Definitive Report - Report No 368, June 2013

Case No 2943 (Norway) - Complaint date: 20-APR-12 - Closed

Allegations: The complainant organization alleges Government interference in collective bargaining

1. 700. The complaint is contained in a communication from the Confederation of Unions for Professionals (Unio) dated 20 April 2012. The Nordic Police Union (NPF), the Federation of Norwegian Professional Association (Akademikerne), the Confederation of Vocational Unions (YS) and the European Confederation of Police (EUROCOP) supported the complaint in communications of 25 April and 3, 7 and 24 May 2012, respectively.
2. 701. The Government forwarded its response to the allegations in a communication dated 14 November 2012.
3. 702. Norway has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), as well as the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants’ allegations

1. 703. In a communication dated 20 April 2012, the complainant organization Unio alleges that the Government violated ratified ILO Conventions when it unduly interfered in collective bargaining by imposing provisions to the Norwegian Working Environment Act with the intent to control the ongoing negotiations over working hours for the police service.
2. 704. The complainant indicates that, under the protection of Norwegian law and within the framework stipulated by the ILO Conventions, the Norwegian police force has full freedom of association, collective bargaining rights and the right to strike.
3. 705. According to the complainant organization, in the spring of 2009, as part of the ongoing renegotiations between Unio and the Ministry of Government Administration, Reform and Church Affairs (FAD) over a collective agreement on a set of working hours provisions for the police service, the Government passed the Regulation on Exemptions from the Working Hour Provisions of the Working Environment Act regarding Police Officers, etc., on 26 June 2009 (entry into force on 1 July 2009). The Regulation stipulates provisions on daily rest periods for certain groups of employees within the police service, including civilian staff. Such provisions were previously subject to collective bargaining and were outlined in the current collective agreement entitled Working Hours Provisions for the Police and Lensmann Service (ATB).
4. 706. The complainant organization further states that the regulation passed by the Government was mandatory, but could be altered through provisions in a collective agreement between the confederations and the Government. However, the Government’s actions affected the ongoing negotiations because the regulation in reality represented a more or less non negotiable demand in so far as the provisions of the regulation would apply if the parties failed to reach an agreement. Therefore, the negotiations partly became illusory and partly led the parties towards a predetermined outcome that favoured the employer’s position. The opportunity the trade union had to protect their members’ interest was thus weakened, partly because the negotiations were conducted under an obligation of industrial peace. Faced with this situation, the trade unions had no other option but to accept the main content of the Regulation. This was incorporated into a new and comprehensive working hours agreement that was reached by the confederations and the FAD (see minutes dated 9 July 2009).
5. 707. In the complainant’s view, the Government’s decision was in clear breach of the ILO Conventions. This is evident from the fact that the Government used its authority as a lawmaker to unduly intervene in the ongoing negotiations over working hours for the police service by regulating the provisions for rest periods – provisions that were already defined by the existing collective agreement. Even more crucially, the Government exercised this authority even though it was the employer of the police and thus party to the negotiations. This intervention transpired without the support of the Parliament and in the absence of any crisis in Norway that might have required such governmental action. By passing this Regulation, the Government thus interfered in the unions’ right to free negotiations and neglected its obligation to encourage free negotiations. Unless the Government abstains from such interventions, future negotiations will continue to be steered in the direction that the Government wants.
6. 708. The complainant indicates that Unio was founded in December 2001 as a politically independent confederation and is the second largest trade union confederation in Norway. It has highly qualified members, including teachers, nurses, researchers, police officers, clergy, physiotherapists, occupational therapists, consultants and deacons.
7. 709. The complainant organization further enumerates its ten affiliated unions with a total of 300,000 members: the Union of Education Norway (148,909 members, including teachers/pedagogues in kindergartens, primary schools, secondary schools, universities and colleges); the Norwegian Nurses Organisation (NNO) (89,992 members including registered nurses, midwives, specialist nurses, public health nurses and nursing students); the Norwegian Association of Researchers (NAR) (17,430 members including employees in academic, administrative and library-related positions at universities, colleges, research institutions, museums and in the public administration); the Norwegian Police Federation (12,534 members including employees from the police force, police force leadership and civilian staff); the Norwegian Physiotherapist Association (NPA) (9,238 members); the Norwegian Association of Occupational Therapists (NETF) (3,422 members); the Union of University and College Graduates (2,937 members including administrative personnel with a minimum of three years education from university or college); the Norwegian Association of Clergy (2,593 members including clergy and theologians); the Norwegian Association of Tax Auditors and Accountants (504 members); and the Norwegian Association of Deacons (485 members including deacons permanently employed in the Church of Norway and deacons engaged in the health and social work undertaken by the State and the Church).

