regulate night work for pregnant women,

women who have recently given birth and women nursing their infants, in order to

limit the adverse effects on the health of the woman.

To comply with this provision, States Parties are not obliged to enact specific regu-

lations for women if they can demonstrate the existence of regulations applying with-

out distinction to workers of both sexes.

The regulations must:

•

allow night workers with family responsibilities to transfer to a day

work, and preclude employers from obliging such workers to move to

night work;

•

lay down conditions for night work of pregnant women, e.g. prior au-

thorisation by the Labour Inspectorate (when applicable), prescribed

working hours, breaks, rest days following periods of night work, the

right to be transferred to daytime work in case of health problems linked

to night work, etc.

In order to ensure non-discrimination on the grounds of gender, employed women

during the protected period may not be placed in a less advantageous situation when

an adjustment of their working conditions is necessary in order to ensure the re-

quired level of the protection of health. In particular, in cases where women cannot

be employed in their workplace due to health and safety concerns and as a result,

are transferred to another post or, should such a transfer not be possible, are

granted leave instead, States Parties must ensure that during the protected period,

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they are entitled to their average previous pay or provided with a social security

benefit corresponding to 100% of their previous average pay. Further, women

should have the right to return to their previous employment. This right should be

guaranteed by law.

Danish remarks

In Denmark, there are no specific rules on night work in industry. Similarly, there is

no gender distinction in the rules on night work. However, there are general rules

protecting pregnant women in connection with night work.

Employers must ensure that pregnant women's night work is planned and organized

in a way that does not pose a risk to their health or safety. This means that the em-

ployer must consider that there may be a need for pregnant employees to have their

working hours changed, for example in the form of shorter shifts, restrictions on

night work or exemption from night work.

The determination of working time, including night work, is largely a matter for the

social partners in Denmark.

It is a legal requirement for workplaces to offer their employees a free health check

before they start night work and at regular intervals thereafter, not exceeding 3 years.

This applies to both women and men.

In Denmark there is no mining. Therefore, paragraph b is not relevant.

For these reasons, Denmark considers that the requirement in Article 8§4 of the

Charter is not adequately matched by Danish rules and regulations.

Article 19 - The right of migrant workers and their families to

protection and assistance

With a view to ensuring the effective exercise of the right of migrant workers and

their families to protection and assistance in the territory of any other Contracting

Party, the Contracting Parties undertake:

Article 19§1

- to maintain or to satisfy themselves that there are maintained ade-

quate and free services to assist such workers, particularly in obtaining accurate in-

formation, and to take all appropriate steps, so far as national laws and regulations

permit, against misleading propaganda relating to emigration and immigration

ECSR case law regarding article 19§1

This provision guarantees the right to free information and assistance to nationals

wishing to emigrate and to nationals of other States Parties who wish to immigrate.

Information should be reliable and accurate and cover issues such as formalities to

be completed and the living and working conditions they may expect in the country

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of destination (such as vocational guidance and training, social security, trade union

membership, housing, social services, education and health).

Free information and assistance services for migrants must be accessible in order

to be effective. While the provision of online resources is a valuable service, due to

the potential restricted access to the Internet of migrants, other means of information

are necessary, such as helplines and drop-in centres.

Another obligation under this provision is that States Parties must take measures to

prevent misleading propaganda relating to immigration and emigration. Such

measures should prevent the communication of misleading information to nationals

leaving the country and act against false information targeted at migrants seeking

to enter.

To be effective, action against misleading propaganda should include legal and

practical measures to tackle racism and xenophobia as well as women trafficking.

Such measures, which should be aimed at the whole population, are necessary inter

alia to counter the spread of stereotyped assumptions that migrants are inclined to

crime, violence, drug abuse or disease. In order to combat misleading propaganda,

there must be an effective system to monitor discriminatory, racist or hate-inciting

speech, particularly in the public sphere.

States Parties must also take measures to raise awareness about misleading propa-

ganda amongst law enforcement officials, such as awareness training of officials

who are in first contact with migrants

Danish remarks

When it comes to information on rules and conditions for foreign workers in order

to obtain a residence and work permit in Denmark, all relevant information is avail-

able in English on the website of the immigration authorities

Articles 19§§2 to 5

Denmark has not yet been able to assess whether these provisions could be accepted,

but an attempt will be made to make an assessment ahead of the ECSR visit to Den-

mark on 10 November.

Article 19§6

- to facilitate as far as possible the reunion of the family of a foreign

worker permitted to establish himself in the territory;

ECSR case law regarding article 19§6

This provision obliges States Parties to allow the families of migrants legally estab-

lished in State Party territory to join them. The worker’s children entitled to family

www.Newtodenmark.dk.

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reunion are those who are dependent, unmarried, and who fall under the legal age

of majority in the receiving State.

“Dependent” children are understood as being those who have no independent ex-

istence outside the family group, particularly for economic or health reasons, or

because they are pursuing unpaid studies.

Where the national legislation prescribes a lower age, it suffices in practice that

applications for reunion in respect of children up to 21 years of age should be gen-

erally accepted.

Where children aged 18 to 21 are not only disqualified in law from family reunion

but also denied it in practice, the Committee assesses the proportion of children aged

18 to 21 refused family reunion.1967. A high proportion of children aged 18 to 21

refused family reunion leads to a finding of non-conformity with Article 19§6 in this

respect.

Danish remarks

Denmark has several work-related schemes, under which foreign workers can apply

for a residence and work permit depending on the nature of the planned activity in

Denmark. The Danish Aliens Act entails provisions allowing foreign workers to be

accompanied by their family members.

Article 19§7

- to secure for such workers lawfully within their territories’ treat-

ment not less favorable than that of their own nationals in respect of legal proceed-

ings relating to matters referred to in this article.

ECSR case law regarding article 19§7

Under this provision States Parties must ensure that migrants have access to courts,

to lawyers and legal aid on the same conditions as their own nationals. This obliga-

tion applies to all legal proceedings concerning the rights guaranteed by Article 19

(i.e. pay, working conditions, housing, trade union rights, taxes).

More specifically, any migrant worker residing or working lawfully within the terri-

tory of a State Party who is involved in legal or administrative proceedings and does

not have counsel of their own choosing should be advised that they may appoint

counsel and, whenever the interests of justice so require, be provided with counsel,

free of charge if they do not have sufficient means to pay the latter, as is the case for

nationals or should be by virtue of the European Social Charter. Under the same

conditions (involvement of a migrant worker in legal or administrative proceedings),

whenever the interests of justice so require, a migrant worker must have the free

assistance of an interpreter if they cannot properly understand or speak the national

language used in the proceedings and have any necessary documents translated.

Such legal assistance should be extended to obligatory pre-trial proceedings.

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Danish remarks

General access to the Danish Courts

A civil legal claim may

–

subject to certain preconditions

–

be pursued by instituting

legal proceedings at the Danish courts. In order for someone to bring an action before

the courts, he or she must have legal interest. The plaintiff is considered to have legal

interest if the plaintiff’s claim is legal and may

be assessed according to law, if the

plaintiffs’ claim is of current interest, and if the plaintiff has a concrete interest in

the case.

In addition, all decisions from immigration authorities related to the right to reside

in Denmark as a worker can be appealed to the Immigration Appeals Board, which

is an independent administrative body. Decision from the Immigration Appeals

Board can be brought before the Danish Courts.

Access to the industrial disputes’ procedure

In Denmark access to the industrial disputes’

procedure is generally reserved for

trade unions, employer's organizations or employers who are not a member of an

employer's organization. Danish nationals and workers from abroad have equal op-

portunities with regard to membership of a Danish trade union and, accordingly, ac-

cess to industrial disputes procedure and the Danish Labour Court.

Article 19§8

- to secure that such workers lawfully residing within their territories

are not expelled unless they endanger national security or offend against public in-

terest or morality;

ECSR case law regarding article 19§8

This provision obliges States Parties to prohibit by law the expulsion of migrants

lawfully residing in their territory, except where they are a threat to national secu-

rity, or offend against public interest or morality. In cases where a fundamental right

such as the right of residence is at stake, the burden of proof rests with the Govern-

ment: to demonstrate that a person does not reside legally on its territory.

Such expulsions can only be in conformity with the Charter if they are ordered by a

court or a judicial authority, or an administrative body whose decisions are subject

to judicial review. Any such expulsion should only be ordered in situations where

the individual concerned has been convicted of a serious criminal offence, or has

been involved in activities which constitute a substantive threat to national security,

the public interest or public morality. Expulsion orders must be proportionate, con-

sidering

all aspects of the individual’s

behavior as well as the circumstances and the

length of time of their presence in the territory of the State.

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The individual’s connection or ties with both the host state and the state of origin,

as well as the strength of any family relationships that they may have formed during

this period, must also be considered to determine whether expulsion is proportion-

ate.

Risks to public health are not in themselves risks to public order and cannot consti-

tute a ground for expulsion, unless the person refuses to undergo suitable treatment.

The fact that a migrant worker is dependent on social assistance cannot be regarded

as a threat against public order and cannot constitute a ground for expulsion.

States Parties must ensure that foreign nationals served with expulsion orders have

a right of appeal to a court or other independent body.

Collective expulsions are not in conformity with the Charter; decisions on expul-

sion may be made only on the basis of a reasonable and objective examination of the

particular situation of each individual.

National legislation should reflect the legal implications of Articles 18§1 and 19§8

as well as the case law of the European Court of Human Rights: foreign nationals

who have been resident for a sufficient length of time in a State, either legally or

with the tacit acceptance of their illegal status by the authorities in view of the host

country’s needs, should be covered by the rules protecting from deportation.

Danish remarks

Initially it is noted, that the rules regarding expulsion in the Danish Aliens Act do

not distinguish between immigrants in general and foreign workers.

