Supreme Court reverses previous rulings in working time case

In March 2001, the Norwegian Supreme Court reversed the rulings of lower courts when it found that the working day begins when employees start working, and not when they enter the main gates of their employer's premises. The case related to a dispute at the Statoil petrochemicals firm.

In a significant court case concerning working time and attendance rules, the Norwegian Supreme Court (Høyesterett) ruled on 21 March 2001 that the working day begins when employees start working, and not when they enter the main gates of the company's premises. The case involved the Norwegian state-owned oil company, Statoil, and two groups of employees: daytime workers organised by the Norwegian Oil and Petrochemical Workers' Union (Norsk Olje- og Petrokjemisk Fagforbund, NOPEF), a member union of the Norwegian Confederation of Trade Unions (Landsorganisasjonen i Norge, LO); and shiftworkers represented by the Norwegian Petrotechnical Union (Norsk Petrolteknisk Forbund, PRIFOIL), a member union of the Confederation of Vocational Unions (Yrkesorganisasjonenes Sentralforbund, YS).

As the result of a reorganisation process in 1997, some workers at Statoil's plant at Kårstø in Norway saw their workplaces spread around different locations within the plant, with the implication that a significant number of workers had to travel up to 1.4 kilometres from the plant's main gates to their place of work. Furthermore, management started calculating working time from the point when the employees started their work rather than from the time when they entered the main gates of the plant, as had previously been the case. This led to a dispute between the workers affected by these changes and Statoil management. The employee side argued that the new attendance rules were discriminatory, because those workers whose place of work within the plant had been changed now experienced a longer working day as a result. These workers thus maintained that the working day should start at the company gates. Statoil claimed that since the issue of the employees' point of work was not based in any agreements or company guidelines, the changes that took place fell under the scope of the "principle of managerial prerogative" (styringsrett).

In two previous lower court rulings in the case, the judges found in favour of the employee side on the grounds that the restrictions placed on the affected employees at the plant were of such a nature that it would be wrong, according to the Act on Worker Protection and the Working Environment (AML), to define the time spent between entering the main gates and actual work execution as off-duty time. Furthermore, the lower courts argued that there was no tradition or practice in Norwegian working life supporting Statoil's new working time calculation, and that the changes made by management did not fall within the scope of the principle of managerial prerogative.

The Supreme Court, however, found that transport time and time spent from entering the main gates of the plant to arriving at place of work attendance do not constitute working time as such, because neither employment contracts nor agreements place any duties upon the workers during this time. The definition of working time in the AML is the "time when the employee is at the disposal of the employer", as opposed to off-duty or leisure time which is defined as "time when the employee is not at the disposal of the employer". Similarly, the Supreme Court also referred to Article 2 of EU Council Directive 93/104/EC on certain aspects of the organisation of working time, which defines working time as "any period during which the worker is working, at the employer's disposal and carrying out his activity or duties, in accordance with national laws and/or practice". Thus, the AML does not protect the workers in this case, because the workers concerned were not at the disposal of the employer between entering the plant and starting their work.

NOPEF stated that it was deeply disappointed with what it regards as an unfair and discriminatory ruling.