The Norwegian negotiating system

1. 710. The complainant states that the principles of freedom of association, collective bargaining rights and the right to strike are acknowledged in Norwegian law. For employees in the state sector these principles are laid down in a general law concerning public sector negotiations, namely the Act relating to public service disputes of 18 July 1958. No distinction is made in this Act between various state sector employees. Thus, police service employees in Norway have unrestricted freedom of association and collective bargaining rights and the right to strike. The Police Act previously contained a clause forbidding strike action, but this clause was repealed by Royal Decree No. 8 of 3 February 1995.
2. 711. According to the complainant organization, police service unions and their members thus enjoy the same rights as all other public servants. They have been exercising their freedom of association and collective bargaining rights for more than 50 years and have had the right to strike since 1995. The collective bargaining rights of the employees in the police service, which are the subject of this complaint, have thus not been restricted, and the Government’s right to limit collective bargaining rights for the police under Article 5 of Convention No. 98 has never been used. The relevant ILO Conventions therefore apply in full.
3. 712. The complainant further indicates that, for Norwegian public servants, the national general collective agreement sets out basic provisions for pay and working conditions. There is a right to strike associated with the negotiations over the national collective agreements. However, the Act relating to public service disputes allows separate agreements to be reached on issues not covered by the national collective agreement. As a general rule, there is no right to strike associated with the negotiation of these separate agreements. Since the 1970s at least, provisions for working hours for the police have been laid down in separate collective agreements for various groups of public servants. Where the collective agreements do not regulate working hours, the provisions of the Norwegian Working Environment Act shall apply. This also means that when a collective agreement on working hours expires, the provisions of the Working Environment Act applies.

Background information on negotiations over police working hours

1. 713. The complainant underlines that, since the 1990s, a joint working hours agreement, namely the ATB, has been in place for all employee groups within the police service. The first joint ATB was entered into on 3 September 1999, and took effect on 1 November 1999. Since then, the agreement has been renegotiated at various intervals. The negotiations have been conducted under an obligation of industrial peace, which means that the laws and regulations do not permit industrial action to be taken in support of the demands made by the parties of the negotiation. The negotiating model and the specific negotiations have worked well and created scope for drawing up working hours provisions under free negotiations and with balanced considerations of the interests of both parties.
2. 714. According to the complainant organization, over time, the ATB has stipulated rules on employees’ professional rights concerning daily and weekly working hours, vacation, time off, rest periods, etc. as well as rules on how work should be organized. Since 1 June 2007, the ATB has included significant deviations from the provisions on rest periods that are stipulated by the Working Environment Act. The Norwegian Working Environment Act states that employees are, as a general rule, entitled to 11 hours of rest between two main shifts; however, by agreement with employee representatives in workplaces that are bound by a collective agreement, the amount of rest time may be reduced to eight hours. These general entitlements have been changed in the ATB and now allow rest periods to be shorter than both 11 and eight hours.
3. 715. The complainant also states that, in the state sector, only the confederations, and not the unions, may approve such significant deviations from the entitlements stated in the working hours chapter of the Working Environment Act (see section 10-12, paragraph 4; cf. section 25, No. 2, of the Act relating to public service disputes). Therefore, the ATB has been entered into by the public sector confederations.