Sections 22-24 of the Danish Aliens Act regulate the rules for expulsion, when an

alien is convicted of a criminal offence. As a main rule, the access to expulsion de-

pends on the length of the alien’s stay in Denmark and the seriousness of the com-

mitted crime. The national courts decide whether there are grounds for an expulsion

order based on an individual assessment in connection with the criminal proceedings.

Furthermore, it follows by section 25 (1) of the Danish Aliens Act, that an alien can

be expelled if the alien can be considered a danger to national security. The decision

is made by the Ministry of Immigration and Integration and can be brought before

the courts according to chapter 7 in the Danish Aliens Act. It also follows by section

25 (2) in the Danish Aliens Act, that an alien can be expelled if the alien must be

considered a serious threat to public order, safety or health. The decision is made by

the Danish Immigration Service with the right to appeal to the Immigration Appeals

Board. In addition, sections 25-25b in the Danish Aliens Act contain rules regarding

expulsion of aliens with less than six months lawful residency in Denmark. These

rules are aimed at,

inter alia,

criminality and illegal stay/work in cases which have

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been settled with a fine. These decisions are made by the Danish Immigration Ser-

vice with the right to appeal to the Immigration Appeals Board.

All decisions on expulsion must take place within the scope of Denmark’s interna-

tional obligations.

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State of ratification of the Revised Social Charter

The following articles are covered by this report:

•

Articles and provisions which differ from the 1961 Social Charter

Articles where Denmark has a reservation

New articles

Articles which are identical to the ones in the 1961 Social Charter and which have

been ratified by Denmark in 1965 are left out of this section.

Article 2 - The right to just conditions of work

Article 2§1

to provide for reasonable daily and weekly working hours, the work-

ing week to be progressively reduced to the extent that the increase of productivity

and other relevant factors permit;

Danish remarks

Denmark has

not

ratified this provision in the original Social Charter.

Regulation of working hours is a core area left for the social partners to regulate.

Therefore, daily and weekly working hours are primarily regulated by collective

agreements. In most areas standard working hours are 37 hours per week regardless

of productivity and other factors.

In order to fulfill the EU-directive on working time there are some legal requirements

in the act on working time. The act applies to areas not covered by collective agree-

ments:

•

A break during a work day exceeding 6 hours. The length of the break de-

pends on the purpose of the break, e.g. whether it is a break intended for a

meal.

•

Weekly working hours of maximum 48 hours on average, incl. overtime.

•

An employee on night shift must not work more than 8 hours on average per

24-hour period.

In the working environment legislation there are legal requirements with regard to

rest periods:

•

A daily rest period of at least 11 consecutive hours.

One 24-hour period off per week, which must follow directly a daily rest

period. No more than six 24-hour periods between two 24-hour periods off

are allowed.

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Denmark has, in accordance with EU legislation

, established rules on a minimum

number of hours of rest for the seafarer, and not rules on working time.

Article 2§3

to provide for a minimum of four weeks' annual holiday with pay.

Danish remarks

Denmark has ratified the provision in the original Social Charter. The Revised Social

Charter increases the paid annual leave from 2 to 4 weeks.

According to the Danish Holiday Act, all employees are entitled to five weeks paid

holiday per year regardless of occupation. 4 of the weeks cannot be replaced by a

cash allowance in the current employment relationship.

An employee who falls ill before the holiday has the right to take the holiday at a

later time. An employee who falls ill during the holiday is entitled to compensatory

holiday after up to 5 sick days, depending on the duration of the employment rela-

tionship. The wage earner is thereby guaranteed 4 weeks of annual paid holiday.

These rules apply even if the holiday is covered by a collective holiday closure. If

the employee cannot take the holiday before the end of the holiday period due to

illness, maternity or another prescribed holiday impediment, the holiday is trans-

ferred to the subsequent holiday period.

Additional rights concerning additional holidays can be agreed upon by the social

partners.

Seafarers’

rights to holiday follow the Danish Holiday

Act.

Article 2§4

to eliminate risks in inherently dangerous or unhealthy occupations,

and where it has not yet been possible to eliminate or reduce sufficiently these risks,

to provide for either a reduction of working hours or additional paid holidays for

workers engaged in such occupations

Danish remarks

In Denmark, the purpose of the working environment rules is to ensure a safe and

healthy physical and mental working environment that is at all times in accordance

with the technical and social development in the society. This follows from article 1

in the Executive Order of the Working Environment Act.

Council Directive 1999/63/EC of 21 June 1999 concerning the Agreement on the organi-

zation of working time of seafarers concluded by the European Community Shipowners'

Association (ECSA) and the Federation of Transport Workers' Unions in the European Un-

ion (FST) - Annex

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According to article 38 in the abovementioned Executive Order, recognized norms

or standards concerning safety or health must be followed.

In the case where all rules, recognized norms or standards has been followed, but the

work still constitutes a particular danger to the employees’ health and safety, Den-

mark has laid down a rule that ensures that working hours can be reduced.

According to article 7§3 in the Executive Order on the Execution of the Work, The

Danish Working Environment Authority can require for breaks and limited working

hours for work that constitutes a particular danger to the employees’ health and

safety, and where it has not been possible to counter this danger in any other way.

The provision also contains requirements for breaks and limited working hours when

special work clothes and personal protective equipment are used.

It is not in accordance with Danish law to just reduce the working hours if it is pos-

sible to eliminate or reduce the risk of the work in other ways.

Furthermore, Danish law contains a provision regarding reduced working hours in

the Executive Order on Work with Code-numbered Products. According to article

17, it is not permitted to work with respiratory protection for more than 6 hours on a

working day when using an air-supplied respiratory protection and 3 hours on a

working day when using a filtered respiratory protection. In addition, working hours

must be reduced if there are particularly stressful situations due to the nature of the

work, temperature conditions or the like.

Article 2§6

to ensure that workers are informed in written form, as soon as pos-

sible, and in any event not later than two months after the date of commencing their

employment, of the essential aspects of the contract or employment relationship.

Danish remarks

This provision on written contracts is new. The purpose of this provision is to ensure

that employees are informed about essential aspects of their employment.

In Denmark it is required that workers are informed in writing no later than seven

days after the date of commencing their employment of the essential aspects of the

contract or employment relationship. Further detailed information must in some

cases be given to the employee no later than one month after the beginning of the

employment relationship.

Seafarers’

rights to a written contract is enshrined in ILOs Maritime Labour Con-

vention which Denmark has ratified and implemented.

Article 2§7

to ensure that workers performing night work benefit from measures

which take account of the special nature of the work.

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Danish remarks

This provision is new. The definition of night work is left to national law or practice.

Denmark has a reservation to this provision at the time of signing.

Night

work is a natural part of seafarers' working conditions. During the ship's voy-

age it might be impossible to let seafarers benefit from special measures, as these

could contaminate the rights of other seafarers or the voyage. Furthermore, it is un-

clear what such measures could be in relation to the provision.

Article 3 - the right to safe and healthy working conditions

Article 3§1

-This

paragraph obliges the Parties to formulate, implement and peri-

odically review a coherent national policy on occupational safety, occupational

health and the working environment.

Danish remarks

Denmark has ratified the provision in the original Social Charter. However, this pro-

vision is new in the Revised Social Charter. It states that member states must formu-

late a coherent occupational health and safety policy.

This condition already follows from ILO Convention No. 187, where each Member

State shall promote a safe and healthy working environment by formulating a na-

tional policy. The national policy on occupational safety and health shall be devel-

oped in accordance with the principles set out in Article 4 of the ILO Occupational

Safety and Health Convention, 1981 (No. 155).

In Denmark, there is a long-standing practice that when an existing health and safety

policy expires, it is replaced by a new one. This applies e.g. political agreements on

OSH.

For seafarers, similar requirements can be derived from ILOs Maritime Labour Con-

vention which Denmark has ratified and implemented.

Article 3§4

to promote the progressive development of occupational health ser-

vices for all workers with essentially preventive and advisory functions.

Danish remarks

This is a new provision. According to the appendix, it is left to the national level to

set the rules on the functioning, organization and working conditions of the health

service.

There are seven occupational medicine clinics in Denmark, which have specialized

departments with, among other things, specialized doctors in hospitals throughout

the country

–

all part of the public hospital system. An employee can be referred for

examination at an occupational medicine clinic by a doctor, a trade union or the oc-

cupational health and safety organization. Occupational medicine clinics also

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provide advice to employees, for example on preventive measures as part of the ex-

amination. It is free of charge for the employee to be examined and assessed at an

occupational medicine clinic. It is based on a medical assessment and falls within to

the doctor’s examination and treatment competence under the health legislation to

assess the need for continued health checks of an employee.

In addition, the Danish Working Environment Authority has Executive Order No.

1165 of 16 December 1992 on occupational medical examinations under the Work-

ing Environment Act. Regulation under the Working Environment Act, including on

occupational medical examinations, are developed in Denmark by the responsible

ministry in cooperation with the social partners.

It is thus the opinion of the Danish authorities that the Danish health system with

occupational medicine clinics, together with the legislation on occupational medi-

cine examinations under the Working Environment Act, establishes an occupational

health service system for all workers in relation to employees.

As regards seafarers, Denmark already has a world leading occupational health ser-

vice for seafarers in the Danish Centre of Maritime Health Service and has also es-

tablished occupational health and safety councils for the maritime area as well as for

fisheries.

Article 4

–

The right to a fair remuneration

Article 4§4

to recognize the right of all workers to a reasonable period of notice

for termination of employment.

Danish remarks

Denmark has not ratified the provision in the original Social Charter.

