Norway: EFTA Court rules that employer is compliant with EU Working Time Directive

A recent hearing at the EFTA Court dealt with the question of whether Norwegian regulations on working time in child welfare units using cohabitation arrangements comply with the EU Working Time Directive.

The Court of Justice of the European Free Trade Association States (the EFTA Court) ruled in favour of the employer in a company case about alleged breaches of working time rules. The dispute in question concerned employees at the Solvold unit (Fossumkollektivet), a private enterprise that offers treatment for young people with drug and/or alcohol problems. The institution provides 'cohabitation' care whereby the therapists live together with their patients. Fossumkollektivet wished to introduce a 7-7 rotation as a new working time arrangement at Solvold: seven days' work followed by seven days off, with an average working time of approximately 84 hours per week. The former working time arrangement was a-3-7-4-7 rotation: three days’ work followed by seven days off, then four days’ work followed seven days off, totalling an average of 56 hours working time per week. The reason the employer wished to introduce the 7-7 rotation was due to economic losses sustained by the Solvold branch.

The employees objected to this change and were consequently dismissed, while at the same time offered re-engagement subject to the new working time of 84 hours a week on average. After Court proceedings, the Court in the first instance ruled in favour of the employer, a decision which was appealed to the Court of Appeal (Eidsivating Lagmannsrett). During these proceedings Eidsivating Lagmannrett asked the EFTA Court for an advisory opinion on the following questions:

1. Is an average weekly working time of 84 hours (7-7 rotation) in a cohabitation care arrangement in breach of Article 6 (see also Article 22(1)(a)) of the EU Working Time Directive (Directive 2003/88/EC)?

2. Is a national provision, under which an employee’s consent to working more than 60 hours per week in a cohabitation care arrangement cannot be revoked, compatible with the rights that employees have under Article 6 (also Article 22) of the Working Time Directive?

3.Is dismissal following a failure to consent to a working time arrangement of more than 48 hours over a seven-day period a sanction or ‘detriment’ within the meaning of Article 22(1)(a), see also (b), of the Working Time Directive?

The EFTA Court's judgment, given on 16 December, ruled in favour of the employer. An 84-hour work week in cohabitation care is thus legal, provided that employees consent and that their health and safety are ensured. It is up to the Norwegian court system to decide on the consequence of this advisory opinion, including whether  employees who have previously given their consent to a working time scheme can revoke it.   

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