Fee imposed on unorganised seafarers ruled unlawful

In December 2008, the Norwegian Supreme Court ruled as unlawful a fee imposed on non-unionised seafarers by a collective agreement; the deduction was considered to be in breach of the principle regarding freedom of association. The fee was meant to cover trade union expenses in connection with efforts to ensure that non-unionised workers received the level of pay to which they were entitled. However, the trade union concerned will now have to return the money.

Background

A regulation in the Norwegian collective agreement for seafarers, known as the Nordic Norwegian International Ship Register (NIS) Agreement, was put before the Supreme Court at the end of 2008. According to the collective agreement between the Norwegian Shipowners’ Association (Norges Rederiforbund) and the Norwegian Seafarers’ Union (Norsk Sjømannsforbund, NSF), the employers are obliged to deduct a fee (tariffavgift) from the wages of unorganised seafarers. The deduction is equal to the membership fee of the trade union and should be transferred to NSF as compensation for the union’s work to ensure that the collective agreement is negotiated and enforced. Payment of the fee does not make the non-unionised seafarers members of NSF; membership depends on active enrolment.

The lawfulness of the fee was questioned by three seafarers who were members of another trade union – the United Union of Seafarers (Fellesforbundet For Sjøfolk, FFFS). The terms laid down by the Nordic NIS Agreement meant that these seafarers had to pay both a membership fee to FSSS as well as a fee to NSF, and one of the workers claimed that paying the latter charge made her feel like she was forced into becoming a member of NSF. Although the plaintiffs lost their case in both the city court and the Court of Appeal, they succeeded in convincing a majority of the judges in the Supreme Court (see judgement (in Norwegian, 4Mb PDF)).

Supreme Court ruling

In its judgement, the Supreme Court made reference both to case law of the European Court of Human Rights on the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), as well as the practice of the European Committee of Social Rights (ECSR) regarding the interpretation of the European Social Charter. The latter is a Council of Europe treaty that guarantees social and economic human rights; it was adopted in 1961 and revised in 1996. Compliance with the treaty is monitored by ECSR.

The Supreme Court stated that freedom of association was protected by both the ECHR and the European Social Charter. Freedom of association is also considered to be a principle of Norwegian law. This principle protects the freedom to be a member of a trade union, as well as the freedom not to be unionised. The court ruled that fees imposed on non-unionised workers could in principle be considered lawful. However, to be lawful, the fee can only be used to ensure that the non-unionised workers are entitled to the wages and working conditions laid down by the collective agreement, and it must be possible to check that this is the case. If the fee is used to support other activities of the trade union, this may be regarded as a case of forcing non-unionised workers to finance the activities of a trade union of which they have chosen not to become members. This would not, according to the Supreme Court, be compatible with freedom of association. In addition, the Supreme Court ruled that the fee had to be proportional.

Commentary

The judgement by the Supreme Court develops the principle of freedom of association beyond what has previously been recognised by Norwegian law. Although the freedom not to be unionised has been recognised before, up until now it has never been considered to cover compulsory fees that are not connected to compulsory membership. The judgement can be said to deal with the balance between collective rights and individual rights, and in this case gives priority to the latter. Another point of interest is the Supreme Court’s eagerness to comply with the practice of ECSR. The practice of this committee has never before been seen to have a legally binding effect on Norwegian law.

Kristin Alsos, Fafo Institute for Applied Social Science