In Denmark the social partners play a crucial role regulating wages and working

conditions. The Danish labour market model builds on employers and workers being

organised in strong associations and unions that represent the broad interests of

members in collective agreement negotiations. Pay and working hours are primarily

regulated by collective agreement or individual employment contracts. There is no

statutory minimum wage in Denmark. As far as possible, the state refrains from in-

tervening in the regulation of pay and working conditions.

All workers do not have a notice period in Denmark. This matter is a core area left

for the social partners to regulate.

As regards to seafarers, duration of minimum notice periods for seafarers and ship-

masters are in accordance with the provisions of ILOs Maritime Labour Convention

which Denmark has ratified and implemented.

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Article 4§5

- to the authorization of deductions from wages only under the condi-

tions and to the extent prescribed by law or administrative regulations or established

by collective agreements or arbitration decisions.

Danish remarks

Denmark has not ratified the provision in the original Social Charter.

In Denmark the social partners play a crucial role regulating wages and working

conditions. The Danish labour market model builds on employers and workers be-

ing organised in strong associations and unions that represent the broad interests of

members in collective agreement negotiations. Pay and working hours are primar-

ily regulated by collective agreement or individual employment contracts. There is

no statutory minimum wage in Denmark. As far as possible, the state refrains from

intervening in the regulation of pay and working conditions. In Denmark it is possi-

ble to deduct wages under certain circumstances in accordance with an individual

contract.

As regards to seafarers, a similar provision regarding deduction from remuneration

for seafarers and shipmasters is enshrined in ILOs Maritime Labour Convention

which Denmark has ratified and implemented.

Article 7

–

The right of children and young persons to protection

Denmark has

not

ratified article 7 in the original Social Charter.

Article 7§2

- to provide that the minimum age of admission to employment shall

be eighteen years with respect to prescribed occupations regarded as dangerous or

unhealthy;

Danish remarks

According to Danish law, young people under the age of 18 are not allowed to take

on employment that can be regarded as dangerous or unhealthy.

Danish law specifically states that the employer of young people under the age of 18

must ensure that work assignments carried out by youngsters must be performed in

a way that is fully healthy and safe for the young person in question. This follows

from article 4 in the Executive Order on the Work of Young Persons.

Denmark has also laid down rules that ensure that such young persons as a general

rule cannot be employed with e.g. certain types of technical aid, most substances and

materials, physical stress that can constitute a danger to their health and develop-

ment, and work that involves risks of crash or collapsing. These rules are laid down

in article 10 to 15 in the Executive Order on the Work of Young Persons.

Furthermore, Denmark has adopted statutory framework in Appendix 1 to the Exec-

utive Order on the Work of Young Persons. The appendix contains a number of

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things that young persons under the age of 18 as the main rule are not allowed to

handle or work with.

The list is not exhaustive, but it follows from article 10 in the Executive Order on

the Work of Young Persons that youngsters under the age of 18 are not allowed to

take on work or work assignments that contains similar risks as the ones mentioned

in Appendix 1.

Denmark also upholds rules stating that young persons who have turned 15, are ex-

empted from some of the abovementioned prohibitions if the work assignments con-

stitute a necessary part of his or her vocational training. This applies to the extent

that is necessary according to the completion of the specific education or vocational

training. This follows by article 9 in the Executive Order.

The competent authority in Denmark has not prescribed any further specific condi-

tions, and it does not monitor such arrangements as mentioned in the case law, but

the Danish Working Environment Authority oversees that employers of people under

the age of 18 comply with the rules in the area.

Article 7§4

- to provide that the working hours of persons under eighteen years of

age shall be limited in accordance with the needs of their development, and particu-

larly with their need for vocational training;

Danish remarks

Article 12 in the Danish Executive Order on the Work of Young Persons states that

persons under the age of 18 cannot be exposed to any physical stress that can harm

their health or development in neither short nor long term. Therefore, they cannot

not be exposed to unnecessary physical strain or unsuitable working positions or

movements. Employers must always take any specific young employees needs of

development in to consideration when choosing work tasks for he or she.

When employing young persons under the age of 18 in Denmark, the employer must

ensure that their work tasks can be carried out in a way that is fully safe and sound.

Therefore, Denmark has laid down detailed rules on how many hours these young

people are allowed to work.

For instance, Danish law states that young persons, who have turned 15 and who are

not a subject to compulsory schooling, are not allowed to exceed the number of

working hours that adults carrying out the same job may work. The same rule also

specifically states that these youngsters are not allowed to work more than 8 hours a

day and 40 hours per week. Furthermore, when a young person at this age works 8

hours a day, the working time must be in continuation.

More rules concerning working hours for young persons at this age can be found in

article 16-20 in the Executive Order on the Work of Young Persons.

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When it comes to young persons, aged between 13 and 15, or who are subject to

compulsory schooling, Danish law states that these youngsters only are allowed to

work the number of hours that is described in chapter 6 of the Executive Order on

the Work of Young Persons. As the main rule in that chapter states, young persons

at this age are only allowed to work two hours per day on school days and 7 hours

per day during non-school days.

The Danish rules also states, that when employing young persons who have turned

13, when letting them participate in cultural or similar events, care must be taken to

the young person’s age, development, health and schooling.

This follows from article

42 in the before mentioned Executive Order.

There is a difference in the age limit between Denmark and the Revised Social Char-

ter when it comes to the maximum of an 8 hour daily working time and a forty-hour

working week.

Article 7§5

–

to recognise the right of young workers and apprentices to a fair

wage or other appropriate allowances;

Danish remarks

In relation to Article 7, paragraph 5, which requires the party to recognise the right

of young workers and apprentices to a fair wage or other appropriate allowances, it

should be noted that in Denmark, remuneration of apprentices is a matter for agree-

ment between the social partners.

Section 55 of the Act on Vocational Education stipulates that the salary of appren-

tices should be at least the salary as determined by the social partners. If the area is

not covered by collective agreement, the minimum salary will be determined by a

board consisting of two representatives from the employer side and two representa-

tives from the workers as well as a president appointed by the Danish Labour Court.

A decision has to be taken by a majority of the social partner representatives.

Article 8

–

The right of employed women to protection of mater-

nity

With a view to ensuring the effective exercise of the right of employed women to

the protection of maternity, the Parties undertake:

Danish remarks

Denmark has not ratified paragraphs 2-4 in the original Social Charter. Paragraphs 2

and 4 are changed in the revised Social Charter. Paragraph 5 is a new provision.

Paragraphs 2-5 deal with the right of employed women to maternity protection by:

•

deeming it unlawful for an employer to dismiss a female employee during

her maternity leave,

entitling breastfeeding mothers to adequate time off for breastfeeding,

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•

to regulate night work by pregnant, new or breastfeeding mothers; and

prohibit female workers from engaging in mining or other similarly hazard-

ous work.

Article 8§1

to provide either by paid leave, by adequate social security benefits

or by benefits from public funds for employed women to take leave before and after

childbirth up to a total of at least fourteen weeks;

Danish remarks

Denmark has ratified this article in the original Social Charter. The Revised Social

Charter extends the period from 12 to 14 weeks.

Danish legislation provides for employed women to take leave before and after child-

birth up to a total of 24 weeks. During leave the woman is entitled to maternity leave

benefits at the level of sick leave benefits, provided she meets the criteria laid down

in the Maternity Leave Act.

The right to pay from the employer is regulated by the Social Partners either through

collective agreements or individual employment contracts.

However, female salaried employees

not

covered by a collective agreement are en-

titled to half pay for 14 weeks after the birth of the child under the Act on Salaried

Employees.

According to Order no. 1011 of 28 June 2022 on maternity/paternity benefits for

seafarers, female seafarers are entitled to maternity allowance from the time when it

is estimated that there will be 4 weeks until the birth and maternity allowance can be

granted for up to 28 weeks after the birth.

Article 8§2

- to consider it as unlawful for an employer to give a woman notice of

dismissal during the period from the time she notifies her employer that she is preg-

nant until the end of her maternity leave, or to give her notice of dismissal at such a

time that the notice would expire during such a period.

Danish remarks

Denmark has not ratified this provision in the original Social Charter. The provision

has been amended in the Revised Social Charter with the addition of:

“the

period

from the time she notifies her employer that she is pregnant”.

Denmark notes that under the Act on Equal Treatment between Men and Women in

relation to Employment etc. employers may not lawfully dismiss an employee or

treat the employee less favorably on grounds of pregnancy, maternity, paternity or

parental leave. This is considered direct discrimination under both Danish and EU-

law.

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Thus, an employer may not dismiss an employee or subject her/him to other less

favorable treatment, because she/he has made a claim to exercise the right to leave,

has been absent in accordance with the Maternity Act, has submitted a request for

flexible working arrangements in accordance with § 8 a, paragraph 2, of the Mater-

nity Act, or otherwise due to pregnancy, maternity or adoption.

However, there is no absolute prohibition against dismissals during pregnancy of

leave and such cases are determined on their individual merits and in accordance

with the rules of burden of proof.

1) If an employee is dismissed during pregnancy or rights-based leave under

the Maternity Leave, or during periods of notice of such leave the burden of

proof is reversed. This means that the employer must prove that the dismis-

sal is

not

due to the worker being pregnant or on leave otherwise the dismis-

sal will be found unlawful and the employee will receive compensation of

6-12

months’ pay.

2) If the employee is dismissed during leave which is based on an agreement

between the employee and the employer the burden of proof is shared. This

means that if the employee establishes, before a court or other competent

authority, facts from which it may be presumed that there has been direct or

indirect discrimination, it shall be for the employer to prove that there has

been no breach of the principle of equal treatment. If the employer is unable

to do so the dismissal will be found unlawful and the employee will receive

compensation of 6-12

months’ pay.

