Retirement age agreed for helicopter pilots ruled unlawful

A collective agreement for helicopter pilots establishing a retirement age of 60 has been rendered void by the Norwegian Supreme Court. In February 2012 the court ruled that because national law allows pilots to fly until the age of 65, the collective agreement’s lower retirement age was contrary to an EU Directive voluntarily adopted by Norway prohibiting age discrimination. The ruling is seen as a further example of EU regulation overriding national collective agreements.

Background

In February 2012 the Norwegian Supreme Court considered a case in which 10 helicopter pilots sought to continue working beyond the age of 60, despite a collective agreement obliging their company to retire its pilots at this age. The collective agreement also provided a pension scheme for retired employees which the pilots could access at 60.

The case began in 2007 when one of the pilots argued that the Work Environment Act (2.09Mb PDF), which regulates working environment, working hours and employment protection and prohibits age discrimination, made his enforced retirement at 60 illegal. The regulation was introduced in accordance with the EU Directive for equal treatment in employment and occupation (2000/78/EC).

The employer was initially in favour of allowing the pilots to continue, but the Norwegian Airline Pilots Association (Norsk Flygerforbund) and the Helikopter Services As Union argued that the collective agreement took precedence over the Act. The parties to the agreement later agreed that the interpretation made by the unions was correct, and when the case was brought before the court both the employer association and trade union provided legal aid to the helicopter company.

The City Court and Appeal Court upheld the employer’s view that the internal retirement age established by the company’s agreement took precedence over existing law. The Supreme Court, however, reversed this ruling and concluded that the employee could remain in spite of the collective agreement. The Government had said that the provisions of the Act did not have any effect on age limits already established in collective agreements but the Supreme Court did not find this statement binding.

ECJ ruling

In between the rulings of the Appeal Court and the Supreme Court, the European Court of Justice (ECJ) gave an advisory statement on a similar case, Prigge and others versus Lufthansa (C- 447/09), say that a collectively agreed retirement age of 60 for pilots, introduced in the aviation sector for safety reasons, is not in accordance with the EU directive dealing with age discrimination when the national legal framework allows for longer tenure. In Norway, the statutory age limit for pilots is 65, and the Norwegian Supreme Court felt the Prigge-case had direct relevance to the Norwegian case. The Court also said it was unable to find other grounds to justify making exemptions to the general prohibition against discrimination, and therefore ruled in favour of the pilots.

Commentary

The verdict is seen by many as another example of how EU law renders national collective agreements void. Norway was not obliged to integrate the current directive into the national legal framework but, since it has now voluntarily adopted the directive’s non-discrimination package, this may make it more difficult for trade unions to sustain any argument in favour of lower age limits for certain occupations than those set by the national legal framework.

The Norwegian Airline Pilots Association, however, said it was prepared for the Supreme Court ruling following the statement made by the EU court in connection with the Prigge-case in September 2011.

Kristin Alsos, Fafo