The Labour Court recently handed down a judgment that provides key guidelines for how seniority should be calculated when temporarily laying off staff. The parties involved were the Norwegian Air Traffic Controllers' Association, and Spekter and Avinor Flysikring. The main question to be decided was how seniority of workers should be understood in connection with the selection of staff in a temporary lay-off process – should it be total service time or continuous service time? The issue had not been previously dealt with in either Supreme Court case law or in practice by the Labour Court, so the judgment provides an important clarification for the calculation question.
Selection in the event of temporarily laying off staff is regulated in the main agreement between the Norwegian Air Traffic Controllers' Association and Spekter. According to the agreement, calculation based on seniority may be deviated from in the event of temporarily laying off staff when there are justifiable grounds (section 18, paragraph 3).
In 2020, Avinor Flysikring had to temporarily lay off air traffic controllers as a result of the decline in air traffic due to the covid-19 pandemic. In 2005 to 2006, several air traffic controllers resigned their positions to work abroad after their applications for leave of absence were rejected. This happened at the same time as Avinor Flysikring was working on a profit improvement programme, where senior management had concluded that there were too many air traffic controllers.
It later transpired that there was in fact a shortage of air traffic controllers, and in 2006 there was an extraordinary job advertisement calling on those air traffic controllers to return from abroad. Many of those who had left to work abroad entered into an agreement to take up a position when they returned to Norway. The Labour Court assumed that the interruptions in their employment had lasted between 11 months and in excess of two years. In the temporary lay-off in 2020, seniority was calculated from the last date of hire. For some of the air traffic controllers who had been abroad, long-service time in the company was not considered.
The Norwegian Air Traffic Controllers' Association issued a summons to the Labour Court and argued that when calculating seniority, previous service time should be included for air traffic controllers with interruptions in their service, so that the length of interrupted service was deducted. Spekter and Avinor Flysikring stated that previous service time should not be considered when calculating seniority, arguing that the decisive factor was continuous service time. Where seniority was to be calculated based on continuous service time, the Norwegian Air Traffic Controllers' Association stated that the employer could not completely disregard previous long-service time in the assessment of justification.
The Labour Court upheld Spekter and Avinor Flysikring in that seniority as a selection criterion for redundancy had to be understood as continuous service time.
The Labour Court went on to point out that the main agreement between the Norwegian Air Traffic Controllers' Association and Spekter was based on the main agreement between the Norwegian Confederation of Trade Unions (LO) and the Confederation of Norwegian Enterprise (NHO), and that the corresponding provision was understood to mean that seniority generally had to be interpreted as continuous service. However, the Labour Court made a specific assessment of whether the main agreement between the Norwegian Air Traffic Controllers' Association and Spekter should be understood in the same way as the main agreement between LO and NHO.
The Labour Court also emphasised that Avinor had an internal restructuring policy which stated that continuous service time was decisive in calculating seniority. The Norwegian Air Traffic Controllers' Association had provided several suggestions for the draft of this policy, without commenting on what was stated about the calculation of seniority.
Regarding the Norwegian Air Traffic Controllers' Association's allegation that the employer could not completely disregard previous long service, the Labour Court stated that "it is clear that previous service is relevant in the assessment of objectivity pursuant to the Main Agreement § 18 third paragraph". With regard to the question of whether previous service could be given such weight that there was a basis for deviating from seniority (calculated on the basis of continuous service), the Labour Court assumed that this would depend on a specific assessment of several factors, including:
- length of previous service;
- length and cause of the interruption in service; and
- length of subsequent continuous service.
Further, the Labour Court held that the assessment of these conditions must be seen in connection with the other justifiable considerations that the employer must assess when selecting staff to temporarily lay off.
For most collective bargaining companies, collective agreements provide guidance on the fact that the order of seniority is the starting point for selecting staff to temporarily lay off or for downsizing. Companies that are not bound by collective bargaining agreements will often determine seniority as a selection criterion in such processes. The Labour Court's judgment entails an important clarification regarding how seniority should be calculated unless otherwise expressly stated.
For further information on this topic please contact Ole Kristian Olsby or Nina Elisabeth Thjømøe 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.