The Labour Court of Norway

1. Regulation of working conditions in the Norwegian system

As regards regulation of working conditions in the Norwegian system statutory law is a comprehensive and fundamentally important part of the labour law. Norwegian Labour Law includes several Acts, with the Worker Protection and Working Environment Act as the most comprehensive and important. Legislation covers almost all categories of employment and most questions arising regarding employment.

However, the statutory law is complemented by other sources.

Even if a large number of benefits, terms and conditions of employment are covered by legislation, this however does not restrict the scope of collective bargaining.

Consequently, collective agreements are a further source of major importance to the regulation of wages and working conditions.

Collective agreements are concluded in great numbers, at various levels, both centrally and locally, and differing in content.

A great deal of workers are covered by a collective agreement.

In the public sector almost 100 per cent of the workforce is organized and are subordinate to a collective agreement. The corresponding account in the private sector is approximately 50 per cent. This means that the terms and conditions in collective agreements affect many workers, and the interpretation of these agreements are therefore of great value and of considerable importance for the parties of the agreement.

With regard to wage and working conditions, collective agreements may contain more detailed regulation than can be found in statutory law. The collective agreements can regulate such issues as minimum wage, working time and the right to casual leave. In many cases provisions in collective agreements differ from statutory law. A trade union with at least 10 000 members can agree to differ from the working time provisions in statutory law.

The collective agreements are also supplementary means to the individual working contract.

The individual employment contract, subordinate to a collective agreement where applicable, consequently is of considerable importance in a great number of employment relationships. As a general rule the individual employment contract cannot derogate from the collective agreement, neighter to the detriment of employees, nor by more favourable provisions than is regulated in the collective agreement.

Where the individual contract doesn’t contain provisions, for instance, regarding weekly working time, the provisions in collective agreements must be taken under consideration, provided that the employer, or his organisation, has signed a collective agreement. This applies even if the employee is not a member of a trade union.

The collective agreement is a binding contract between a trade union and an employer or an employer association, and hence legally binding. The scope of the collective agreement gives further information as to subordinate organisations, employers and employees covered by the agreement.

The collective agreement is understood as an agreement not to differ in terms and conditions between workers within the same category that are covered by the agreement signed by an employer. This means that the terms and conditions in an agreement also may come into force to employees outside the trade union.

Accordingly, collective agreements are an important source of regulation between employer and employee and their organisations.

Developing gradually, both in terms of coverage, substantive content, and collective bargaining, the collective agreements have played a major role in the subsequent development of labour law, however in increasing interaction with legislation which has also gradually grown more comprehensive and more specific.

2. The Labour Dispute Act

As collective bargaining developed, the need for a legal framework soon became evident. Likewise, it became necessary to create measures to facilitate the resolution of disputes of interests, and the conclusion of collective agreements. To safeguard the compliance with, and reliance on, agreements entered into, and to ensure that those affected may have recourse to resolution of legal disputes by a neutral third party, are essential prerequisites to a functional system of collective bargaining.

In the 1915 Labour Disputes Act, witch entered into force 1 of January 1916, the fundamental ideas underlying the act were the promotion and strengthening of collective agreements as an instrument for regulating wages and working conditions and the creation of machinery for peaceful solution of industrial disputes.

The act established the peace obligation and formalised the distinction between disputes of interest and disputes of rights previously embodied in collective agreements.

For disputes of interests, a system of conciliation was introduced, leaving open recourse to industrial action if conciliation failed.

For disputes of rights the Labour Court was established as a special institution to deal with matters relating to collective agreements, and the lawfulness of industrial action.

The basic considerations behind the creation of this special court were to get a machinery capable of rendering solutions for disputes concerning collective agreements more quickly than the ordinary court, and to possess expert knowledge of the law and practice of industrial relations and collective agreements in general.

The presently valid Labour Disputes Act was adopted in 1927. It was, however, mainly a technical revision of the 1915 act and upholds all the basic features of the original act.

In 1958, the Public Service Labour Disputes Act established a system of collective bargaining and collective agreements for the state civil service along the same lines as the Labour Disputes Act, including the role of the Labour Court. Since 1957 civil servants in local and regional government fall within the scope of the Labour Disputes Act.

