The European Court of Human Rights (ECHR) decided in June 2002 to rule inadmissible a complaint brought against the Norwegian government by the Norwegian Federation of Offshore Workers’ Trade Unions. Although the case was not tried in depth, this development is nevertheless significant in that it is the first time that Norway’s practice of compulsory arbitration in industrial disputes has been considered by the ECHR.
The European Court of Human Rights (ECHR) made a decision in June 2002 to rule inadmissible a complaint filed against the Norwegian government by the Norwegian Federation of Offshore Workers’ Trade Unions (Oljearbeidernes Fellessammenslutning, OFS). The OFS claimed that the Norwegian government’s use of compulsory arbitration to curb the strike action taken by the organisation during the 1994 bargaining round was in breach of Article 11 of the Council of Europe's European Convention for the Protection of Human Rights and Fundamental Freedoms. The ECHR rejected the complaint, and held that the national authorities’ intervention was justified. Although the case was not tried in depth, it is nevertheless significant in that it is the first time Norway’s practice of compulsory arbitration has been considered by the ECHR. The use of compulsory arbitration to settle industrial disputes has always been a matter of great controversy, and Norway has on several occasions been criticised by international organisations for its use of compulsion to end industrial conflicts.
Background to the ECHR’s decision
In spring 1994, negotiations over a new collective agreement took place between OFS and the Norwegian Oil and Industry Association (Oljeindustriens Landsforening, OLF). Following the breakdown of negotiations, strike action was notified for a selected group of OFS members. This was soon followed up by a warning by OLF that it would lock out 3,600 OFS members at all fixed installations on the Norwegian continental shelf. The dispute was then brought before the State Mediator. Mediation failed, strike action was taken, and the Minister of Local Government and Labour recommended that the government should issue a provisional ordinance imposing compulsory arbitration of the dispute.
OFS took the 1994 case through the domestic judicial system to test whether or not the use of compulsory arbitration violated the Norwegian Constitution, or alternatively that a ban on strike was in breach of Norway’s international legal obligations. The Supreme Court ruled in 1997 (NO9704109N) that the practice of using compulsory arbitration in pursuance of major societal interests did not contravene general legal principles of constitutional law in Norway. Moreover, neither the European Convention for the Protection of Human Rights and Fundamental Freedoms nor the United Nations International Covenant on Civil and Political Rights, according to the Supreme Court, contain any detailed standards limiting state restrictions on the right to strike. Finally, the Supreme Court argued that emerging International Labour Organisation (ILO) practice in relation to its Conventions No. 87 (freedom of association and protection of the right to organise)and No. 98 (right to organise and collective bargaining) has never been fully accepted by Norway.
The findings of the ECHR
In the case brought before the ECHR (application No. 38190/97), the applicant (OFS) complained that the provisional ordinance of 1994 imposing compulsory arbitration violated Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 11 on 'Freedom of assembly and association' states that:
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state.
In its decision that the OFS application was inadmissible, issued on 27 June 2002, the ECHR found that 'while Article 11 §1 includes trade union freedom as a specific aspect of freedom of association this provision does not secure any particular treatment of union members by the state'. Furthermore, the legal practice of the Court has left contracting states with a certain degree of freedom as to how the rights of trade unions ought to be safeguarded, and as such restrictions imposed by a contracting state on the exercise of the right to strike do not alone give rise to an issue under Article 11. In any event, the Court further stipulated that the trade union concerned in this case had been allowed to exercise its right to 'protect the occupational interest' of its members, by means of collective bargaining, compulsory mediation, and indeed the right to strike for a certain, albeit short, period of time.
Despite the rejection of, or at best the uncertainties surrounding, the interpretation and precise meaning of freedom of association, and in particular the right to take strike action to protect members' interests, the Court went on to consider the viability of the 'exclusionary' paragraph two of Article 11 in this case. The Court found that, taking into consideration the consequences of a complete stoppage of work, and the fact that the motive behind the government's intervention was not purely economic, and the fact that the strike involved what was regarded as high-income groups of workers, the Norwegian authorities were justified in resorting to compulsory arbitration. There was, the Court argued, a 'reasonable relationship of proportionality between the interference with the Article 11 rights of the applicants and the legitimate aims pursued' by the government. However, the Court made reservations with regards to the general application of this decision on proportionality in all cases of compulsory arbitration in Norway.
Compulsory arbitration in Norway
When an industrial dispute has been stopped by governmental intervention in Norway, as in the case mentioned above, either through an Act of parliament or provisional ordinance, the dispute is then transferred to the National Wage Board (Rikslønnsnemnda) for settlement, during which time work stoppages are illegal. The ruling of the Board takes effect as a collective agreement, to which all the parties concerned are bound. Between 1953 and 1994, 50 Acts of parliament and 33 provisional ordinances were adopted on compulsory arbitration in labour disputes in Norway. In 2002, the number of incidences of such governmental intervention is approaching 100. Furthermore, between 1980 and 1994, OFS was subject to compulsory arbitration on eight occasions.
