A public committee examining changes to Norway's working environment legislation issued its report in February 2004. It recommends a range of minor and major alterations to the present legal framework, in areas such as discrimination, monitoring and control at work, information and consultation, and transfers of undertakings. The committee’s majority recommendations regarding changes to the rules on working time and temporary employment have met with strong opposition from trade unions.
In February 2004, a public committee considering the reform of working environment legislation put forward its proposal for a revised Act relating to Worker Protection and the Working Environment (Arbeidsmiljøloven, AML). The AML was adopted in 1977 and is the central legislative framework for health, the environment and safety at work, as well as regulating matters such as terms and termination of employment, working time and protection against unfair dismissal. The proposal for a new Working Life Act entails amendments to the existing legal framework in several areas, as well as technical revisions. The proposal has already generated significant controversy, not least because it provides for increased access to temporary (fixed-term) employment, and because of significant disagreements over the rules on working time and overtime. The social partners and other relevant parties have until June 2004 to consider the proposal. The government aims to have a proposal for a new Act considered by parliament (the Stortinget) some time in the spring of 2005.
Background
The committee was set up in August 2001 with a mandate to review the present working environment legislation. It had representation from all the major social partner organisations and relevant government ministries, as well as the Labour Inspectorate (Arbeidstilsynet). A lawyer, Ingeborg Moen Borgerud, chaired the committee.
The committee was given a wide-ranging mandate involving a broad appraisal of the existing legal framework, with a particular emphasis on whether or not recent developments in the labour market necessitate changes to rules relating to working time, the definition of 'employer' and 'employee', employee participation/cooperation, the 'psycho-social'/organisational working environment, and non-discrimination. Following a change in government in the autumn of 2001 - with the election of a centre-right minority coalition of the Conservative Party (Høyre), the Christian Democratic Party (Kristelig Folkeparti, KRF) and the Liberal Party (Venstre) - the committee’s mandate was extended to include a consideration of rules relating to employment protection and temporary employment (NO0210103F). Moreover, the committee was also asked to consider how the recent EU Directives on non-discrimination (2000/78/EC) (EU0102295F) and national information and consultation rules (2002/14/EC) (EU0204207F) - which apply to Norway by virtue of the operation of the European Economic Area agreement - might best be implemented in Norwegian working life.
In the midst of the committee’s deliberations, the government put forward a proposal for changes to the legal framework entailing a relaxation of overtime regulations. Parliament approved the new rules in the spring of 2003 (NO0304103F). In the following autumn, the government put forward another proposal allowing for increased use of temporary (fixed-term) employees, which led the trade unions to leave the committee in protest (NO0310103F). The proposal was withdrawn as part of the government’s state budget compromise for 2004 with the opposition Norwegian Labour Party (Det norske Arbeiderpartiet, DnA). The committee thus resumed its work with the trade unions present (NO0312101N).
The proposal
The committee has given thorough consideration to the more technical aspects of the Act, with a view to simplification. Although parts of the legal framework remains unchanged, the proposal entails a number of minor and major alterations to the present Act.
Work environment and safety work
Exiting provisions on preventive health, environmental and safety work will on the whole maintained in the proposed new legislation. The proposal emphasises that the employer is required to carry out systematic monitoring of the working environment, and that employees are responsible for participating in this work. The committee proposes the introduction of a provision safeguarding a satisfactorily psycho-social working environment. This is partly an attempt to put the present rules into concrete terms, but also reflects the fact that the committee believes such work environment factors to be of great importance in contemporary working life. More specifically, the proposal stresses the importance of protecting employees against harassment and violence, and that the work situation should be arranged in such a way as to enable communication and interaction with others. Employees would have a duty to report to the employer or safety officers about harassment and discrimination taking place at the workplace.
Employees reporting on poor conditions at their workplace (so-called 'whistle blowers') would be given unequivocal protection against retribution.
Current provisions providing for functions such as safety officers, company medical services etc would also be maintained. The trade union organisations involved did not achieve majority support in the committee for their recommendation to make company medical services compulsory in all companies.
