A ruling by the municipal court of Oslo on 18 August 1999 stipulates that the practice of closed shop is not prohibited by Norwegian law. Many employees in enterprises connected to LO, and employees within the administration of LO, are subject to closed shop practice. As a result of the ruling the issue may soon be back on the parliamentary agenda.
A ruling by the municipal court of Oslo on 18 August 1999 stipulates that the practice of closed shop is not prohibited by domestic Norwegian law, and only partially prohibited by the European human rights convention (ECHR). Three international human rights declarations were incorporated into the Norwegian legal framework, by means of a human rights Act in May 1999, among them the ECHR (no9812104f). In the case filed against the Norwegian People's Aid (Norsk Folkehjelp), an aid organisation connected to the labour movement, by a former employee, the issues considered were the legality of temporary employment contracts, unfair dismissal and the legality of contractual closed shop clauses. The plaintiff recovered judgement for the first two claims, and as such was rewarded damages, but failed in the latter claim concerning contractual closed shop arrangements.
The court ruled that the practice of closed shop is not in breach with domestic Norwegian law, because the negative right to organise is not covered in the national legal framework. The court argued that there is a long tradition for closed shop clauses in some areas of Norwegian working life, and that the issue's political sensitivity is not sufficient ground on which to rule in favour of the plaintiff. Furthermore, the court also found that the ECHR does not sufficiently cover the negative right to organise, referring to among others two previous court rulings by the European Court of Human Rights; the British rail-ruling of 1981 and the Gustafsson-ruling of 1996. The court's interpretation is that closed shop arrangements are prohibited by the ECHR only in so far as no notice of such arrangements have been given to employee in advance of his/her employment contract. Such prior warning had been given in the case of the lawsuit against Norsk Folkehjelp. Nevertheless, the court argued that the sanction used was to disallow the signing of collective agreements other than the one existing in Norsk Folkehjelp, and not dismissal as such.
Approximately 20 000 employees in enterprises connected to the Norwegian Confederation of Trade Unions (Landsorganisasjonen i Norge, LO), and employees within the administration of LO, are subject to closed shop practice. LO is at present undertaking an internal evaluation of its closed shop arrangement, and has signalled that some of its associated enterprises may soon be exempted from the practice.
The issue of closed shop arrangements was also considered in May 1999 by the Norwegian Parliament, after a proposal was put forward to have the negative right to organise established in domestic law. A majority in Parliament rejected the proposal, although the same majority could not agree on the legality of LO's closed shop practice. Parties in Parliament have committed themselves to bring the issue back on the parliamentary agenda, if the court ruled that the legal framework was insufficient to properly deal with the issue of closed shop arrangements.
By Haavard Lismoen