NORWAY Supreme Court rules against closed shop

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Supreme Court rules against closed shop
In November 2001, the Norwegian Supreme Court made a landmark ruling on closed-shop arrangements in collective agreements. The court stated that such arrangements, whereby employment is conditional upon employees’ or job applicants’ trade union affiliation, are in breach of paragraph 55A of the Act relating to Worker Protection and Working Environment (AML), as well as existing practice in connection with the European Social Charter.

The Norwegian Supreme Court (Høyesterett) issued an important ruling on 9 November 2001 on closed-shop arrangements in collective agreements. The Court stated that closed-shop arrangements, whereby employment is conditional upon employees’ or job applicants’ trade union affiliation, are in breach of paragraph 55A of the Act relating to Worker Protection and Working Environment (AML), as well as existing practice in connection with the Council of Europe’s 1961 European Social Charter. The ruling is significant because it sets a precedent for future cases involving the ‘negative right’ of employees freely to choose organisational affiliation, or to choose not to join a trade union organisation. The issue of closed-shop arrangements and the protection of the ‘negative right of association’ has long been subject to considerable debate and controversy in Norway, and there has been little consensus as to how far the domestic legal framework goes to protect employees’ negative right of association.

Closed shops in Norway
Freedom of assembly and association, and as such the right to form and join trade unions, is not established as such by law in Norway, and provisions that provide general protection against ‘anti-union’ activity by employers or other organisations are also absent. On the other hand, there has never been a tradition in Norway of prohibiting legally the creation of interest organisations, and indeed such organisations have always enjoyed a significant degree of protection within the legal system. In the spring of 1999, parliament (Stortinget) approved a law to strengthen the formal position of basic human rights in Norwegian law (NO9812104F). To this end, several international humans rights declarations were incorporated into the national legal framework by means of a special Act (Lov av 21 Mai 1999 Nr. 30). The general view has been that both the positive and the negative right or freedom of association are covered by the legal framework. However, while the former right to associate remains undisputed, the latter right not to associate has been subject to significant controversy, since it is in many cases seen to clash with the collective right of trade unions to enter freely into agreements.

The freedom to organise is also recognised in most collective agreements. In the basic agreement between the Norwegian Confederation of Trade Unions (Landsorganisasjonen i Norge, LO) and the Confederation of Norwegian Business and Industry (Næringslivets Hovedorganisasjon, NHO), the two confederations recognise employees’ and employer’s right to associate. The general interpretation is that this mutual recognition is applicable to both the positive right to form and join an organisation and the negative right of association. Similar clauses may be found in other Norwegian basic agreements and collective agreements .

There are only a handful of ‘union security clauses’ left in operation in Norway today, but closed-shop arrangements have until recently been relatively common within the internal organisation of LO, and in organisations and businesses owned partly or fully by LO. These union security arrangements are all established in collective agreements, which require employees within LO’s own organisation and business activities to be members of an LO union. It is estimated that approximately 5,000 employees are currently subject to such clauses within the LO family of organisations. However, the number of such clauses has been significantly reduced in the last couple of years as a result of LO’s own internal evaluation of the practice.

The Supreme Court ruling
The subject of the recent Supreme Court case was a closed-shop clause in the collective agreement between the LO-owned Norwegian Peoples Aid (Norsk Folkehjelp), which is organised in the Labour Movement’s Employer Association (Arbeiderbevegelsens Arbeidsgiverforening, AAF), and the LO-affiliated Norwegian Union of Employees in Commerce and Offices (Handel og Kontor, HK). The variety of rulings that the case has been subject to on its way through the Norwegian legal system very much reflects the sheer complexity of the matter and the fact that until now there has not been no legal precedent with regards to the negative right to associate.

On two previous occasions, the lower courts maintained in this case that the practice of closed shops is not prohibited according to Norwegian law (NO9909153N), and that international declarations and conventions remain unclear on the matter. However, n November, the Supreme Court reversed the previous rulings by arguing that that the closed-shop clause in the collective agreement between Norwegian Peoples Aid and HK was indeed illegal according to Norwegian law.

The court based its decision, among other considerations, on the AML’s paragraph 55A on ‘engagement’, which states that: ‘The employer may not demand, when advertising a vacant post or in any other way, that applicants supply information concerning their political, religious or cultural views or whether they are members of any labour organisation. Neither may the employer effect measures to obtain such information by other means (…)’ On face value, this provision seems to be primarily concerned with the act of gathering such information, but the legal and general interpretation has been that the intention behind the introduction of the provision, and behind subsequent revisions over the years, is to prevent the exclusion of people from working life on grounds such as organisational affiliation. Nevertheless the legal scope of the paragraph had previously not been regarded as great enough to cover closed-shop clauses.

The Supreme Court based its decision, among other factors, on a previous Supreme Court ruling in a case concerned with the positive right to associate, in which an employer had set as a condition for employment that the applicants refrained from joining a trade union. In this case, the AML’s paragraph 55A was invoked on grounds that this condition for employment set by the employer was of such a nature as to provoke the submission of information about an employee’s organisational affiliation. Furthermore, the Supreme Court also placed special emphasis on recent developments in relation to the European Social Charter, to which Norway committed itself in the early 1960s. The expert committee enforcing the Charter has, according to the Supreme Court ruling, in recent years emphasised that Article 5 of the Charter, on the right to organise, also protects the negative right of association, and that closed-shop arrangements are contrary to the Article’s intentions. In its national report on the Norwegian situation from 1997 to 1998, the expert committee stated that ‘according to Article 5 of the Charter there can be no sort of obligation to become or remain a member of trade union.’.

Commentary
The issue of freedom of association has been a recurring theme for several decades in Norwegian working life, and the main focus of attention has been on the negative right of association. The recent Supreme Court ruling is significant in that it sets a precedent in an area of Norwegian labour law where there has previously been an ‘authoritative vacuum’. However, this is not to say that the ruling is not controversial, and that the issue of ‘union security clauses’ has been resolved.

The issue has also been on the political agenda on numerous occasions, most recently in 1999 when parliament turned down a proposal to introduce an Act safeguarding the negative right of association (NO9706114N). The argument was that Norwegian legal framework, through its commitments to various international declarations of human rights, is sufficiently able to accommodate the issue of the negative right to organise, despite the widely recognised fact that international law remains ambiguous on the matter. Now that there has been a Supreme Court ruling on the matter, it is highly unlikely that the government will do anything to alter the legal framework.

Finally, LO’s closed-shop practices have been criticised by other unions for being undemocratic, and its critics have often referred to international basic human rights. Furthermore, the use of such arrangements is regarded as outdated, and it has been stressed that there are better means by which to achieve the same trade union objectives. As such, LO has in recent years reviewed its practice, and has, as mentioned above, abolished it in some areas. Now, and as a result of the ruling by the Supreme Court, Norwegian People’s Aid has signalled that it too will review its clause, with the intention of eventually abolishing it. (Håvard Lismoen, FAFO Institute of Applied Social Sciences)

About this record
Format this document for printing.
Human rights and Norwegian labour law
Closed shop practice tried in court
Parliament turns down legislative proposal to prohibit closed shops

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