Human rights and Norwegian labour law

A proposal for the incorporation of basic international human rights into the Norwegian legal framework was put forward by the government in October 1998. This move would place "closed-shop" trade union membership arrangements under particular pressure. At present, such arrangements mainly exist in companies and organisations associated with the Norwegian Trade Union Confederation (LO), and LO is now considering other mechanisms for retaining influence in collective bargaining in these areas.

A proposal to incorporate international declarations of basic human rights into the national legal framework was put before parliament on 9 October 1998 by the Norwegian government. The declarations have implications for labour law and industrial relations in a number of ways.

Background

Human rights have always played an important role both in public debates and in the legal traditions of Norway. Previously, the ratification of international conventions and declarations was the dominant way of ensuring respect of such rights. In 1989, a public committee was asked to consider new and more binding ways of ensuring respect of these rights, and to deliberate on which of the many international conventions and declarations should be given priority. The work of the commission was completed in 1993 (report NOU 1993:18), and was then issued to relevant organisations and institutions for extensive consultation. The process was coordinated by the Ministry of Justice, and has implications for the Norwegian constitution, for a number of special acts and decrees, for the legal tradition, for public debate and for the protection of citizens.

The proposal

The governmenrt proposal for new legislation (Ot prp no 3 1998-9) largely follows the recommendations from the public committee. A special act is proposed, which refers to three specific human rights declarations. The special act derives its authority from an amendment to the Norwegian constitution in 1994. This method is called incorporation of human rights, and is preferred by the committee to alternative methods.

Regarding the choice of declarations to be incorporated, the preferences are:

• the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECPHR, 1950);

• the International Covenant on Economic, Social and Cultural Rights (UN-ESC, 1966); and

• the International Covenant on Civil and Political Rights (UN-CP, 1966).

In most cases, the present situation in Norway is seen to conform with the declarations concerned. However, with regard to the freedom of association and the right to strike, the incorporation might have implications for current regulations and practice in the Norwegian labour market.

Disagreement

During the consultation process, there was a general consensus about the proposals put forward by the committee in 1993. Among those organisations which had divergent views, the Norwegian Confederation of Trade Unions (Landsorganisasjonen i Norge, LO) wanted the International Labour Organisation (ILO) Conventions Nos. 87 (freedom of association) and 98 (right to organise and to bargain collectively) to be incorporated. The government regards these conventions as being too specific to be incorporated. The incorporation of the conventions would have restricted the use of compulsory arbitration in Norway to essential services. The use of compulsory arbitration has on several occasions been criticised by ILO bodies as being in conflict with Conventions Nos. 87 and 98 (NO9704109N).

LO also stated that it could not accept incorporation of the freedom of association in the "negative" sense - ie a ban on "closed-shop" trade union membership arrangements. Closed-shop arrangements, while not common in Norway, exist in the cooperative movement (including parts of the wholesale and retail trade) and in a combined bank and insurance company and some newspapers controlled by LO. Some voluntary organisations connected to the trade union movement and employees of the member organisations of LO are also covered. The arrangements are in these cases regulated by collective agreements, which stipulate that the employees are obliged to be members of a LO union (NO9706114N).

The EPCHR and the UN-ESC include provisions that have been interpreted to cover the "negative" aspect of the freedom of association. However, rulings from the European Court of Human Rights on this issue are not decisive, as they are concerned with specific cases. Thus, the government states that it does not believe that the incorporation of these two international conventions will alter existing closed-shop arrangements.

Commentary

The debate on human rights and labour regulation in Norway is important in two respects; on the question of closed-shop arrangements and on the use of compulsory arbitration.

Closed-shop arrangements have for several years been under pressure from unions outside LO and from political parties represented in parliament. Critics have often referred to basic human rights, and the proposed incorporation of the EPCHR especially is thus not surprising. The extent to which existing closed-shop arrangements will be altered by incorporation of the EPCHR is a cause of dispute among both lawyers and labour market organisations.

Closed-shop arrangements as such are not in any way essential to union strength in Norway, covering as they do roughly 20,000 LO members. Currently, there is a debate taking place within LO with a view to find possible means of controlling the collective bargaining areas in question by means other than closed-shop clauses (reported in Dagens Næringsliv, 21 November 1998). Two matters seem to complicate this process. First, some of the arrangements are historically coupled with a ban on strike action, providing that the employees concerned are subject to the same pay and working conditions as in similar companies. Thus, the employers' party to the collective agreements would lose a competitive advantage in the event of labour conflict. Second, a large number of employees covered by the arrangements are organised into one union, the Norwegian Union of Employees in Commerce and Offices (Handel og Kontor i Norge, HK). Thus alterations to the arrangements might imply a loss of members, and loss of union dues for this union. That said, many see the current closed-shop arrangements as outdated.

The use of compulsory arbitration has since 1982 come under pressure from both ILO Conventions and other human rights declarations. If the ILO Conventions were to be incorporated in Norway, this would probably trigger a major debate on collective labour law and dispute resolution. Several proposals from the Labour Dispute Committee (Arbeidsrettsrådet) - including, for example, permanent restrictions on the use of strikes (NO9706112F) - would become topical because of the restrictions in the use of ad hoc compulsory arbitration implied in the ILO Conventions. The omission of the ILO Conventions from the incorporation does not signal the final position of the current government in this debate, but makes the problems somewhat less pressing.

The proposal from the government seems to have support in parliament, and it is not likely that it will be seriously altered. A final decision is expected in the spring 1999 parliamentary session. The impact of the incorporation of various conventions will still be a matter for debate, and the courts will have to decide the concrete implications for labour law and industrial relations. (Torgeir Aarvaag Stokke, FAFO Institute for Applied Social Science)