Negotiations over police working hours 2008–09

1. 716. The complainant reiterates that a separate agreement concerning working hours provisions for the police was entered into in 2007. The agreement ran from 1 June 2007 until 31 December 2007, and was then to be extended for one year at a time unless it was terminated by the parties to the agreement. Section 5(5) of that agreement set out the main rule of 11 hours of rest between two work assignments. This corresponded to the main rule of the Working Environment Act, which is identical to the main rule stipulated by the Working Time Directive. However, in order to reduce the rest period to fewer than both 11 and eight hours, there were also rules on exemptions from the main rule. As previously mentioned, these exemptions represented significant deviations from the entitlements embedded in the Working Environment Act and were subsequently accepted by the confederations.
2. 717. The complainant organization also indicates that, after some negotiations, the agreement was extended several times. It was extended for the first time from 1 January 2008 to 30 June 2008. However, the agreement was renegotiated in the spring of 2008, since the unions found that the exemptions concerning short rest periods were being used rather frequently. During the negotiations they unsuccessfully attempted to reach an agreement on a more sensible and appropriate use of the exemptions. However, the parties managed to agree that the arrangement, with the exemptions, would be evaluated and reviewed. Thus, an evaluation of the exemptions was to be carried out before l January 2009. The ATB was then extended for the period 1 July 2008–31 December 2009, but in such a way that the exemptions concerning rest periods (i.e. section 5(5) of the agreement), would remain in force until 30 June 2009 (half a year before the ATB itself was due to expire).
3. 718. According to the complainant, the evaluation was carried out by a panel appointed by the parties in order to obtain a better basis for negotiating the exemptions. The evaluation revealed a number of breaches of the Working Environment Act and of ATB provisions in the service, in particular breaches of the rules on risk assessment, disproportionately long shifts, lack of compensating rest periods, especially short rest periods between two shifts, etc. The evaluation also found that, during the first half of 2008, there were nearly 24,000 exemptions from the main rule on 11 hours of rest over a 24-hour period. As this number shows, these exemptions were used extensively and implied a deterioration in working conditions as well as an increase in health, environmental, and safety risks for many employees in the service.
4. 719. Furthermore, the complainant organization states that the 2008 report “The police towards the year 2020” concluded that two police officers were required for every 1,000 citizens; but that police coverage at that time was just 1.8 per 1,000; that a significant number of additional police officers was thus required in order to fill those positions; and that police coverage would further deteriorate in the period 2012–13.
5. 720. According to the complainant, during the autumn of 2008 and the spring of 2009, there was widespread unrest and frustration in the police service because of the staffing situation and the working hours provisions, including the rest periods. Many people felt that the use of the working hours provisions had become irresponsible because low staffing levels led to the extensive use of overtime, long shifts and shorter rest periods between shifts. It became increasingly clear that there was no interest among the employees in continuing the exemptions from the Working Environment Act unless the exemptions could be organized to better safeguard the health and welfare of police officers. Indeed, a number of police officers declined to work overtime and asked to be exempted from certain duties. During the spring of 2009, both the confederations and the unions became involved in preventing any illegal action. The correspondence shows that no illegal action took place, nor has the Government accused the police employees of engaging in any illegal action.
6. 721. The complainant indicates that, on that basis, the Government signalled, on 26 January 2009, its intentions to pass a regulation equivalent to the existing agreed exemptions in the ATB, despite the problems that the exemptions had caused. The announcement came on the same day that the Government allocated additional funds to new, civilian positions in the police service, but without meeting the needs identified in the 2008 report. Norwegian confederations responded in unison to the announcement, considering that this was an intervention representing a breach of a long-standing negotiating tradition and an actual curtailment of the right to freely negotiate on working hours provisions. Every negotiating party on the employee side saw this action as a manoeuvre by which the Government, by exercising its authority, attempted to regulate traditional negotiating matters and influence the negotiations on these matters to the detriment of the unions and their members. With this regulation on their side, the employers were no longer compelled to engage in tough negotiations over regulations for rest period. This, of course, gave the Government full control over this particular aspect of the separate agreement, which was a central part of the negotiation. On 29 January 2009, a lawful political strike lasting one-and-a-half hours took place against the Government’s announcement of the Regulation.
7. 722. In the complainant’s view, the enactment of the Regulation was motivated by the particularities of the negotiating situation and by the Government’s desire to achieve a specific outcome. Additional evidence for this motivation can be seen in a hearing document dated 20 March 2009 from the Ministry of Labour, which states: “With background in the situation in the police service, the Government has made a decision to draw up a regulation concerning exemptions from certain provisions laid down in the working hours chapter of the Working Environment Act and that special rules be introduced in these areas.’’
8. 723. The Regulation primarily regulates exemptions from the Working Environment Act’s main rule on rest periods, so that sections 2 and 3 allow for daily off periods shorter than 11 and eight hours, respectively. Section 4 describes the right to compensating rest periods or other appropriate safeguards. It also contains rules on the number of off periods and standby duties.
9. 724. The complainant states that the Regulation was drawn up and passed simultaneously with the negotiations over a new ATB. It was passed on 26 June 2009 and came into force on 1 July 2009. The Regulation was quickly replaced by a new working hours agreement entered into by the confederations and the FAD (see minutes of 9 July 2009), with the rest period provisions largely corresponding with those contained in the Regulation. The ATB is valid from 1 October 2009 to 31 December 2012. With the acceptance of the ATB, the negotiations came to an end. However, the Regulation was never formally repealed, even though it became redundant when the ATB began regulating working hours in the police force.
10. 725. In the complainant’s view, the unions’ acceptance of the new ATB was primarily based on their inability to escape the material content of the Regulation during the negotiations. Because of the issuance by the Government of the Regulation, the power and influence over a key area of the negotiations were taken away from the trade unions. Their opportunity to protect the health and welfare of their members was weakened in an area that is of significant importance to health, environment and safety. In this respect, it is instructive to refer to the Norwegian Labour Inspection Authority that, in its hearing statement of 7 May 2009, declared: “In our opinion, the proposal described in section 2 goes too far in allowing for off periods shorter than 11 hours. Furthermore, the curtailed off period should be no longer than one night at a time. This is primarily because of the risk of accumulated tiredness occurring as early as in shift 2. Moreover, the Regulation should not allow for off periods shorter than eight hours in any 24-hour period, since, in our view, this would profoundly affect the employee’s opportunity to take safety precautions during the next shift because of lack of sleep.”