3. The Labour Court

3.1. Jurisdiction

The Labour Courts jurisdiction is positively limited by the Labour Disputes Act.

The jurisdiction is confined to disputes pertaining to collective agreements and industrial action. As I already have mentioned, the Court handles cases concerning interpretation, validity and existence of collective agreements, questions of breach of collective agreements and of the peace obligation, and claims for damages resulting from such breaches.

At the outset the Labour Court has jurisdiction only in cases where claims are based upon a collective agreement.

Furthermore the Court does not have jurisdiction in individual disputes, with two exceptions:

Individual workers and employers are liable in damages for breach of a collective agreement or of the peace obligation. Claims for indemnification in such cases lie within the Labour Court’s jurisdiction.

In addition, in a case concerning a collective agreement, the Labour Court may give a decision on individual claims being contingent on the decision given on the collective agreement issue at hand. Solely provided that this can be done without it being necessary to resolve further questions on evidence or legal problems in order to dispose of the individual claims.

This means that the individual claims must follow as an direct consequence of the judgment.

In all other matters of labour law, jurisdiction resides with the ordinary courts. Accordingly, it is the ordinary courts that have jurisdiction over rights issues concerning individuals, whether that be statutory or contractual rights, such as dismissals, wage claims, discrimination in hiring or employment, restrictive covenants, work safety and protective labour legislation, pensions and social security.

As already mentioned, the Labour Court has a strictly limited power to determine claims based on individual employment contract. Such claims may be adjoined to a Labour Court case, by the competent organisation, for instance the collective agreement party having the right of action. The organisation does however not have obligations or a right to adjoin an individuals’ claim to a collective agreement dispute. Nor is the right of the individual to bring a claim in the ordinary courts, dependent on a refusal by the organisation to pursue the individuals’ claim in a case before the Labour Court.

Within it’s domain, the Labour Court has exclusive jurisdiction. The Courts decisions are final, and are not subject to appeal to any other court, with the mere exception of forum disputes.

3.2. The composition of the court differ from the ordinary courts

The Labour Court is composed of a President and six members, three judicial judges and four judges nominated by the labour market parties. The President and one of the professional judges must have all the qualifications prescribed for a Supreme Court Judge. In practice, however, both neutral members alongside the President have been appointed among persons who meet those requirements.

The Court is organised as a one-division court. Each case is heard by the full Court and decided by majority vote of the seven sitting judges. In fact in two thirds of the cases, the judgment is unanimous.

The President and the Vice President are the only judges in a full time position with the court. The remaining judges serve on a part time basis, appearing when required. The four lay judges are chosen among persons nominated by the major organisations. Only employers’ associations with at least 100 members and 10 000 employees, and any trade unions with at least 10 000 members, may each nominate two members with substitutes.

Ever since 1916, the permanent lay judges have been appointed upon nomination by the largest confederations. Many substitute members are appointed among nominees of other organisations.

No judge may be an official, or member of the board of any trade union or employers’ association. At the outset, the permanent judges shall judge in cases before the Labour Court. However, pursuant to the Labour Disputes Act, the judges appointed by the organisation whose case is under consideration for the court, shall act as a judge. Nonetheless, it is fundamental that all lay judges sit in the capacity of an impartial and objective judge, and not as a representative of the organisation by which they were nominated. The nominated judges safeguard expertise and that the case is seen by parties from both sides of the working life.  This promotes the judgments legitimacy and authority.

3.3. In the court

The manner in the Court is formal. All the parties show respect both for the judges and for the other party and his representatives. The judges sit in front of the parties which are placed on each side of the Courtroom, with the witness box in the middle. The President of the Labour Court chairs the hearing and first he introduces the case and asks the parties if they have objections about the composition of the court.

Then the parties are given the floor for their opening speech. First the plaintiff, then the defendant. It is up to the laywers to deside the length of the opening speech, but usually it takes approximately one or two hours. After both parties have presented their opening speeches, the representatives of the parties and witnesses are examined. At the end of the hearing the lawyers present a short pleading. After the conclusion of the hearing, the judges sit in privat to discuss the case. As a general rule, the pronouncement for judgment are given within a few weeks.

4. Cases before the Labour Court

As already mentioned, not every case is to be handled by the Labour Cort.

