The Labour Court's judgment in the Grefsenhjemmet case
On 11 December, the Labour Court delivered its judgment in what we must assume is the final court decision in the "Grefsenhjemmet complex". The employee side prevailed in a unanimous judgement from the Labour Court. With this judgment, the Labour Court confirms that collectively agreed pay and working conditions have individual retroactive effect, and that any cancellation depends on a specific assessment of whether there is a conflict with the new collective agreement.
The Grefsenhjemmet complex consists of three judgements. The first judgment, Grefsenhjemmet I, came from the Labour Court and concerned whether the collective agreement provided special protection for the terms of the employment contract. In this case, the employer side won. This meant that the employer was not obliged under the collective agreement to maintain the terms of the employment contract unchanged.
In the second judgement, Grefsenhjemmet II, the Supreme Court addressed the question of whether the terms of the previous collective agreement had become part of the employment contract. The Supreme Court ruled that they had. During the hearing of the case in the Supreme Court, NHO and NSF agreed that the question of whether this potential term of the employment contract could remain in force under a new collective agreement should be decided by the Labour Court. It is this last question that the Labour Court has now decided.
In Grefsenhjemmet III, the Labour Court considered the question of whether the new collective agreement prevented the employment contract condition, which the Supreme Court had established had become part of the individual employment contract, from remaining in force under the new collective agreement.
NHO mainly argued two independent grounds for why the terms of the employment contract could not survive.
First, NHO argued that it is generally the case that previously collectively agreed terms and conditions lapse when a new collective agreement comes into force because the collective agreement constitutes an overall comprehensive regulation. Secondly, NHO argued that the employment contract term lapsed after a specific assessment of the conflict between the Care and Nursing Agreement, the new collective agreement, and the employment contract.
The Labour Court rejected both grounds for lapse, and the result was that the disputed employment contract condition (the so-called "stabilisation supplement") still constitutes part of the employees' salary conditions. This supplement was of such a special nature that the new collective agreement does not provide a basis for setting it aside, either specifically or generally.
Following the judgement, it is clear that individual retroactive effect applies both where the collective agreement lapses and where the collective agreement is replaced by a new collective agreement.
The judgement is of importance for the determination of the individual terms of employment where the employer changes employer association and a new collective agreement comes into force. The case is also relevant for the determination of the terms and conditions of employment for employees who have been transferred to a new organisation.
The terms and conditions that exist depend on a specific interpretation of the new and old regulations in accordance with general principles of interpretation in collective bargaining law.
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Tore Lerheim;
Merete Furesund;
Trond Erik Kvalsnes;
