Important clarification of use of fellow-living rotation scheme
On March 21, 2022, the Labor Court passed a judgement (Norwegian only) about an Agreement applicable to a large number of private care companies that are members of NHO (The Confederation of Norwegian Enterprise). Agreement 453 determines that weekly working hours on average should not exceed 35,5 hours. Normally, the time limits in the wage agreement are binding for the employees and the enterprise so that it cannot be agreed better or poorer schemes in the company.
Many companies that are bound by the Agreement have nevertheless entered into local special agreements on so-called fellow-living rotation scheme with an average working time per week of up to 60 hours. In the judgment, the Labor Court states that this Agreement does not restrict the right to regulate the working hours for fellow-living rotation scheme personnel in local special agreements.
The fellow-living rotation scheme
A number of companies in the health and care sector have users who need to relate to the same caregiver over time. This is solved by the employees working several days in a row, followed by longer time off periods. Because the scheme presupposes that the employees work long working periods, such shifts cannot be carried out within the usual rules of the Working Environment Act.
Regulations on fellow-living rotation schemes etc. (Norwegian only) therefore makes exceptions from some of the normal working time rules in the law and extends the maximum limit for weekly working hours. However, both collective wage agreements and individual employment agreements can limit which schemes can actually be established.
More about the judgment from the Labor Court
The case before the Labor Court concerned Agreement 453 between NHO and LO (The Norwegian Confederation of Trade Unions)/Fagforbundet (Norwegian Union of Municipal and General Employees). The employee side stated that it was contrary to the collective agreement with a fellow-living rotation scheme where the weekly working hours exceed the collective wage agreement limit of 35.5 hours.
This would have had two key consequences: First, companies covered by the Agreement would have to change their rotation schemes because a 3-7-4-7 rotation would be contrary to the maximum limits for weekly working hours.
Secondly, the employee sides' argument would entail a claim for overtime pay back in time for employees who have been covered by a fellow-living rotation scheme with more than 35.5 hours of average weekly working time.
The Labor Court based its assessment on the fact that the Agreement that was the theme of the case, was made applicable to some private care companies in 2013. Many companies had already established fellow-living rotation scheme within the framework of the fellow-living rotation scheme regulations. This was not considered a problem when the companies were bound by collective wage agreement.
In the parties' practice, the Labor Court also found supported that the Agreement was not intended to limit the right to regulate the special working time scheme that the fellow-living rotation scheme regulations allow for in special agreements.
The employee side thus did not successfully achieve its demands for reorganization of rotation schemes and payment for overtime work.
The judgement is an important victory for the employer side - and ensures that NHO's member companies bound by Agreement No 453 can continue to use fellow-living rotation scheme by agreement with the employee representatives. However, the judgment contains important clarifications.
First, it is important to emphasize that the Labor Court states that the fellow-living rotation scheme regulations are not an independent basis for establishing a fellow-living rotation scheme one-sided by the company. The regulations go (of course) not in advance of the collective agreement.
Use of the regulations' extended working time framework for NHO's member companies presupposes an agreement between the parties. This is different for companies that are not bound by a collective wage agreement; they can arrange fellow-living rotation schemes in line with the framework in the regulations with the individual employee.
Secondly, the judgment does not have significance beyond the scope of the Agreement. The Labor Court has only interpreted Agreement 453. The Labor Court does not take a stand on whether fellow-living rotation scheme practiced in companies that are bound by other agreements are valid. It must be decided based on an interpretation of the individual agreement.