If the employer is able to prove that the dismissal is

not

due to pregnancy or leave,

but is due to for e.g. organizational changes within the company or the economic

situation for the company, the dismissal is not considered unlawful.

Article 8§3

to provide that mothers who are nursing their infants shall be entitled

to sufficient time off for this purpose.

Danish remarks

Denmark has not ratified this provision in the Original Social Charter. Danish legis-

lation does not explicitly provide for time off for women to nurse their infants.

Denmark notes that each parent has the right to 24 weeks leave with state benefits

after the birth of the child. If the parent is an employee 13 of the 24 weeks may be

transferred to the other parent.

Denmark notes that the national legislation complies with current EU-legislation and

caselaw.

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Article 8§4

–

to regulate the employment in night work of pregnant women,

women who have recently given birth and women nursing their infants;

Article 8§5

- to prohibit the employment of pregnant women, women who have

recently given birth or who are nursing their infants in underground mining and all

other work which is unsuitable by reason of its dangerous, unhealthy or arduous na-

ture and to take appropriate measures to protect the employment rights of these

women.

Danish remarks

Denmark has not ratified paragraph 4 in the original Social Charter. The paragraph

has been amended and combined with the new paragraph 5 in the Revised Social

Charter.

This paragraph, which amends Article 8, paragraph 4.b of the Charter, limits the

prohibition of employment of women in underground mining and in all other work

which is unsuitable by reason of its dangerous, unhealthy or arduous nature to the

case of maternity as defined in the preceding paragraph. It requires Parties to take

appropriate measures to protect the employment rights of the women concerned.

By this, it has been understood that such workers should be given the possibility to

transfer to suitable work, or to be granted leave from work if a transfer is not feasible,

with the payment of salary or other adequate allowance and without loss of status,

seniority or access to promotion.

The determination of working time, including night work, is to large extend a matter

for the social partners in Denmark and is regulated in the collective agreements.

There are no specific rules on the night work in the industry. Similarly, there is no

gender distinction in the rules on the night work.

However, there is general protection of pregnant woman in regards to night work.

This general protection of pregnant employees implies that their night work is

planned and organized so there is no risk to their health or safety. This mean that the

employer must consider that there may be a need for pregnant employees to have

their work hours changed and tailored, precisely to ensure that there are no health

and safety risks. For example, this might imply to shorter shifts, restrictions to night

work or complete exemption from night work.

Furthermore, it is a legal requirement for workplaces to offer their employees a free

health check-up before they start night work, and that these must be done within

every 3 years. This applies to both men and women.

As the regulation of night work is a matter that is more or less exclusively regulated

by the social partners it should be left up to them to decide whether to accept the

provision or not. Any acceptance of the undertaking matters that are regulated by

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collective agreement would entail that the State overtakes the responsibility for how

these matters should be regulated in the future, which would result in a breach of the

principle of non- intervention by the state in the collective autonomy of the social

partners in Denmark. If the social partners accept the provision, such acceptance of

Article 8§4 would require legislative measures.

In relation to Article 8§5, it is noted that here are no forms of underground mining

in Denmark. An absolute prohibition of employing pregnant women in underground

work is therefore not required. However, in relation to other forms of dangerous

work environments as such, pregnant and nursing women are as already mentioned

above covered by the general protection of pregnant women at work.

Article 10

–

The right to vocational training

With a view to ensuring the effective exercise of the right to vocational training, the

Parties undertake:

Article 10§4

–

to provide or promote, as necessary, special measures for the re-

training and reintegration of the long-term unemployed

Danish remarks

Denmark has ratified this article in the original Social Charter. However, in the Re-

vised Social Charter it is a new provision which promotes the rehabilitation and in-

tegration of the long-term unemployed. The idea behind this new paragraph is that

special measures need to be taken for the rehabilitation and integration of the long-

term unemployed, as their chances of re-entering the labour market are low. The

other paragraphs are unchanged.

According to Danish law, unemployed persons may be provided with special

measures for retraining and reintegration.

The Danish active labour market policies divide the unemployed into different cate-

gories. Each category may receive different grants and employment-related services.

The categories distinguish between how far the persons are from the job market.

Each category has the long-term goal of integrating the unemployed into the job

market. The reason for having different categories is that each category has the pos-

sibility of using different means to achieve the common goal of integrating the un-

employed into the job market.

Long-term unemployed may have other problems than the lack of a job. The Danish

active labour market policies consider this. As such, the active labour market policies

may be combined with a social or health related efforts.

As a way of getting back into the labor market, the unemployed person may be of-

fered an internship at a private company or temporary employment in the public

sector. Other relevant measures may include guidance and upgrading.

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In 2021, a number of parties in the Danish Parliament entered into an agreement to

allocate a total of DKK 159 million for a number of temporary initiatives in 2021

and 2022.

The initiatives aim to strengthen and improve the chances for long-term unem-

ployed to return to the labor market through upgrading and practical work-related

measures. For example, there is an initiative for a special wage subsidy for long-

term unemployed seniors and an initiative for more funds for a pool for unem-

ployed seniors over 50 years at risk of long-term unemployment.

Article 11

–

The right to protection of health

With a view to ensuring the effective exercise of the right to protection of health, the

Parties undertake, either directly or in cooperation with public or private organiza-

tions, to take appropriate measures designed inter alia:

Article 11§3

–

to prevent as far as possible epidemic, endemic and other diseases,

as well as accidents.

Danish remarks

Denmark has ratified this article in the original Social Charter. The provision has

been amended with the addition of "as well as accidents". The other paragraphs are

unchanged.

Article 12

–

The right to social security

With a view to ensuring the effective exercise of the right to social security, the

Parties undertake:

Article 12§2

–

to maintain the social security system at a satisfactory level at least

equal to that necessary for the ratification of the European Code of Social Security

Danish remarks

Denmark has ratified this article in the original Social Charter. The provision on the

right to social security has been amended by removing the reference to the Interna-

tional Labour Convention (No. 102) Concerning Minimum Standards of

Social Security.

Article 15 - The right of persons with disabilities to independ-

ence, social integration and participation in the life of the com-

munity

With a view to ensuring to persons with disabilities, irrespective of age and the na-

ture and origin of their disabilities, the effective exercise of the right to independ-

ence, social integration and participation in the life of the community, the Parties

undertake, in particular

(…)

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Danish remarks

Denmark has ratified the article in the original Social Charter. The article has been

amended in the Revised Social Charter and a paragraph 3 has been added. The pro-

tection of persons with disabilities has been extended compared to the original char-

ter. It no longer only applies to vocational rehabilitation, but also to the right of per-

sons with disabilities to independent social integration, personal autonomy and par-

ticipation in the life of the community in general.

The Danish Act on Social Services contains the principle of equal opportunities

which establishes that public services should aim at supporting persons with disabil-

ities in achieving their potential on equal terms with persons without disabilities.

Another principle is the principle of compensation which means that the support and

assistance is provided to compensate the needs caused by the disability. Support and

assistance can be given in the form of technical aids, personal assistance, accompa-

niment etc. Support and care for persons with disabilities is free of charge for the

individual.

This means that the purpose of the Act on Social Services among other things is to

promote the full social integration and participation in the community for persons

with disabilities.

According to the Act on Social Services, the municipalities shall provide sheltered

employment for persons under old-age pension age, who, on account of substantial

impairment of physical or mental function or special social problems, are unable to

find or maintain employment on the labour market on normal terms, and who are not

provided for under any other legislation.

Article 15§1

–

to take the necessary measures to provide persons with disabilities

with guidance, education and vocational training in the framework of general

schemes wherever possible or, where this is not possible, through specialized bodies,

public or private;

Danish remarks

The purpose of the The Act on Early Childhood Education and Care (ECEC) is,

among other, to prevent negative social heredity and social exclusion through the

general work of supporting children, including children and young people with re-

duced mental and physical functioning (§1).

It also follows from the Act on ECEC that:

•

The Act on ECEC Facilities provides a guarantee for equal access to an

ECEC facility for all children below the school age. Guaranteed ECEC

availability means that the local council must offer places in an age-

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•

appropriate ECEC facility to all children older than 26 weeks and until they

reach school age (§ 23).

The local municipal council must ensure that children who need support in

an ECEC facility in order to thrive and develop, are offered such support

(§4)

The learning environment in ECEC must consider the children's perspective

and participation, the children's community, the composition of the chil-

dren's group and the children's different preconditions (§ 8).

It follows from the

Act number 2218 from 29/12/2020

“Act on amendment of the

Act on Prohibition of Discrimination on the Ground of Disability”:

•

Children and young people with disabilities have the right to a reasonable

individual adaptation of services in ECEC so that they can achieve the same

opportunities for participation as other children and young people and avoid

discrimination.

In relation to education, all students have the right to teaching in the Danish primary

and lower secondary public schools (Folkeskolen). Therefore, children whose devel-

opment requires special consideration or support must be offered this based on a

concrete assessment of the educational needs of the individual. If the need exceeds

nine hours a week, the children are offered special education. Special education sup-

port is a general right and is not provided as a focused effort for a specific sub-group

of pupils.

In relation to upper secondary education and vocational education and training, it is

possible to plan longer education periods if students due to disabilities or other dif-

ficulties cannot follow the normal course plans. For all types of upper secondary

education and vocational education and training, it is possible to apply for special

assistance that can take different forms (e.g. extra classes, tools or personal support)

depending on the type of disability. In vocational education and training, the students

and apprentices can extend the second basic course period with up to 50 percent and

institution can create separate classes for those students and apprentices that follow

the second school period on special conditions. Furthermore, the on-the-job training

can be completed at less than full-time.