11. 726. The complainant concludes that, due to the Government’s actions, a shift was made away from standard practice in Norway, whereby the law stipulates general rules on working hours through the Working Environment Act but there is room for deviation from these rules including through collective agreements based on need and preferences from both sides. If no agreement was reached during negotiations, the general rules on working hours as stipulated by the Working Environment Act would be applied. For police service unions, the Government-imposed Regulation undermined this well-established practice. In the complainant’s view, the Government buttressed its position by being able to fall back on the Regulation for imposing highly stressful arrangements for working hours if no agreement was reached during the negotiations. The Regulation was passed by the Government as a way to improve its bargaining position so that it could dictate certain employment terms in relation to working hours. One effect of this was the absence of any time limitation in the term of validity of the Regulation. Moreover, the fact that the regulation was passed by the Government means that it was not heard by Parliament. In other words, it was passed without the approval of the very same democratic authority that had granted all Norwegian trade unions the freedom of association and collective bargaining rights.
12. 727. The complainant believes that, because of the Government’s intervention in collective bargaining rights, Norway is failing to meet its obligations under Conventions Nos 98 and 154, both of which have been ratified by Norway. As, according to the Government, the Working Time Directive does not generally apply to the activities of the police, the ILO Conventions relating to collective bargaining are the main instruments offering protection for the professional rights of employees and unions in the police service. When ratifying Convention No. 98, Norway has not adopted any exceptions. The unequivocal main rule under Article 2 of the Vienna Convention on the Law of Treaties (1969) is that any reservations against parts of the Convention must be formally stated in connection with the ratification of the Convention. The Government has made no such reservations and is thus, in the complainant’s view, according to international law and human rights method, bound by the current content of Convention No. 98 with the following core provision: “Measures appropriate to national conditions shall be taken where necessary, to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers’ organizations and workers’ organizations, with a view to the regulations of terms and conditions of employment by means of collective agreements” (Article 4).
13. 728. According to the complainant, this provision implies that the Government shall ensure that nobody, including the Government itself, imposes a solution on employees without negotiation or sets up a framework for negotiations imposing fixed specific outcomes. On the contrary, the Government shall ensure that negotiations take place based on the freedom of choice and the autonomy of trade unions. Therefore, the Government’s obligations have both a positive and a negative aspect: it should encourage negotiations and abstain from interfering in them. Article 4 of Convention No. 98 covers negotiations over “terms and conditions of employment”. Hence, collective negotiations over working hours, including daily and weekly rest periods, are clearly protected by the Convention.
14. 729. The complainant acknowledges, however, that, under international law, Norway is able to restrict the negotiating rights in the police service. This follows from Article 5(1) of Convention No. 98, and Article 1(2) of Convention No. 154, which provide: “The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations.” The wording implies, however, that unless such restrictions are actually imposed, the Convention’s provisions on the freedom of association and collective bargaining rights shall apply in full, even to the police. A faithful interpretation of the ILO Conventions and the Norwegian legality principle requires any restriction of the collective bargaining rights of the police to be clearly and unequivocally defined by law. Yet, such a limitation to the collective bargaining rights does not exist in Norwegian legislation. The complainant further underlines that the Regulation in question applies not only to police officers but also to civilian staff, i.e. “civilian employees holding the position of custody officers or chief custody officers”. Under Convention No. 98, these employees have unrestricted bargaining rights.
15. 730. The complainant organization also indicates that sections 1-2(3) and 10 through 12(9) of the Working Environment Act allow the Government to pass regulations concerning working hours arrangements, and some police overtime provisions have for a long time been regulated by regulations (see section 1-2(4) of the Working Environment Act and the Regulation Relating to Exemptions from the Working Environment Act for Certain Types of Work and Groups of Employees of 16 December 2005, No. 1567). The right to stipulate public regulations on working hours does, however, not represent a right to limit the scope and content of the negotiations. If it did, it would have been explicit or implicit in the wording or in the preliminary documents, which is not the case. Moreover, the provisions of that regulation are general and apply also to groups other than the police, i.e. groups of employees whose collective bargaining rights may not be restricted by the Government under any circumstance.
16. 731. The complainant therefore believes that provisions of such regulations may not in any circumstance be applied in such a way that they directly intervene in negotiations, when the relevant collective bargaining rights have not been expressly curtailed in national legislation and when the negotiations have traditionally been free. If Convention No. 98, Article 5(1), and Convention No. 154, Article 1(2), are interpreted in such a way as to allow groups that are not exempt from the scope of the Convention to be exempted through the Government’s exercise of authority during the negotiations, then the Conventions are not at all suited to offer real protection to the professions mentioned in Article 5. This would clearly contradict the wording and purpose of the Conventions.
17. 732. According to Convention No. 98, Article 4, and Convention No. 154, Article 1, Norway has an obligation to ensure free negotiations and to ban interventions in the negotiations that may limit the collective bargaining rights. It also has a duty to promote collective bargaining and to make provisions that allow free negotiations to take place. Based on the protection offered by these Conventions, the fear of the authorities and their dissatisfaction with the outcome do not constitute legally valid reasons for halting negotiations and exercising governmental authority to manage the outcome. If the Norwegian authorities believe there has been a breach of industrial peace or that other unlawful acts have been earned out by the employee organizations, it should respond to this with ordinary legal sanctions, not by limiting the collective bargaining rights.
18. 733. In conclusion, the complainant requests that the regulation be repealed so as to avoid the same situation from arising once again when the current collective agreement expires.