The LDA makes distinctions between “disputes of interests” and “disputes of rights”. Only the disputes of rights are to be handled by the Labour Court of Norway.

Interests disputes are those arising from the failure of collective bargaining when parties negotiating the conclusion, renewal or revision of a collective agreement fail to reach a compromise and bargaining ends in a deadlock. In these cases there is, in principle, no pre-existing right but merely the interests of one or both parties to create rights by laying them down in a collective agreement which is still to be concluded. These disputes may be subject to conciliation or mediation, and may be the object of industrial action.

Rights disputes, on the other hand, are those pertaining to the existence, interpretation or implementation of existing rights based on a legal text, whether in statute law, in a collective agreement or in an individual employment contract. Rights disputes generally pertain to some form of adjudication.

4.1 Individual or collective

Another distinction is found between individual rights disputes and collective rights disputes. The rights disputes resolution system is equally firmly based on a distinction – strict, in principle – between individual rights disputes and collective rights disputes. This latter distinction corresponds closely with a division of jurisdiction between different courts.

Disputes about breach of the Peace obligation also come under the Labour Court’s jurisdiction. A dispute about interpretation or validity over a collective agreement in force can not be solved by industrial action. This is a dispute of law and must be solved by negotiations, or if negotiations fail, by the Labour Court. This implies that during the contract period there is a peace obligation. This means that industrial action during the contract period is breach of the contract. Claims that the peace obligation is breached are to be handled by the Labour Court.

Industrial action can only be carried out when the collective agreement no longer is in force and then only when the procedural obligations prescribed in LDA is fulfilled. In both cases breaches are to be handled by the Labour Court.

When concerning an ongoing industrial action, the case is given priority and is handled by the Labour Court within four or five days.

In most cases regarding breaches of peace obligations the disputes concern evidence on which this is an action in accordance with the Labour Disputes Act or not. The legal requirements are that the action is a collective conspiracy.

If the Court considers that the industrial action is breach of the peace obligation, the court can take under consideration questions about indemnification for damages caused by the action.

Most of the cases before the Court are pertaining interpretation of the collective agreement. The problem in such cases is that the parties of the agreement interpret and apply the provisions in different ways. The most cases pertaining interpretation of collective agreement regards disputes about wage and other economic requirements, for instance regarding working time disputes.

In 2003 32 cases were brought before the court. 31 of this cases concerned the Labour Disputes Act and one the Public Servants Labour Disputes Act. Non of the cases pertained questions as to whether an industrial action was breach of the peace obligation.

40 cases were taken under consideration of the Court in 2003. In 19 of these cases the court gave a judgment. Four was settled by judgement by consent, while 17 were made up or withdrawn by the parties before the main hearing.

The amount of cases brought before the Labour Court every year varies, but over the last few years there has been a gradual decline.

5. Labour Disputes Act lay down some rules of procedure in Labour Court cases

5.1. There is a requirement of right of action

In collective agreements’ disputes, only the superior party to the agreement, normally a central organisation, may act as plaintiff. Likewise, at the outset only the superior party on the other side may act as defendant.

In Labour Court cases the organisation parties (trade unions, employers’ associations) appear and act in their own name as well as on behalf of their members (subordinate organisations, individual employees or employers being bound by the collective agreement). However, a suit may be filed also against members, for instance to declare a decision by an employer invalid or against employees for the payment of damages. In such instances, the relevant member must be sued and then obtain status as a defendant alongside the defendant organisation party.

Furthermore, a case will normally not be admitted by the Court unless the dispute has been subject to negotiation between the parties to the collective agreement in question before a complaint is filed. The Labour Disputes Act lays down a requirement that prior negotiation on the disputed issue(s) – so-called “dispute bargaining” – has been conducted or that, at least, serious attempts to engage the opposite party in “dispute bargaining” have been made. That requirement is of essential practical importance.

5.2. Procedure

The rules pertaining to the procedure in labour court cases today are contained in the Labour Disputes Act, as amended. The procedural provisions of the LDA are neither numerous nor detailed and the more comprehensive rules of the Civil Procedure Act and the Courts Act are not directly applicable. However, pursuant to the Court’s own case law those general rules are applied by the Labour Court to the extent that they are found to be suitable and compatible with the provisions of the LDA.