In upper secondary education, it is possible to add an extra year compared to the

standard course plans and the institutions also have the opportunity to create specific

classes for these students.

Article 15§3

–

to promote their full social integration and participation in the life

of the community in particular through measures, including technical aids, aiming to

overcome barriers to communication and mobility and enabling access to transport,

housing, cultural activities and leisure.

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Danish remarks

It is the Ministry of Transport's assessment that the provision does not go beyond the

obligations that Denmark already has in the field of transport in relation to the op-

portunities and rights of disabled people in relation to public transport, i.a. EU pas-

senger rights and according to the UN's Disability Convention, which Denmark ac-

ceded to in 2009.

Article 16

–

The right of the family to social, legal and economic

protection

With a view to ensuring the necessary conditions for the full development of the

family, which is a fundamental unit of society, the Parties undertake to promote the

economic, legal and social protection of family life by such means as social and

family benefits, fiscal arrangements, provision of family housing, benefits for the

newly married and other appropriate means.

Danish remarks

Denmark has ratified this article of the original Social Charter. There is a minor

chance from the original article to the revised one, as the word "contracting" has

been removed from the designation "contracting parties".

In addition, the protection offered to 'mothers' under Article 17 of the original Social

Charter has not been maintained in the revised version of Article 17, Article 16 of

the Revised Social Charter will now cover this group.

Article 17

–

The right of children and young persons to social, le-

gal and economic protection

With a view to ensuring the effective exercise of the right of children and young

persons to grow up in an environment which encourages the full development of

their personality and of their physical and mental capacities, the Parties undertake,

either directly or in co-operation with public and private organizations, to take all

appropriate and necessary measures designed (...).

Article 17§1

a) to ensure that children and young persons, taking account of the rights and

duties of their parents, have the care, the assistance, the education and the

training they need, in particular by providing for the establishment or

maintenance of institutions and services sufficient and adequate for this pur-

pose;

b) to protect children and young persons against negligence, violence or ex-

ploitation;

c) to provide protection and special aid from the state for children and young

person’s

temporarily or definitively deprived of their family's support;

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Danish remarks

Denmark has ratified article 17 in the original Social Charter. The article has been

amended in the Revised Social Charter. Among other things, "legal" has been added

to the title and it has been specified that children and young people should have

access to free education. Furthermore, the article has been expanded with two sepa-

rate paragraphs, which will be reviewed below.

The current framework of child protection in Denmark

In Denmark, any person who is lawfully residing in Denmark is eligible to receive

assistance under the Act on Social Services that provides children with a variety of

rights. In Denmark, the municipalities (kommuner) are responsible for the provision

of special support to children and young persons under the age of 18 and their fami-

lies pursuant to the Danish Act on Social Services. The municipalities also have a

general obligation to monitor the living conditions of children and young persons

within the municipality (section 146).

Special support for a child or young person under 18 is provided when the munici-

pality considers the child or young person to have special needs. The municipality is

obliged to give a child or young person the support he or she needs in accordance

with the best interests of the child.

The purpose of assisting children and young persons with special needs is to provide

such children and young persons with same opportunities for personal development,

health and an independent adult life as other children and young person. Among

other things, the support shall ensure continuity in the upbringing of the child or

young person and a safe environment of care, for instance by supporting the child or

young person’s family relations and

another network.

The Amended 17 in the Danish Legal Framework

The amended Article 17 of 1996 establishes a right of children and young persons to

social, legal and economic protection. Within Danish legal framework, children have

the overall right to social protection. Hence, every child lawfully residing in Den-

mark is eligible to receive assistance under the Act of Social Services. According to

the Act, the municipal council shall supervise the conditions under which children,

young persons under 18 years of age and expecting parents are living in the munici-

pality. The municipal council shall discharge its supervisory duties in a manner en-

abling it to identify, as soon as possible, any cases where a child or young person

under 18 years of age must be assumed to need special support or where a child must

be assumed to acquire a need for special support immediately after being born. If the

municipal council has reason to assume that a child or young person needs special

support, the municipal council must conduct a child protection examination in order

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to clarify the needs of the child or young person, in accordance with section 50 of

the Act on Social Services.

Age specific support

It is stated in the Digest of the Case Law of the European Committee that “States

Parties must take all the necessary legal, financial and operational measures to pro-

gressively provide all young children with the most appropriate care services in fam-

ily-based and community-based family-type settings, particularly children under the

age of three” (page 149).

In Denmark, all children have the right to special support, and it is up to an individual

judgment by the caseworker to determine which kind of special support that is the

right for the child, for instance a placement in care. This right is the same for all

children regardless of age. Hence, the article would not strengthen the rights of the

overall group of children by placing a specific focus on children under the age of

three.

Number of children in care institutions

Further, it is stated that “a unit in a child welfare institution should be of such a size

as to resemble the home environment and should not therefore accommodate more

than 10 children” (page 150).

In accordance with Danish law, each institution where children can be placed in care

has to be approved by the Social Supervisory Authority, which is a state authority.

Here, it is also approved how many places the institution can have. The number of

places that each institution can have will be decided based on the target group for

the institution, psychical environment, and quality.

De-institutionalisation

Finally, it is stated: “Article 17 implies an obligation to initiate and carry forward a

de-institutionalisation process, by effectively making community-based family-type

services available to all young children who cannot grow up in a family environment

or are temporarily or definitively deprived of their family’s support. In doing so,

States Parties must take steps to achieve the objectives of the Charter within a rea-

sonable time, with measurable progress and making maximum use of available re-

sources. Failure to do so violates Article 17” (page 151).

According to the Act on Social Service, the municipal council shall decide on the

specific placement facility for the child when it has been decided that the child shall

be placed in care outside home. In choosing the placement facility, the municipality

shall choose the facility that is best suited to meet the needs of the child or young

person. The municipality shall give priority to the possibility for the facility to offer

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close and stable adult relations, which shall include assessing whether placement

with a foster family, is the most appropriate solution. Thus, the choice of placement

facility is based on an individual judgment. Hence, Danish law does not directly

support the idea of deinstitutionalization as in some cases it will be the best choice

for a child or young person to be placed in an institution that is specialized in han-

dling the special needs that the specific child may have.

Article 17§2

- to provide to children and young persons a free primary and sec-

ondary education as well as to encourage regular attendance at schools.

Danish remarks

In relation to article 17, paragraph 2, all pupils and students in Denmark have the

right to education meeting the specific needs of the individual child. All children

residing in Denmark are subject to compulsory primary and lower secondary educa-

tion in accordance with the Folkeskole Act.

In relation to upper secondary education and vocational education and training, the

Danish legislation is in general based on the assumption that pupils and students have

a residence permit. A student that loses the right to residence permit will be able to

complete the education if otherwise possible. In relation to vocational education and

training, the student will have to cover education expenses if the residence permit is

lost.

Article 19

–

The right of migrant workers and their families to

protection and assistance

With a view to ensuring the effective exercise of the right of migrant workers and

their families to protection and assistance in the territory of any other Party, the Par-

ties undertake:

Article 19§11

to promote and facilitate the teaching of the national language of

the receiving state or, if there are several, one of these languages, to migrant workers

and members of their families

Article 19§12

- to promote and facilitate, as far as practicable, the teaching of the

migrant worker's mother tongue to the children of the migrant worker.

Danish remarks

Denmark has not ratified this article in the original Social Charter. Paragraphs 1-10

have not been amended. Only the appendix to paragraph 6 has been amended with

the addition of a definition of "family of a foreign worker". In addition, paragraphs

11 and 12 have been added. Denmark has not ratified this article.

According to article 19, paragraph 11, ratifying member states must promote and

facilitate the teaching of the national language of the receiving state or, if there are

several, one of these languages, to migrant workers and members of their families.

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Danish language training is a central part of the integration effort in Denmark. All

newly arrived adult immigrants are entitled to receive free Danish language training.

Some immigrants are obliged to participate in Danish language training. This is the

case for immigrants under the self-support and return program or introduction pro-

gram who receive social benefits. For other groups of immigrants, primarily workers

or students, Danish language training is an offer, and it is voluntary for this group to

participate in Danish language training.

For both groups the language training offer consists of up to five years of language

training that corresponds to a total of 1,2 years of full-time language training.

The local municipalities are responsible to provide newly arrived immigrants in the

municipality with a language training offer, and this must be done no later than one

month after the municipality has taken over responsibility for the immigrant.

The Danish state of law regarding adult immigrants complies with article 19, para-

graph 11, and is assessed to be adequate in the case of Danish ratification of article

19, sub paragraph 11.

Furthermore, Denmark makes teaching in Danish available for all children of the

compulsory education age, cf. section 5 (2) no. 1 (a) and section 5 (6) of the Folke-

skole Act. The expenses for Danish as a second language tuition are defrayed by the

local authorities. If the child is provided for by the Danish Immigration Service, the

education is provided in accordance with the Immigration Act.

The Youth School Act contains rules on education specified for young immigrants

in the Danish language and Danish social conditions, cf. section 3 (1) no. 4, and rules

on Danish education for newly arrived immigrants between 18-25 years, as defined

in the Danish Act on education for grown-up immigrants et. al, cf. section 3 (2) no.

However, it follows in section 2 (1), paragraph 2, of the Youth School Act that the

[youth school’s] offer must be available for young people between 14-18

years reg-

istered in the municipality’s

population register. This includes the condition that the

young individual must hold a legal residence permit. If the young individual does

not have a legal residence permit, he/she must contact the Danish Immigration au-

thorities.

Regarding article 19, paragraph 12, there is currently only an obligation to provide

mother-tongue teaching to children of EU/EEA citizens, British citizens with resi-

dence permit according to the EU-UK Withdrawal Agreement and children whose

mother-tongue is Faroese or Greenlandic cf. section 5 (6) of the Folkeskole Act. A

reservation would therefore be necessary for this provision.