B. The Government’s reply

1. 734. In a communication dated 14 November 2012, the Government recalls that ILO Convention No. 98 concerning the application of the principles of the right to organize and to bargain collectively, was ratified by Norway in 1955 and entered into force in 1956. Pursuant to its Article 5(1), the extent to which the guarantees provided for in the Convention shall apply to the armed forces and the police, shall be determined by national laws or regulations.
2. 735. The Government further recalls that ILO Convention No. 154 concerning the promotion of collective bargaining was ratified by Norway in 1982. The scope of this Convention is determined in its Article 1(2), which provides that the extent to which the guarantees provided for in the convention apply to the armed forces and the police, may be determined by national law, regulations or national practice.
3. 736. The Government states that there are long-standing traditions in Norway regarding collective bargaining and collective agreements, across the labour market. The right to organize and collective bargaining are fundamental parts of Norwegian justice, and are supported by legislation with procedural rules and institutions for resolving disputes. The right to industrial action is part of the right to free collective bargaining in Norway. No prohibition against strike or lockout exists, except for the military forces and senior civil servants/officials. These groups nevertheless enjoy the right to organize and the right to collective bargaining. Collective bargaining and collective agreements are considered by the authorities to be a fundamental prerequisite for the well-functioning of the Norwegian model of tripartite cooperation.