Although there are a number of differences, for example regarding the status of parties and litigation costs, the essential features of the procedure in labour court cases correspond to the ordinary civil procedure. Nevertheless, the legal situation leaves the Labour Court a certain freedom in procedural matters, which allows for a high degree of expediency, if needed, and somewhat less formalised proceedings than in the ordinary courts.

5.3. Regarding preparation and hearings

The preparation of the case is in writing but the President may summon the parties to one or more oral preparatory meetings, in which he may also act in a informal conciliation function with a view to seeking an amicable settlement. As a general rule, an oral hearing must be conducted in all cases. The hearings are as a rule public. Under the hearing, questioning is freely done by all judges.

5.4. The judges must follow the adversarial system

At the formal outset, for the factual aspects of a case, the court may only consider, and can base its decision solely on the evidence that has been presented and confirmed to the court during the oral hearing of the case.

As regards the legal aspects of the case, the court is bound by the claims presented by the parties. The court may not decide the case beyond the parties confines, such as by awarding the plaintiff more than she or he has claimed or less than the respondent’s minimum claim. At the outset, the court is also bound by the pleadings in law, or legal grounds, submitted by the parties in support of their claims. For instance, if prescription (or the expiry of the time limit within which a claim may be made) has not been pleaded, the court may not decide the case on that basis. Within these limits, the court is wholly free to interpret and apply the law.

The Labour Court is under an obligation to see that full information is at hand in all cases. The Labour Court may require the parties to present further information or evidence on points of fact. This may also be done by the President during the preparation for a hearing. Moreover, the President or the Court may subpoena any necessary witnesses or documents. Accordingly, the Court has, in practic, greate influence as regards to which evidence the parties put forward. 

The principle of the “direct presentation of evidence” applies. Representatives of the parties, witnesses and experts, as the case may be, also have to make statements and are examined orally in court.

The use of telefon in examination of witnesses is possible. This is intended for cases in which a witness for some reason is prevented from appearing, or is not bound to appear before the Labour Court. 

On points of law, the court may raise questions concerning the submissions of the parties for the purpose of clarification or in order to point out the possibility or necessity of pleading in a certain way. As a court of first and last instance a distinct obligation rests with the Labour Court in this respect in order to prevent mistaken judgments and to adhere to the general legal principles that are applicable in this particular field of law. For these reasons, the Labour Court has very considerable scope to intervene in how the parties argue their case and it makes fairly frequent use of this privilege.

5.5. Lawyers and parties’ representatives

Lawyers may appear before the Labour Court. Representation by counsel is not compulsory, but the use of lawyers by the parties on both sides has been the prevailing practice ever since the early 1920s. The role of lawyers is definitely of importance in the preparation and presentation of the case. This means both with regards to its factual aspects, including the examination of the representatives of the parties and witnesses, as well as in submitting legal arguments.

There is, however, no particular bar exam or admission test for lawyers who wish to appear before the Labour Court. Any legally trained person who is qualified to act as a lawyer in the ordinary courts may also appear in the Labour Court.

Employee and employer representatives are also allowed to appear in the Labour Court. Generally, the plaintiff and the defendant are a trade union and a employers’ association being parties to the collective agreement in dispute. It is therefore common, and in practice it is expected, that each party will be represented, in addition to a lawyer. The representative of the party normally makes a statement and is subjected to cross-examination. One or two elected or employed officers concerned with the administration of the collective agreement in question also normally appear.

In cases involving individual employees or employers as defendants, the parties are summoned and allowed to appear in person, although they are mainly accompanied by their organisations. If represented by a lawyer their presence is not, however, required for purposes other than the giving of evidence. The same is true for officials of organisations when the parties are a trade union and an employers’ association.

5.6. As regards Enforcement and costs

Labour Court judgments are final and immediately enforceable in the same way as are Supreme Court judgements. There is no “contempt of court” remedy available.

In accordance with well established Labour Court case law, costs are generally not awarded in ordinary disputes concerning interpretation of collective agreements. However, in disputes on the lawfullness of an industrial action, the common practice is that costs are awarded against a “guilty” party. In cases regarding breach of collective agreement, the court sometimes awards case costs.

No court fees are charged for labour court cases. The basic legislative consideration being that court fees should be no argument or obstacle to resolve rights disputes peacefully and by adjudication.