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Article 24

–

The right to protection in cases of termination of em-

ployment

With a view to ensuring the effective exercise of the right of workers to protection

in cases of termination of employment, the Parties undertake to recognize:

a. the right of all workers not to have their employment terminated without

valid reasons for such termination connected with their capacity or conduct

or based on the operational requirements of the undertaking, establishment

or service;

b. the right of workers whose employment is terminated without a valid reason

to adequate compensation or other appropriate relief.

To this end the Parties undertake to ensure that a worker who considers that his em-

ployment has been terminated without a valid reason shall have the right to appeal

to an impartial body.

Danish remarks

This is a new article on the right to protection in the event of unfair dismissal. The

article is based on two general principles: the right not to be dismissed without just

cause and the right to adequate compensation in cases of unfair dismissal.

The provision is inspired by ILO Convention no. 158 of 1982. With regard to the

independent complaints body, reference is made to article 8 of the ILO Convention.

Denmark has not ratified ILO Convention no. 158.

In Denmark the social partners play a crucial role regulating wages and working

conditions. The Danish labour market model builds on employers and workers being

organised in strong associations and unions that represent the broad interests of

members in collective agreement negotiations. Pay and working hours are primarily

regulated by collective agreement or individual employment contracts. As far as pos-

sible, the state refrains from intervening in the regulation of pay and working condi-

tions.

In Denmark, legislation and collective agreements do not protect all

workers against unfair dismissal. An obligation to ensure that all workers are

protected against unfair dismissal would interfere with the scope for social

partners to enter collective agreements.

Article 25

–

The right of workers to the protection of their claims

in the event of the insolvency of their employer

With a view to ensuring the effective exercise of the right of workers to the protection

of their claims in the event of the insolvency of their employer, the Parties undertake

to provide that workers' claims arising from contracts of employment or employment

relationships be guaranteed by a guarantee institution or by any other effective form

of protection.

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Danish remarks

New article on the right of workers to protection of their claims in the event of the

insolvency of their employer. The provision provides for the establishment of a guar-

antee fund or similar measures. Insolvency must be defined in accordance with na-

tional law and practice.

The article is inspired by ILO Convention No. 173 on "Protection of workers claims"

of 1992 and by EC Directive No. 80/1987 "on the approximation of the laws of the

Member States relating to the protection of employees in the event of the insolvency

of their employer. Denmark has not ratified ILO Convention No. 173.

In Denmark “Lønmodtagernes

Garantifond”

(LG)

ensures that employees are paid

their respective salary, holiday allowances, and other things if the company where

they are employed is in a state of insolvency or is closed down in a similar manner.

Lønmodtagernes Garantifond means “Workers Salary Guarantee Fund and is estab-

lished in accordance with the Insolvency Directive (Directive 2008/94/EC)

Article 26

–

The right to dignity at work

With a view to ensuring the effective exercise of the right of all workers to protection

of their dignity at work, the Parties undertake, in consultation with employers' and

workers' organizations:

1. to promote awareness, information and prevention of sexual harassment in

the workplace or in relation to work and to take all appropriate measures to

protect workers from such conduct;

2. to promote awareness, information and prevention of recurrent reprehensi-

ble or distinctly negative and offensive actions directed against individual

workers in the workplace or in relation to work and to take all appropriate

measures to protect workers from such conduct.

Article 26 is a new article on the right to decent working conditions.

Article 26§1

With a view to ensuring the effective exercise of the right of all

workers to protection of their dignity at work, the Parties undertake, in consultation

with employers’ and workers’

organizations, to promote awareness, information and

prevention of sexual harassment in the workplace or in relation to work and to take

all appropriate measures to protect workers from such conduct.

Danish remarks

General protection from sexual harassment

In Denmark sexual harassment is prohibited in general by the Act on Equal Treat-

ment of Men and Women with regard to Employment (henceforth the Act). Sexual

harassment is defined in § 1, para 6, of the Act, as any form of unwanted verbal, non-

verbal or physical behavior with sexual undertones is displayed with the purpose or

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effect of violating a person's dignity, in particular by creating a threatening, hostile,

degrading, humiliating or uncomfortable climate.

According to § 4 of the Act the right of workers to equal terms of employment in-

cludes a ban on sexual harassment, as it is defined by the Act. The explicit mention-

ing of sexual harassment in the article were added in 2018 to further emphasize the

prohibition of sexual harassment and to raise awareness for both workers and em-

ployers. § 4 entails a duty for the employer to provide a harassment-free environ-

ment. An employer is obliged to reasonably protect its employees against sexual

harassment

–

also violations committed by other employees. The rules ensure that

any employer employing men and women shall treat them equally as regards work-

ing conditions. This also applies in the event of dismissal.

Furthermore, the amendments to the Act in 2018 increased the compensation offered

to victims of sexual harassment.

Finally, Denmark notes that the Tripartite Agreement of 4 March 2022 sets out 17

initiatives to combat sexual harassment in the work place and that several of these

initiatives concerns awareness raising and prevention of sexual harassment at enter-

prise level.

Enforcement

Board of Equal Treatment considers complaints of differential treatment, which in-

cludes complaints on violations of the Act on Equal Treatment. The Board has the

power to issue compensation to the injured party, and can annul a dismissal of a

worker. A decision by the Board is legally binding but can be brought before the

courts on appeal.

Burden of proof

In Denmark cases of sexual harassment are covered by the rules on shared burden of

proof. This means that if an employee can demonstrate factual circumstances, which

gives reason to suspect that direct or indirect discrimination has taken place, it is for

the employer to prove that the principle of equal treatment has not been violated.

This follows from § 16 a of the Act, which is a special rule in regards to burden of

proof in cases of sexual harassment.

Working Environment Act

According to § 1 of the Executive Order of the Working Environment Act, the pur-

pose of the working environment rules is to ensure a safe and healthy physical and

mental working environment that is at all times in accordance with the technical and

social development in the society. According to § 38, work shall be planned,

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organized and carried out in such a way as to ensure health and safety, and approved

standards of importance to health or safety shall be complied with.

In November 2020 Executive Order on Psychological Working Environment came

into force. This Executive Order gathers all rules in regards to mental health and

psychological influences in the working environment, but it does not create new rules

or obligations. The articles in the Executive Order does however contain new rules

that clarify the existing obligations.

§ 23 of the Executive Order Explicitly mentions sexual harassment in relation to

offensive behavior and actions, and § 22 clarify that the employer has an obligation

to ensure that the work is at all times planned, organized and carried out in such a

way as to protect workers from offensive behavior and actions.

The Danish Working Environment Authority enforces the rules covering health and

safety at work, and can require that action is to be taken immediately to ensure that

workers are not subjected to sexual harassment. Fines can be issued if the rules are

violated, and in severe cases, there is the possibility of criminal proceedings and

imprisonment.

The Danish Working Environment Authority is also obligated to provide guidance

to companies, the public, and workers’ and employers’ organizations

on all questions

related to health and safety at work. This includes guidance on sexual harassment,

where The Danish Working Environment Authority has published a written guide in

2011, that is currently being updated. Furthermore, the Danish Working Environ-

ment Authority conducts information, awareness-raising and prevention campaigns

in the workplace or in relation to work in order to combat sexual harassment, in

particular in situations where harassment is likely to occur.

Article 26§2

With a view to ensuring the effective exercise of the right of all

workers to protection of their dignity at work, the Parties undertake, in consultation

with employers’ and workers’

organizations to promote awareness, information and

prevention of recurrent reprehensible or distinctly negative and offensive actions di-

rected against individual workers in the workplace or in relation to work and to take

all appropriate measures to protect workers from such conduct.

Danish remarks

In Denmark workers are protected from negative and offensive actions through the

rules stemming from the Executive Order of the Working Environment Act and the

Executive Order on Psychological Working Environment. The Working Environ-

ment Act ensures this protection in general, and the Executive Order on Psycholog-

ical Working Environment contains rules that clarify the obligations of the law.

According to § 1 of the Executive Order of the Working Environment Act, the pur-

pose of the working environment rules is to ensure a safe and healthy physical and

mental working environment that is at all times in accordance with the technical and

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social development in the society. Furthermore, it follows by § 38, that work shall

be planned, organized and carried out in such a way as to ensure health and safety,

and approved standards of importance to health or safety shall be complied with.

Chapter 2 of the Executive Order on Psychological Working Environment states that

the employer is obligated to ensure the health and safety in all aspects of the psycho-

social working environment. Chapter 3 contains specific rules about certain influ-

ences that are considered especially important to the workers psychosocial wellbe-

ing.

§ 22 explicitly states that the work must always be planned, organized and carried

out in such a way as to ensure the health and safety in regards to offensive behavior

and actions. Offensive behavior and actions are defined in § 23 as being actions, that

one or more people in company grossly or repeatedly exposes one or more other

people in the company to bullying, sexual harassment or other degrading behavior

at work. The behavior must be perceived as degrading by the victim(s).

Employers are also obligated to provide adequate protection of the workers from

violence and offensive actions caused by persons not employed or associated with

the company (such as costumers and business partners). This obligation applies both

to risk of violence at work and outside working hours, if there is a concrete risk

because of the work that’s being performed.

The Danish Working Environment Authority enforces the rules covering working

environment, and can require for action to be taken immediately to ensure that work-

ers are not subjected to offensive behavior and actions. Employers can be held liable

in case of violation of the rules through fines.

The Danish Working Environment Authority also conducts information campaigns

about offensive behavior and actions

–

both through the official website, but also

through social media such as Facebook or Instagram, as this broadens the reach of

the information.