Provisions of the Working Environment Act related to working-time arrangements

1. 737. The Government indicates that the Working Environment Act (Chapter 10) constitutes the main framework for working-time arrangements, from which enterprises (both public and private) may deviate under certain conditions by collective agreements or by exemptions granted by the supervisory authority (cf. section 10-12). This paves the way for solutions adapted to conditions in the individual enterprise, business sector or trade.
2. 738. Agreements on the most wide-ranging working-time arrangements must be entered into by a union of considerable size (stipulated by the law), and in the state sector this will usually be confederations of unions, cf. section 10-12(4). The purpose of this condition is to ensure that workers’ health, welfare and more long-term interests are taken into account.
3. 739. Section 10-12(9) of Chapter 10 of the Act additionally provides the Ministry of Labour with the legal basis for exempting special types of work from the provisions of the chapter and for adopting special regulations regarding framework provisions of working time. There is also a provision in the Act, which gives a legal basis for a general (partial or complete) exemption from the Act for parts of the public administration (section 1-2(4)).

“Working Hours Provisions for the Police and Lensmann Service” agreement

1. 740. The Government states that there is a long-standing tradition of entering into special collective agreements regarding wages and working conditions of the police service. A joint special agreement for all police officers, the “Working Hours Provisions for the Police and Lensmann Service” (ATB), was entered into in 1999. The ATB covered all civil servants with police authority, except senior officers under a special pay structure, and custody officers, and had its legal basis in section 10-12(4) of the Working Environment Act. The agreement made several exemptions from the provisions regarding normal working time and rest periods, and was in general valid until 31 December 2009 and further for a year at a time, if not given notice by one of the parties. However, the provisions regarding rest periods had a clause that said that these provisions would be repealed by 1 July 2009.
2. 741. According to the Government, when disputes in negotiations regarding such special agreements occur, industrial actions cannot take place. In the state sector, usually the State Wage Committee or a separate committee may handle the disputes. However, disputes regarding working-time provisions cannot be resolved by these mechanisms. If the parties do not agree, the general framework of the Act will apply.
3. 742. The Government adds that the new ATB, that entered into force on 1 October 2009, has a broader scope than the previous one, as it covers in addition border inspectors, civil servants within the prosecuting authority, special investigators, transport escorts and certain undercover agents. It is a quite extensive agreement that consists of 17 sections concerning a wide range of conditions related to working hours and overtime work. The provisions regarding rest periods are contained in section 5(5), with the formal basis section 10-12(4) of the Act.

Regulation on Exemptions from the Working Hour Provisions of the Working Environment Act regarding Police Officers, etc.

1. 743. The Government indicates that, on 20 March 2009, the Ministry of Labour sent out a draft Regulation concerning rest periods for police officers for public hearing. The deadline for the hearing was 8 May 2009. The expiry date of the working hour provisions in the ATB was end of June 2009, and the Ministry aimed at an entry into force of the Regulation on 1 July 2009. By choosing this date, the aim was to avoid the Regulation to intervene with the valid and running ATB. The title of the Regulation was “Regulation on Exemptions from the Working Hour Provisions of the Working Environment Act regarding Police Officers, etc.” It was adopted on 26 June and came into force on 1 July 2009.
2. 744. The Regulation gives, under certain conditions, permission for shorter rest periods than 11 hours, and in certain limited cases for rest periods shorter than eight hours, in connection with overtime work. In addition, there are provisions regarding compensating rest periods or other appropriate protection, the number of shortened rest periods that are permitted in a row, etc.
3. 745. The Government asserts that Norway has not violated Conventions Nos 98 and 154 by adopting the Regulation in question and sets out the following arguments:
   • – The relevant Conventions are applicable to the police service. The Government agrees that there are no general legal exceptions for the police in the national law regarding collective bargaining. However, this does not imply that the freedom of collective bargaining can be interpreted as absolute. The organizations must conduct their freedom within the prevailing frames of national legislation. This principle is explicitly expressed in Article 8(1) of Convention No. 87.
   • – The freedom to enter into collective agreements still exists. The Working Environment Act constitutes a framework that stipulates how extensive a working-time arrangements can possibly be, and determines the options for possible deviations from this framework through collective agreements or exceptions granted by the authorities. Regulations concerning working time would normally replace the provisions of the law. The Act, or regulations authorized by this Act, do not govern the individual duty to work, which arises from individual or collective agreements. According to section 1-9 of the Act, the law will not constitute a hindrance for agreements offering to employees better working conditions than those stipulated in the law. Although the Regulation may affect the bargaining position of the employee side, the freedom to negotiate and enter into collective agreements regarding working-time arrangements still exists according to the law. This is clearly illustrated by the fact that the parties carried out negotiations in the summer 2009 and entered into a new collective agreement regarding, inter alia, rest periods. This agreement is still valid, and consequently, the Regulation has not been used so far. In addition, the part of the ATB comprising provisions regarding rest periods constitutes only a minor part of the agreement (one out of 17 sections).
   • – The right to use valid authority in law to adopt new regulations. Furthermore, it is the opinion of the Government that there has to be a clear and strong legal basis, indeed, to claim that the Government has forever renounced its right to use a valid authority in law to adopt new regulations, when entering into collective agreements on a given matter. There is no such basis in this case. On the contrary, the Regulation regarding rest periods must be assessed on the background of the particular role of the police in a society.