Protection against discrimination
The committee made recommendations for legal changes in relation to non-discrimination in a preliminary report published in December 2002 (NO0301102N and NO0308105T). The proposed changes were approved by parliament in March 2004, and involve among other matters a new rule regarding age discrimination, as well as a general strengthening of protection against discrimination in working life. The committee now proposes the introduction of provisions that safeguard the equal treatment of temporary and part-time workers. It is a clarification of the stipulations of the EU Directives on fixed-term and part-time work.
Monitoring and control in working life
The committee recommends new provisions on monitoring and control in working life, to be achieved mainly through incorporating non-statutory rules and practices found in collective agreements into the legal framework. Monitoring measures should be unbiased, and balance the privacy needs of employees with the employer’s need for control. The proposal would also require the employer to inform the employees and consult employee representatives before measures are implemented. Special provisions are proposed with regard to the monitoring of e-mail correspondence, the registering of health information, and the carrying out of medical examinations. In keeping with legal practice, the proposal calls attention to the protection of employees’ privacy in such situations. The employer should not have access to employees’ private e-mails, nor to any other private electronic information.
Information and consultation
The committee was also asked to come up with recommendations as to how the EU Directive on national information and consultation rules was to be implemented in Norway. The government thus ignored the fact that the Norwegian social partners had expressed a wish to implement the Directive by means of collective agreement. In Norway, the employer’s duty to inform and consult employees is mainly regulated through collective agreements. Existing legislation does not provide for such a duty in companies and employees not covered by agreements (NO0309102T).
The committee proposes a general duty on companies to inform and discuss with employee representatives issues that are of significance to the employees. This duty would be made applicable to companies with at least 50 employees. Details about the types of situations in which the duty would come into play, when information should be given and how it should be given, are also outlined in the proposal. However, it is stressed that the new provisions would take effect only in situations where there is no agreement or equivalent legislation in force.
Working time
In the spring of 2003 the rules relating to overtime work were changed, including amendments allowing for increased use of so-called voluntary overtime based on individual agreements (NO0304103F). The alterations also allowed for an extension of the maximum allowed daily working time through agreement between the employer and the employee (with weekly working time of up to 78 hours over a maximum of 10 weeks). The trade union representatives on the committee wanted to revert to the regulatory situation prior to the changes made in 2003. Another minority in the committee (which included the chair) wanted to limit the period during which an employee, on the basis of a voluntary agreement, may work extended daily/weekly hours. The majority of the committee however made a proposal that does not deviate much from the present regulations as to the level of overtime allowed and the length of the maximum permitted daily and weekly working hours.
In some areas, there are recommendations to introduce more framework-oriented regulations than in the present Act. The majority on the committee - not including the trade unions - proposes replacing the detailed rules concerning shift and rotation work with a single general stipulation stating that the working time for the groups of workers involved must take into consideration the inconvenience caused by such work. The significance of this change in the short term is not at all clear, since this type of working time is usually regulated in collective agreements. The same committee majority also proposes more framework-orientated regulations regarding work on Sundays. The present strict regulations concerning night work should be maintained, according to the committee, although the majority proposes extending the number of hours defined as not being night work by one hour.
There is a consensus among the committee members that employees should be entitled to flexible working hours, when practicable. Currently, there are no such provisions in the legal framework.
There is also consensus about the need to limit the type of employees exempted from the most important working time regulations on grounds of the nature of their work (ie work that is management-related or of a particularly independent nature). Moreover, the proposal also aims to allow for greater opportunities for derogation from some of the working time provisions by means of collective agreement. In the present rules such an agreement can be entered into only at central level, while a majority of the committee wants to allow for the conclusion of such agreements at company level.
Temporary employment
The other controversial issue in relation to the revision of the AML is that of temporary (fixed-term) employment. Here a majority of the committee’s members propose changing the present regulations with a view to facilitating increased use of temporary employees. The trade unions, on the whole, wants to maintain the present rules.