The Danish Working Environment Authority has established a hotline which is open

for reporting of bullying, abusive behavior and sexual harassment. The agency also

publishes guidelines and other material to help employers and employees combat

bullying and sexual harassment.

The Danish Social Partners (employers’

and workers’ organizations) also play an

important role in ensuring that information on the prevention of offensive behavior

and actions is given to both companies and the workers. The Social Partners have

carried out several campaigns in unison and provide education programs to workers

and employers to help combat the negative and offensive behavior and actions that

can occur at work. Workers can also seek individual assistance from their trade

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unions if they experience offensive behavior and actions and the trade unions have

access to pursue all available remedies to seek reparation for the damages caused.

Many collective agreements also contain provisions regarding offensive behavior

and actions. These agreements cover the vast majority of workers in Denmark and

are enforced by the Social Partners and through labour Courts. The courts can issue

reparation to the victim for both pecuniary and non-pecuniary damages.

Article 27

–

the right of workers with family responsibilities to

equal opportunities and equal treatment

With a view to ensuring the exercise of the right to equality of opportunity and treat-

ment for men and women workers with family responsibilities and between such

workers and other workers, the Parties undertake:

1. to take appropriate measures:

a. to enable workers with family responsibilities to enter and remain in

employment, as well as to reenter employment after an absence due to

those responsibilities, including measures in the field of vocational guid-

ance and training;

b. to take account of their needs in terms of conditions of employment and

social security;

c. to develop or promote services, public or private, in particular child day-

care services and other childcare arrangements;

2. to provide a possibility for either parent to obtain, during a period after ma-

ternity leave, parental leave to take care of a child, the duration and condi-

tions of which should be determined by national legislation, collective

agreements or practice;

3. to ensure that family responsibilities shall not, as such, constitute a valid

reason for termination of employment.

Danish remarks

New article on the right to equal treatment in relation to family responsibilities. The

inspiration is taken from ILO convention no. 156 from 1981. Danish reservation to

this article at the time of signing. Denmark has not ratified ILO convention no. 156.

The provision stipulates, among other things, that an employee must be guaranteed

a certain priority right to, for example, reinstatement in a job if termination has oc-

curred for family reasons, that terms of employment must take such obligations into

account, and that family obligations as such may not constitute a valid reason for

termination.

Ministry of Employment

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Denmark notes that each parent has the right to 24 weeks of leave with state benefits

after the birth of the child. If the parent is an employee, 13 of the 24 weeks may be

transferred to the other parent.

Under the Act on Equal Treatment between Men and Women in relation to Employ-

ment etc., employees are entitled to return to the same or similar work after mater-

nity, paternity or parental leave and enjoy the same improvements in working con-

ditions as the employee would have had, if she/he was not absent.

Denmark also notes that under the Act on Equal Treatment between Men and

Women in relation to Employment etc., employers may not lawfully dismiss an em-

ployee or treat the employee less favorably on grounds of pregnancy, maternity, pa-

ternity or parental leave. This is considered direct discrimination under both Danish

and EU law.

For further information Denmark refers to the remarks under Article 8.

Ministry of Children and Education

In regards to child daycare services and other childcare arrangements (article 27§1,

c), the purpose of the Act on ECEC is

–

among other things

– to “provide families

with flexibility and options regarding different types of ECEC facilities and subsi-

dies so the family can plan the family and working life according to their needs and

wishes” (Act on ECEC, § 1).

Therefore, the Act on ECEC provides the following elements for increased flexibility

for the parents:

•

Access to request a specific ECEC

The parents have the option of choosing either a public or private ECEC

–

Access to choose an ECEC facility in another municipality

Municipalities can choose to provide subsidy for parents to hire private

childminding and minding of own children from 24 weeks

For parents with evening, weekend or night shifts: possibility to hire a pri-

vate childminder as well as a part-time place in an ECEC

The opening hours must cover local needs of the local parents.

The Danish Maritime Authority

The Danish Act on seafarers' employment conditions etc., stipulates that a seafarer

shall be entitled to leave without pay when compelling family reasons apply in case

of illness or accidents making the seafarer’s immediate presence urgently necessary

in the home (force majeure). The Act does not contain any prohibition against

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termination due to family obligations apart from absence due to pregnancy, mater-

nity and adoption.

Article 28

–

The right of workers' representatives to protection in

the undertaking and facilities to be accorded to them

With a view to ensuring the effective exercise of the right of workers' representatives

to carry out their functions, the Parties undertake to ensure that in the undertaking:

a) they enjoy effective protection against acts prejudicial to them, including

dismissal, based on their status or activities as workers' representatives

within the undertaking;

b) they are afforded such facilities as may be appropriate in order to enable

them to carry out their functions promptly and efficiently, account being

taken of the industrial relations system of the country and the needs, size and

capabilities of the undertaking concerned.

Danish remarks

The article is new. Denmark has a reservation to this article at the time of signing.

The provision is inspired by ILO Convention no. 135 (Workers representatives) of

1971, where the Danish contract-based protection of trade union representatives is

accepted in relation to the fulfilment of the convention. The convention entered into

force in Denmark on 6 June 1978. The convention protects the employee representa-

tive against actions by the employer that may harm the employee representative, in-

cluding dismissal, and requires the employer to make facilities available so that the

employee representative can perform his or her duties.

The article sets out a requirement that employee representatives must have the right

to perform their duties, and that they must be protected against dismissal due to ac-

tivities that are justified in their duties. The provision considers the individual coun-

try's labor market system. However, legislation and collective agreements regarding

workers’ representatives do not cover all small undertakings.

Article 29

–

the right to information and consultation in collec-

tive redundancy procedures

With a view to ensuring the effective exercise of the right of workers to be informed

and consulted in situations of collective redundancies, the Parties undertake to ensure

that employers shall inform and consult workers' representatives, in good time prior

to such collective redundancies, on ways and means of avoiding collective redun-

dancies or limiting their occurrence and mitigating their consequences, for example

by recourse to accompanying social measures aimed, in particular, at aid for the re-

deployment or retraining of the workers concerned

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Danish remarks

This is a new article on the right to information and consultation in collective redun-

dancy procedures. It is modelled on EC directive no. 92/56 of 1992, which amended

directive no. 75/129 "on the approximation of the laws to collective redundancies".

In addition, ILO convention no. 158 (termination of employment) has also been con-

sidered. Denmark has not yet ratified ILO convention no. 158. Denmark has a reser-

vation to this article at the time of signing.

The Danish law about collective redundancy procedures implements the EU

Council

Directive 75/129/EEC of 17 February 1975 on the approximation of the laws of the

Member States relating to collective redundancies.

The law concerns collective redundancies within a 30-day period of: 1) at least 10

employees within corporations of 20-99 employees, 2) at least 10 pct. of employees

within corporations of between 100-299 employees, 3) at least 30 employees within

corporations of at least 300 employees. If the redundancy concerns at least 50 pct.

of at least 100 employees, there are stricter rules on the notice period, the earliest

effective date of the redundancies and the size of compensation for non-compliance

with the rules on negotiations and notice.

The employer must negotiate with the workers or their representatives, if represent-

atives are chosen or appointed. The selection of possible representatives is not regu-

lated further.

Employers must initiate negotiations with workers or their representatives as early

as possible about avoiding or reducing the redundancies as well as mitigating the

consequences of them by activities that aim to redeploy or retrain the workers con-

cerned.

After the negotiations, the employer shall notify the regional labour market council

(RAR) about the redundancies. The workers/their representatives receive a copy of

the messages.

Regional labour market councils (RAR) consist of representatives from social part-

ner organizations. Employers are required to notify RAR about the collective redun-

dancies. RAR can decide when a corporation with more than one local workplace is

regarded as one or as multiple workplaces in regards to the law.

The law mandates sanctions within both civil and criminal law in case of an em-

ployer’s disregard of rules about information, notification and negotiation.

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Article 30

–

The right to protection against poverty and social ex-

clusion

With a view to ensuring the effective exercise of the right to protection against pov-

erty and social exclusion, the Parties undertake:

a. to take measures within the framework of an overall and coordinated ap-

proach to promote the effective access of persons who live or risk living in

a situation of social exclusion or poverty, as well as their families, to, in

particular, employment, housing, training, education, culture and social and

medical assistance;

b. to review these measures with a view to their adaptation if necessary.

Danish remarks

New article on the right to protection against poverty and social exclusion.

Denmark has general welfare provisions for all people with legal residence in Den-

mark. The welfare provisions include a broad range of policy areas, such as health,

employment, social services, etc. Some of the services and benefits are universal,

while others target people with special needs. Most welfare services are a municipal

responsibility.

The Act on Social Services obliges municipalities to offer a large variety of services,

support, and benefits to people social marginalized people or people in risk of social

marginalization.

People in socially marginalized positions and in risk of social marginalization often

experience that their personal and social problems often lie within several problem

areas. The municipal council shall therefor consider applications and enquiries for

assistance, having regard to all possibilities available to render assistance under the

social legislation, including counselling and guidance. In addition, the municipal

council shall consider the possibility that assistance may be available from another

authorities.

Access to education

The Danish Act on ECEC states that the purpose of the Act is, among other, to pre-

vent negative social heritage and social exclusion by making ECEC both an integral

part of the municipality’s overall general provision for children, as well as the mu-

nicipality’s preventive and support measures for children in need of special

measures.

The Act on ECEC Facilities provides a guarantee for equal access to an ECEC facil-

ity for all children below the school age. Guaranteed ECEC availability means that

the local council must offer places in an age-appropriate ECEC facility to all children

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older than 26 weeks and until they reach school age. It is provided in the Act on

ECEC that the municipality, as a starting point, gives subsidies for a place in ECEC

for a minimum of 75 pct. of the budgeted gross operating expenditure for a child in

ECEC, while parents pay a maximum of 25 % of services for children. Families

receive a sibling discount. Additionally, the parents may apply for a financially aided

place subsidy, which is calculated on the basis of the parents’ financial situation.