The ILO Committee on Freedom of Association has on several occasions criticised Norway for using compulsory arbitration in order to prevent or stop industrial conflicts. The ILO has argued generally that Norway’s use of compulsory arbitration is in breach of Conventions Nos. 87 and 98, because although work stoppages in the form of strikes and lock-outs were not explicitly mentioned in these Conventions when they were drafted in 1948 and 1949 respectively, such measures are now included as fundamental aspects of the right to freedom of association and collective bargaining, as interpretations has evolved over time. Only in those cases where work stoppages constitute a threat to essential services, thereby jeopardising the life, health and personal security of the population, may governmental intervention be permitted. In the three cases involving OFS that the ILO has considered, it found that the government’s resort to compulsory arbitration was not in line with Convention No. 87. In the most recent case considered by the ILO in 1991 (Case No. 1255), the Committee argued that state intervention 'was inconsistent with the principles of freedom of association according to which strikes may only be prohibited or restricted in the civil service or in services that are strictly essential in character'.
The European Committee of Social Rights, which oversees the Council of Europe's European Social Charter, has also raised concern about Norway’s use of compulsory arbitration. The committee stipulated in a draft recommendation in 1995 that the practice, when used in a dispute in the oil sector in 1990, was in breach of the European Social Charter's Articles 6 §4 and 31 §1. In relation to the 1994 OFS case, the Committee argued that, although it accepted that the implications of the industrial action taken would have serious consequences, it was not satisfied that the situation was so serious that it fell within the scope of Article 31 of the European Social Charter - ie that it was necessary to protect the public interest. In both cases, the Committee's proposals were rejected by the European Social Charter Governmental Committee, and no warning was given to Norway, but in the latter case the Governmental Committee drew attention to the fact that 'action by parliament or the government in the event of compulsory arbitration should not go beyond the limits laid down by Article 31 of the Charter' (Governmental Committee Report XIV-1, paragraph 184).
Commentary
The decision by the ECHR to rule the OFS case inadmissible does not really settle the controversies surrounding the use of compulsory arbitration in Norway. It was hoped that the OFS case would clarify the European Convention for the Protection of Human Rights and Fundamental Freedoms' provisions with regards to the rights and means available for trade unions to protect their members’ interests. Instead, ambiguity remains. The ECHR has previously been criticised for its tendency to reject from consideration cases that might not survive scrutiny by the Court, but which may deserve full examination (on their merits) on the grounds that they raise complex issues of law and are of a general interest (see Law of the European Convention on Human Rights, D Harris, M O’Boyle and C Warbrick, Butterworths, 1995).
Compulsory arbitration has been particularly important in stopping industrial conflicts in the oil sector (NO9710128N) as well as disputes in the public sector (NO9806173F). Oil is vital to the Norwegian economy, and strikes and lock-outs in this sector have often been interpreted as having significant consequences for the national economy at large and thus warranting intervention. Societal interests and health and safety have been the main rationale for intervening in the public sector, in particular in conflicts involving nurses and healthcare personnel (NO0203103N). However, although the government’s justifications for intervening may to some degree bear the imprints of international law, this has never really been the guiding principle in relation to the use of compulsory arbitration. On a number of occasions, the reasonableness and legitimacy of government intervention have been questioned because many of the disputes stopped have involved sectors and branches whose immediate importance to the well-being of the wider society have been put in doubt.
The use of compulsory arbitration cannot be separated from the system of industrial relations within which it is applied. There is evidence to suggest that in Norway it has become a bargaining tool in the hands of the labour market parties themselves, because it serves as a mechanism by which the social partners may pull out of a conflict without losing face. From this viewpoint, the government comes to the rescue in situations where the social partners have either lost control, or where trade unions face the risk of internal upheaval if an agreement is reached voluntarily (see 'Lønnsforhandlinger og konfliktløsning', T Stokke, doctoral thesis, FAFO 1998). Furthermore, many of its proponents argue that compulsory arbitration has been an important mechanism by which to foster compliance with the incomes policy compromise that has marked Norwegian industrial relations for some years (NO0209101N). It has prevented small groups from pursuing their own narrow interests at the expense of the long-term incomes policy goals of the government and the major social partners. Finally, compulsory arbitration is regarded as an effective way of solving interest disputes in a system where there are few legal inhibitions on the resort to industrial conflict, and where the organisational structure lends itself to a number of potential tension points.
It should be said, however, that in recognition of its international commitments and the growing criticism of Norway’s compulsory arbitration record, steps have been taken to examine and improve Norway’s standing in this regard - most recently in 1999, when the government set up a public committee with representatives from all the major employer and employee organisations, whose mandate included examining, and recommending changes to, the system of handling labour disputes (NO9906135F). The committee emphasised Norway's commitments under public international law. Furthermore, the committee found that the frequency of industrial conflict in Norway is not at such a level as to necessitate changes with regard to the right to strike or conduct a lock-out (NO0104129F). On the basis of this report, the Norwegian government put forward a proposal for changes to the Act relating to Labour Disputes in March 2002, in which no major changes were made (NO0205102F). (Håvard Lismoen, FAFO Institute of Applied Social Sciences)