The committee majority wants to see a general permission to employ workers for a fixed term of up to six months, with no further justification needed. The employer should be entitled to continue with this employment if the work concerned is prolonged, and those employed temporarily on the basis of this specific clause would be entitled to open-ended employment if they are employed on a temporary basis for at least a year over a three-year period. Moreover, changes are also proposed to the rules regarding the situations in which the nature of the work is considered as allowing temporary employment, entailing a broadening of the basis for such justifications. Temporary employment would still be allowed in relation to replacement of absent workers, as well as under some other conditions. Employees employed temporarily for a period of four years with the same employer would be entitled to open-ended employment. Under the proposal, derogation from this rule could be secured by collective agreement. The majority proposal resembles to a large degree the proposal made by the government in the autumn of 2003 (NO0310103F).
Transfer of undertakings
Transfers of undertakings have been on the agenda for some time in debates on Norwegian labour law, and the committee also considered changes to the legal framework in this regard.
The committee recommends the inclusion of occupational pensions among those rights to be maintained by the employee in the event of transfers of undertakings. In the present legal framework, Norway has opted to exclude pensions, as permitted by the relevant EU Directive. If an enterprise is transferred to another employer which does not have occupational pension arrangements, the employees affected by the transfer have the right to retain their existing pension schemes or individual schemes securing similar compensation. If, on the other hand, the new employer does have a pension scheme in place, this is made applicable to the employees, even if it is of a lower standard than their previous one.
Provisions are also proposed regarding employees’ rights and duties in relation to a change of employer in connection with transfers of undertakings. This issue has been subject to a number of court cases in recent years (NO9907142N and NO0101118N). The implication of the proposal is that employees are not vested with a duty to relocate to a new employer in the case of a transfer, but their employment relationship with the previous employer is terminated even if they refuse to relocate. In some cases however the employee will be entitled to be given priority in relation to other positions in the company of the previous employer.
The trade unions want to see provisions included that further safeguard the rights previously held by the employee in these areas.
Views of the social partners
The committee's legislative proposal has generated significant opposition from the Norwegian Confederation of Trade Unions (Landsorganisasjonen i Norge, LO), the Confederation of Vocational Unions (Yrkesorganisasjonenes Sentralforbund, YS) and the Confederation of Higher Education Unions (Utdanningsgruppenes Hovedorganisasjon, UHO). Their refusal to go along with the proposal is first and foremost directed at the provisions concerning working time and temporary employment. The general council of LO argues that the recommendations of the committee’s majority mean, in many areas, a weakening of employment protection, and it fears that this will lead to a 'colder and more brutal working life'. Unions within YS have also made similar statements. The Federation of Norwegian Professional Associations (Akademikerne), on the other hand, is more accommodating than the other main union confederations. As such it is not party to the dissensions made in the committee's report by the other confederations. The employers' organisations are by and large positive. The Confederation of Norwegian Business and Industry (Næringslivets Hovedorganisasjon, NHO) states that the report provides a good starting point for the completion of the work being carried out to modernise the legal framework.
Commentary
The report of the working environment committee is a comprehensive piece of work comprising around 600 pages, and includes, in addition to the proposed changes, a full technical evaluation of the legal framework. Overall, it may be said to be more of an adjustment of existing regulations than a completely new legal framework. Among other matters, the committee has not taken the opportunity to include in the Act other parts of the legal framework relevant to working life. However, new rules regarding monitoring and control in working life, as well as strengthened and more exhaustive requirements regarding the psycho-social working environment, suggest that the committee has been aware of the new working environment challenges facing contemporary working life.
In a number of areas, one may argue that the proposal represents a movement away from detailed legal regulations towards more framework-based regulations. In addition, departures from regulations by means of collective or individual agreements would be allowed in more situations. The opportunity to be exempted from the legal framework by agreement would be significantly expanded in relation to temporary employment and would also become more significant in relation to overtime/working time.
The report also demonstrates the impact of EU Directives on the Norwegian legal system in an increasing number of areas, which has, in many areas, lead to a strengthening of the rights of Norwegian employees.
The ambition of the government is to have a new Act approved by parliament in the autumn of 2005. Taking into consideration the present composition of parliament, there are strong reasons to assume that the committee's majority recommendations may be approved. However, there are also reasons to believe that the trade unions will make every effort to have the recommendations concerning temporary employment and working time altered. (Kristine Nergaard, FAFO Institute of Applied Social Sciences)