This place subsidy is increased for single-parent families.

The aim of the rules is to ensure that all children, regardless of socio-economic back-

ground, have equal access to ECEC.

Article 31

–

The right to housing

With a view to ensuring the effective exercise of the right to housing, the Parties

undertake to take measures designed:

1. to promote access to housing of an adequate standard;

2. to prevent and reduce homelessness with a view to its gradual elimination;

3. to make the price of housing accessible to those without adequate resources

Danish remarks

New article on the right to housing. It is up to member states to decide what consti-

tutes "housing of an adequate standard".

Denmark has a welfare system aimed at ensuring access to housing of an adequate

standard for all citizens:

1. Promotion of access to housing of an adequate standard: Denmark has im-

plemented various initiatives and policies to promote access to housing of

sufficient quality. Building regulations and standards have been put in place

to ensure that housing meets certain quality standards. Additionally, the gov-

ernment has implemented various housing policies to facilitate access to

housing for vulnerable groups such as youth, the elderly, and low-income

families.

2. Prevention and reduction of homelessness: Denmark has an ambitious ap-

proach to addressing homelessness with the aim of gradually eliminating it.

3. Making housing prices accessible to those without adequate resources:

There are various housing subsidy programs and social benefits available for

individuals without adequate resources.

It is important to note that Denmark continues to work on improving conditions

within the housing sector and addressing challenges such as housing shortages and

rising prices.

All people who are lawfully staying in Denmark are entitled to assistance under The

Act on Social Services (Lov om social service). The Act on Social Services obliges

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municipalities to help people, who are living in or are in the risk of homelessness or

unable to function in their own home, and must provide a number of services, cov-

ering temporary accommodation, such as repatriation centers and shelters.

In 2021, a new political agreement on combatting homelessness was agreed upon.

The ambition is to reduce the number of homeless citizens significantly and end

long-term homelessness with an increased focus on the Housing First-method. To

fulfill the ambition the government will provide more affordable housing and

strengthen the economic incentives for the municipalities to accommodate homeless

people in permanent housing and use of evidence based supporting methods in line

with the Housing First-approach.

Following the agreement, in May 2023 Danish parliament passed a bill on rearrange-

ment of efforts against homelessness.

The bill gives people in homelessness and in the risk of homelessness the right to

support by evidence based supporting methods in line with the Housing First-ap-

proach. The state shall reimburse 50% of the expenses incurred by municipalities in

respect of support-in-housing for 2 years following a stay in temporary and emer-

gency accommodation. With the bill municipalities are enabled to discharge a citizen

form a shelter on the condition that, the citizen is given adequate housing, social

support and an action plan.

Article E

–

Non-discrimination

The enjoyment of the rights set forth in this Charter shall be secured without dis-

crimination on any ground such as race, colour, sex, language, religion, political or

other opinion, national extraction or social origin, health, association with a national

minority, birth or other status.

Excerpt from the ESCR case-law:

Article E not only prohibits direct discrimination but also all forms of indirect dis-

crimination. Such indirect discrimination may arise by failing to take due and posi-

tive account of all relevant differences or by failing to take adequate steps to ensure

that the rights and collective advantages that are open to all are genuinely accessible

by and to all. The insertion of Article E into a separate Article in the Revised Charter

indicates the heightened importance the drafters paid to the principle of non-dis-

crimination with respect to the achievement of the fundamental rights contained

therein.

Article E does not constitute an autonomous right which could in itself provide in-

dependent grounds for a complaint. It has no independent existence and has to be

combined with a substantive provision of the Charter. Nevertheless, a situation

which in itself is in conformity with the substantive provision concerned may infringe

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this provision when read in conjunction with Article E, if that situation is of a dis-

criminatory nature.

Danish remarks

Denmark is already bound by other international instruments which stipulate similar

prohibitions of discrimination, notably the European Convention on Human Rights

(Article 14), the EU Charter of Fundamental Rights, the two UN Covenants and ILO

Convention 111.

Article E codifies the practice of the ECSR already applied to the 1961 Charter prior

to the adoption of the 1996 Revised Charter on the basis of the non-discrimination

clause in the Preamble to the 1961 Charter.

The article states that the rights within the charter shall be secured without discrim-

ination on any ground such as race, colour, sex, language, religion, political or

other opinion, national extraction or social origin, health, association with a na-

tional minority, birth or other status. Denmark shares the overall ambition of anti-

discrimination. The article includes concepts that are not directly addressed in Dan-

ish legislation. A more detailed and holistic analysis of the impact of the Article on

all areas and sectors is therefore needed in Denmark. The following remarks can be

shared at this stage.

As regards anti-discrimination at the workplace, national law prohibits discrimina-

tion with regards to employment on the grounds of race, colour, religion or belief,

political opinion, sexual orientation, sexual orientation, gender identity, gender ex-

pression, gender characteristics, age, disability or national, social or ethnic origin.

The list of protected criteria in Denmark is adequate and complies with current EU-

legislation and case law.

As regards gender equality in particular, the Revised Social Charter is not contrary

or in breach with the Danish Gender Equality Act in relation to Article E on anti-

discrimination. Nor does accession require amendments of the Danish Gender

Equality Act which states that no one may subject another person to direct or indirect

discrimination based on gender, sexual orientation, gender identity, gender expres-

sion or gender characteristics, cf. Article 2 (2). The purpose and scope of the above-

mentioned Article 2 (2) in the Gender Equality Act is found in Chapter 2 on anti-

discrimination. Chapter 2 applies to 1) every employer, authority and organization

within public administration and general business and 2) authorities and organiza-

tions and all persons who provide goods and services which are available to the pub-

lic irrespective of the person concerned as regards to both the public and private

sectors, including public bodies, and which are offered outside of private and family

life and the transactions carried out in this context.

As regards Danish seafarers, special attention is given to the new provision in Part

V, Article E, which is a general extension of the anti-discrimination criteria

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enshrined in the preamble of the original Social Pact. The same applies to ILO

Convention 111 on discrimination in employment and occupation. The criteria are

also broader than the criteria in the Danish Act on Prohibition of Discrimination in

the Labor Market, etc.

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Additional Protocol providing for a system of collective complaints

The ECSR monitors compliance with the Charter through a regular reporting by

States Parties.

The collective complaints procedure was introduced by the Additional Protocol

which entered into force in 1998. The argument for introducing a supplementary

procedure was to include the social partners and the international non-governmental

organizations in the monitoring of the Charter.

The complaints should raise questions in general concerning non-compliance of a

State’s law or practice with one or more of the provisions of the Charter. Complaints

about individual situations may not be submitted. Because of its particular nature,

complaints may be lodged without exhausting domestic remedies and without the

complainant organization necessarily being a victim of the alleged violation. Com-

plaints can only be made about cases within the organizations' area of competence.

16 Member States have ratified the Additional Protocol providing for a system of

collective complaints

. Four Member States have signed, but not yet ratified

. The

remaining Member States neither signed, nor ratified

The procedure

The ECSR receives complaints and prepares a report to the Committee of Ministers

within 4 months on whether or not the State concerned complies with the Social

Charter. On this basis, the Committee of Ministers can issue a recommendation.

In cases where the Committee of Ministers has addressed recommendations to States

Parties after the ECSR has found that the Charter has not been applied in a satisfac-

tory manner, States Parties will be asked to submit a single report on the follow-up

undertaken two years after the recommendation. The assessment of the ECSR on the

follow-up reports will then be transmitted to the Committee of Ministers. Depending

on the assessment of the European Committee of Social Rights, the Committee of

Ministers may:

close the case with a resolution,

renew the recommendation,

before renewing the recommendation, refer the case to the Governmental

Committee for further consultations. In the light of the outcome of these

consultations, the Committee of Ministers decides whether to close the pro-

cedure or renew the recommendation.

Member States that accept collective complaints submit statutory reports every four

years instead of every second year. The reporting required will take account of deci-

sions on collective complaints pertaining to the provisions reported on.

Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Finland, France, Greece, Ireland, It-

aly, Netherlands, Norway, Portugal, Slovenia, Spain and Sweden.

Austria, Denmark, Hungary and Slovak Republic

Full list - Treaty Office (coe.int)

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Danish remarks

Denmark has signed, but not yet ratified the Additional Protocol providing for a sys-

tem of collective complaints.

Denmark has previously hesitated to ratify the Additional Protocol, as the procedure

weakens the role of the Governmental Committee. In the Governmental Committee,

the national representative can clarify and elaborate the legal aspects of the country-

specific case. The members of the GC know the context and background of the cases

from the ongoing work in the committee as well as from the processing of current

cases and conclusions and can therefore take societal and other relevant considera-

tions into account in the assessment. However, in the collective complaints system

the legal assessment is separated from the political assessment. Furthermore, the

Committee of Ministers’ possibility to challenge the legal assessment from the

ECSR is limited.

Denmark is also reluctant due to the increased workload associated with the proce-

dure. The collective complaints procedure is an add on to the existing procedure

which, ceteris paribus, implies more work in terms of the ongoing processing of

complaints and the additional follow-up report after a recommendation. We are

aware that Member States that accept collective complaints submit statutory reports

every four years instead of every second year, but the procedure still entails addi-

tional administrative burdens to the Member State.

It is also worth mentioning that the social partners are invited under Article 27, par-

agraph 2, to be represented at the meetings of the Governmental Committee. Den-

mark is skeptical about the added value of the system, as Denmark already has a

well-organized and comprehensive organizational structure.