Legal basis of the Regulation

1. 746. The 2009 Regulation regarding rest periods in the police service has its legal basis in two provisions of the Working Environment Act. According to section 1-2(4), the King may, by regulation, provide that parts of the public administration shall wholly or partly be excepted from the Act when the activity is of such a special nature that it is difficult to adapt it to the provisions of the Act. This provision gives the legal basis for adopting exceptions from all of the provisions in the Act. Section 10-12(9) provides that, if the work is of such a special nature that it would be difficult to adapt it to the provisions of this chapter, the Ministry may, by regulation, issue special rules providing exceptions from these provisions. This second provision allows for the adoption of exceptions and special rules other than those of Chapter 10 of the Act.
2. 747. The Government emphasizes that the gist of both sections is that the work has to be of such a special nature that it is difficult to adapt the work to the provisions of Chapter 10. Already in 1977, a regulation was adopted regarding adjustments for parts of public administration, including police officers which, inter alia, concerned the right as regards the police to deviate from the provisions setting frames for overtime work. This provision still exists in a new regulation adopted on 16 December 2005 (No. 1567). Hence, the police services have, for a long time, been regarded to be of such special nature that it qualifies for exceptions regarding the provisions of working time.
3. 748. Moreover, the Government considers that section 10-12(9) (“difficult to adapt”) may be interpreted somewhat wider than the corresponding provision in the previous 1977 Act, which provided that it had to be impossible to adapt the work to the provisions of working time.
4. 749. According to the Government, the role and duty of the Norwegian police appear from the Police Act and the Police Order (Politiinstruksen). Accordingly, the main tasks of the police are to maintain public order and security and to prevent crime and other violence. The police is entitled to and is obliged to intervene, if necessary by force, to maintain public law and order, pursue legal offences or to bring legal decisions into effect or to be respected. No other agency or public officers have comparable tasks and authority as the police in times of peace. This underlines the exceptional position of the police in society to ensure life, health and property.
5. 750. The Government also states that the tasks of the police are to a large extent directed by the incidents that occur. When large incidents and accidents occur or in the initial phase of large criminal cases, it will not always be possible to plan for sufficient personnel so that the requirement for at least 11 hours (and in certain limited cases eight hours) rest period can be complied with.
6. 751. Looking at the tasks and the special character of the police, the Government concludes that it is not possible to carry out parts of the duties solely based on the provisions regarding rest periods in the Act. The need for exceptions relates both to the provisions regarding overtime work and to the provisions regarding rest periods (section 10-8 of the Act). As mentioned above, the exceptions from overtime provisions have been granted for many years by a special regulation which is still in force. The need for this regulation has not been challenged by the employee’s organizations. It is the firm opinion of the Government, that the regulation regarding rest periods of the police service is sufficiently reasoned, considering the legal basis in the Act.

Situation in June 2009

1. 752. In June 2009, the Government was facing a very difficult situation. The negotiations between the complainant and the FAD had come to a point where a realistic result was that negotiations regarding a new ATB could fail. It was very clear that the police would not be able to fulfil all their tasks according to the Police Act, if the Chapter 10 of the WEA solely would constitute the legal framework for the rest periods of the working-time arrangements in the police service. Due to the risk of the situation that the police service stood ahead of a possible violation of the Police Act, the Regulation was adopted on 26 June. However, it was not put into force until the prevailing ATB agreement expired at the end of June. Further, the Regulation to a very large extent continued the provisions of the ATB regarding rest periods, i.e. an arrangement that for years had been accepted among the affected employees. It is the opinion of the Government that this did not represent an infringement of Conventions Nos 98 or 154.
2. 753. The fact that the parties reached an agreement on a revised ATB in 2009 does not change this. The Government holds that the need of society for predictability and the need for the police for continuity require a regulation in force, should the negotiations fail in the future. If paramount and evident reasons call for another framework for the working-time arrangements within the police than those pursuant to Chapter 10 of the Act, such framework regarding the critical needs must be settled by a regulation rather than be left to negotiations and agreements between the employers’ and workers’ organizations, and the relative strength between these parties.
3. 754. In conclusion, the Government states that, in its opinion, the adoption of the Regulation on Exemptions from the Working Hour Provisions of the Working Environment Act regarding Police Officers, etc. cannot be considered as a breach of Conventions Nos 98 or 154.

