Introduction
Background
Facts
Decision
Comment
On 21 March 2022, the Labour Court passed a judgment regarding an agreement applicable to a large number of private care companies that were members of the Confederation of Norwegian Enterprise (NHO). Agreement 453 determines that weekly working hours on average should not exceed 35.5. Normally, the time limits in the wage agreement are binding for employees and their employer to prevent the establishment of different limits for different employees.
However, many companies that are bound by this agreement have entered into local special agreements in so-called "fellow-living rotation scheme" with an average weekly working time of up to 60 hours. In its judgment, the Court stated that Agreement 453 does not restrict the right to regulate the working hours for fellow-living rotation scheme personnel who are covered by local special agreements.
A number of companies in the health and care sector have users who need to have ongoing contact with the same caregiver. This is solved by employees working several days in a row, followed by longer periods of time-off. As the scheme presupposes that the employees work long working periods, such shifts cannot be carried out within the usual rules of the Working Environment Act.
The regulations on fellow-living rotation schemes, therefore, make exceptions from some of the normal working time rules in the law and extend the maximum limit for weekly working hours. However, both collective wage agreements and individual employment agreements can limit which schemes can actually be established.
The case before the Labour Court concerned the use of Agreement 453 between the NHO and the Norwegian Confederation of Trade Unions with the Norwegian Union of Municipal and General Employees. The employee side stated that the weekly working hours, which exceeded the collective wage agreement limit of 35.5 hours, were contrary to the collective agreement within the fellow-living rotation scheme.
This would entail two key consequences:
- companies covered by Agreement 453 would have to change their rotation scheme, as a 3-7-4-7 rotation would be contrary to the maximum limits for weekly working hours; and
- employees covered by a fellow-living rotation scheme with more than 35.5 hours of average weekly working time could claim for overtime pay.
The Labour Court based its assessment on the fact that, since becoming applicable to some private care companies in 2013, many such companies had established fellow-living rotation schemes within the framework of Agreement 453. This was not considered a problem when the companies were bound by a collective wage agreement.
The Labour Court also found that Agreement 453 was not intended to limit the right to regulate the special working time scheme, which the fellow-living rotation scheme regulations allows for in special agreements.
The employee side, therefore, did not successfully achieve its demands to reorganise their rotation scheme and receive overtime payments.
The judgment was an important victory for employers and it ensures that member companies of the NHO that are bound by Agreement 453 can continue to use fellow-living rotation scheme by way of an agreement with the employee representatives. However, the judgment contains important clarifications:
- The Court stated that the fellow-living rotation scheme regulations were not an independent basis for establishing a fellow-living rotation scheme that only works in the company's favour. The regulations, therefore, do not supersede the collective agreement. The use of the regulations' extended working time framework for NHO member companies presupposes an agreement between the parties. This is different for companies that are not bound by a collective wage agreement, which can arrange fellow-living rotation schemes in line with the framework in the regulations with the individual employee.
- The judgment does not have significance beyond the scope of Agreement 453. Further, the Court does not take a stand on whether fellow-living rotation scheme practiced in companies that are bound by other agreements is valid. The Court must decide this on a case-by-case basis.
For further information on this topic please contact Ole Kristian Olsby or Lise Gran at Homble Olsby | Littler by telephone (+47 23 89 75 70) or email ([email protected] or [email protected]). The Homble Olsby | Littler website can be accessed at www.homble-olsby.no.