C. The Committee’s conclusions

1. 755. The Committee notes that in the present case the complainant organization alleges Government interference in collective bargaining in the police service.
2. 756. The Committee notes that the complainant indicates that:
   • (i) As no distinction is made in the Act relating to public service disputes of 18 July 1958 between police service employees and other public servants, the Norwegian police force enjoys full freedom of association and collective bargaining rights, and enjoys the right to strike since 1995 under the Police Act as amended by Royal Decree No. 8 of 3 February 1995.
   • (ii) As regards working hours for the police, since the 1970s, provisions on this matter have been laid down in separate collective agreements for various groups of public servants, bearing in mind that where the collective agreement expires or does not regulate working hours, the provisions of the Working Environment Act shall apply (see section 10-8: at least 11 hours of rest per 24 hours; exceptionally the amount of rest time may be reduced to eight hours by collective agreement).
   • (iii) Since 1999, a joint working hours agreement, namely the ATB, has been in place for all employee groups within the police service and has been renegotiated at various intervals.
   • (iv) Since 1 June 2007, the ATB included significant deviations from the provisions on rest periods stipulated by the Act (rest periods shorter than eight hours per 24-hour period) and was extended for the first time from 1 January 2008 to 30 June 2008.
   • (v) When the agreement was renegotiated, the unions criticized that the exemptions concerning short rest periods (i.e. section 5(5) of the agreement) were being used rather frequently, and the parties agreed to evaluate and review the exemptions before l January 2009, and to extend the ATB for the period 1 July 2008–31 December 2009 on the understanding that the exemptions would only remain in force until 30 June 2009.
   • (vi) The evaluation revealed a number of breaches of the Act and the ATB and found that the exemptions were used extensively and implied a deterioration in working conditions.
   • (vii) During autumn 2008 and spring 2009, there was widespread unrest and frustration in the police service because of insufficient staffing and irresponsible use of the working time exemptions provisions, but the unions succeeded in preventing illegal action.
   • (viii) The Government signalled, on 26 January 2009, its intentions to pass a regulation equivalent to the existing agreed exemptions in the ATB.
   • (ix) On 29 January 2009, a lawful political strike lasting one-and-a-half hours took place against the announced regulation.
   • (x) During the ongoing renegotiations between the complainant and the FAD of a collective agreement on working hours for the police service, the Government passed the Regulation on Exemptions from the Working Hour Provisions of the Working Environment Act regarding Police Officers, etc. on 26 June 2009 (entry into force on 1 July 2009).
   • (xi) The Regulation stipulates provisions on rest periods for employees in the police service (including civilian staff) allowing for exemptions shorter than eight hours, which were previously subject to collective bargaining and already outlined in the existing collective agreement entitled ATB.
   • (xii) The Regulation could, in theory, be altered through provisions in a collective agreement but in practice affected the ongoing negotiations because it represented a more or less non-negotiable demand that would apply if the parties failed to reach an agreement.
   • (xiii) Thus, due to the weakened position of the trade union and the obligation of industrial peace in the framework of negotiation of separate agreements concerning issues not covered by the national collective agreement, the negotiations became illusory and led the parties towards a predetermined outcome that favoured the employer’s position.
   • (xiv) Faced with this situation, the trade unions had to accept the main content of the Regulation, which was incorporated into a new and comprehensive working hours agreement that was reached by the confederations and the FAD and is valid from 1 October 2009 to 31 December 2012.
   • (xv) According to the complainant, the Government, and at the same time employer of the police and party to the negotiations, unduly interfered in collective bargaining by using its authority as a lawmaker to issue a regulation under the Working Environment Act with the intent to control the ongoing negotiations over working hours for the police service, thus violating Conventions Nos 98 and 154.
   • (xvi) In its view, these Conventions fully apply to police since when ratifying these instruments Norway has not adopted any exceptions in respect of collective bargaining rights of police, and there is no restriction of the collective bargaining rights of the police clearly and unequivocally determined by law.
   • (xvii) Also, the issued Regulation applies not only to police officers but also to civilian staff.
   • (xviii) If the Norwegian authorities believe there has been a breach of industrial peace, it should respond by imposing sanctions, not by limiting collective bargaining rights.
   • (xix) Lastly, the complainant requests the repeal of the Regulation so as to avoid the same situation from arising once again when the current collective agreement expires.
3. 757. The Committee notes that the Government states that:
   • (i) The right to organize and collective bargaining are fundamental parts of Norwegian justice, and are supported by legislation with procedures for resolving disputes.
   • (ii) The Working Environment Act (Chapter 10) constitutes the main framework for working-time arrangements, from which enterprises (public and private) may deviate under certain conditions by collective agreements or exemptions granted by the supervisory authority.
   • (iii) There is a long-standing tradition of entering into special collective agreements regarding wages and working conditions of the police service; but when disputes occur in negotiations of such agreements, industrial action cannot take place.
   • (iv) The relevant ATB made several exemptions from the provisions regarding normal working time and rest periods, and was in general valid until 31 December 2009 and further, if not given notice by one of the parties; however, the provisions regarding rest periods contained a clause stating that they would be repealed by 1 July 2009.
   • (v) On 20 March 2009, the Ministry of Labour sent out a draft Regulation concerning rest periods for police officers for public hearing. The Government was facing the situation that the negotiations regarding a new ATB between the parties had come to a point where a failure was probable. Due to the risk that the police would not be able to fulfil their tasks in the legal framework provided by the Act, the Regulation was adopted on 26 June and came into force on 1 July 2009 following the expiry of these provisions in the ATB.
   • (vi) The Regulation allows, under certain conditions, for shorter rest periods than 11 hours, and in certain limited cases for rest periods shorter than eight hours, in connection with overtime work. It continued to a very large extent the ATB provisions regarding rest periods, i.e. an arrangement that had been accepted for years among the employees.
   • (vii) Norway has not violated Conventions Nos 98 and 154. The relevant Conventions are applicable to the police service, but, while there are no general legal exceptions for the police in the national law regarding collective bargaining, this does not imply that the freedom of collective bargaining can be interpreted as absolute. The organizations must conduct their freedom within the prevailing frames of national legislation. This principle is explicitly expressed in Article 8(1) of Convention No. 87.
   • (viii) It cannot be claimed that the Government has forever renounced its right to use a valid legal basis in law to adopt new regulations, when entering into collective agreements on a given matter. The Regulation has its legal basis in two provisions of the Working Environment Act. According to section 1-2(4), the King may, by regulation, provide that parts of the public administration shall wholly or partly be excepted from the Act when the activity is of such a special nature that it is difficult to adapt it to the provisions of the Act. Section 10-12(9) provides that, if the work is of such a special nature that it would be difficult to adapt it to the provisions of Chapter 10, the Ministry may, by regulation, issue special rules providing exceptions from these provisions.
   • (ix) The Government emphasizes that the gist of both sections is that the work has to be of such a special nature that it is difficult to adapt the work to the relevant provisions. In view of the exceptional position of the police in society to ensure life, health and property and the fact that its tasks are to a large extent directed by the incidents that occur, it is not always possible to comply with the rest period requirements of at least 11 hours (and in certain limited cases eight hours). The need for exceptions relates both to the provisions regarding overtime work and to the provisions regarding rest periods. The exceptions from overtime provisions have been granted by special regulation since 1977.
   • (x) The Working Environment Act constitutes a framework that stipulates working-time arrangements and provides options for possible deviations through collective agreements or exceptions granted by the authorities. Regulations issued under the Act normally replace the provisions of the Act. Although the 2009 Regulation may affect the bargaining position of the employee side, the freedom to negotiate and enter into collective agreements regarding working-time arrangements still exists.
   • (xi) This is clearly illustrated by the fact that the parties carried out negotiations in the summer 2009 and entered into a new ATB that entered into force on 1 October 2009. The part of the ATB comprising provisions regarding rest periods constitutes only a minor part of the agreement (one out of 17 sections).
   • (xii) The ATB is still valid, and consequently, the Regulation has not been used so far. However, the need of society for predictability and the need for the police for continuity require a regulation in force, should the negotiations fail in the future. If paramount and evident reasons call for another framework for the working-time arrangements within the police than those pursuant to Chapter 10 of the Act, such framework regarding the critical needs must be settled by a regulation.
4. 758. Bearing in mind that the case concerns alleged interference in collective bargaining negotiations in the police service, the Committee notes that Norway has ratified Conventions Nos 98, 151 and 154. With respect to the application of these instruments to the police force, Conventions Nos 98 and 151 contain a provision which reads as follows: “The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations” (Article 5(1) of Convention No. 98; Article 1(3) of Convention No. 151). Convention No. 154 contains a similar provision stipulating that: “The extent to which the guarantees provided for in this Convention apply to the armed forces and the police may be determined by national laws or regulations or national practice” (Article 1(2) of Convention No. 154). The Committee has previously considered that it is clear that the International Labour Conference intended to leave it to each State to decide on the extent to which it was desirable to grant members of the armed forces and of the police the rights covered by Convention No. 87. The Committee holds that the same considerations apply to Conventions Nos 98, 151 and 154.
5. 759. Nevertheless, the Committee notes with interest that several member States have recognized the right to organize and bargain collectively of the police and the armed forces in accordance with freedom of association principles. In particular, the Committee notes that in Norway, the police has enjoyed freedom of association and collective bargaining rights for more than 50 years and has had the right to strike for more than 15 years. It also observes that both the complainant and the Government agree: (i) that the relevant Conventions are applicable to the police service and there are no general legal exceptions for the police in the national law regarding collective bargaining; and (ii) that there is a long-standing tradition of entering into special collective agreements regarding working conditions of the police service including working time.
6. 760. In light of the above, and to the extent determined by national law, regulations and practice in Norway (Article 5(1) of Convention No. 98; Article 1(3) of Convention No. 151; and Article 1(2) of Convention No. 154), the Committee concurs with the Government’s view that the fundamental principles underpinning those Conventions should be respected for all categories of workers covered by the Regulation. The Committee observes that the complainants’ allegations would appear to particularly point to the problem that arises when the separation between the Government’s role as legislator and as employer is not sufficiently clear. The Committee invites the Government, within the framework of the existing national legislation, to conduct good-faith collective bargaining negotiations in the police service with a view to reaching agreement regarding working conditions, including working time.

The Committee’s recommendation

1. 761. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee invites the Government, within the framework of the existing national legislation, to conduct good-faith collective bargaining negotiations in the police service with a view to reaching agreement regarding working conditions, including working time.