New opening hours lead to dispute

New legal provisions regulating Sunday and evening trading in Norway came into effect on 1 January 1999. The Opening Hours Act is controversial, and there is a great debate raging on the issue of how to interpret some of the exclusions from the general ban on Sunday trading.

New legal provisions concerning opening hours in retail outlets came into effect on 1 January 1999. The Opening Hours Act (Loven om åpningstider), limiting Sunday and evening opening hours, aims to protect employees in the retail trade against inconvenient working time arrangements, and safeguard Sunday as a day of limited commercial activity. The first few weeks of 1999 have witnessed considerable controversy over the interpretation of the exclusions provided for in the Act.

The Opening Hours Act

The new Opening Hours Act, which originated in a proposal by the previous Labour government (NO9707116F), was approved by the Norwegian Parliament (Stortinget) in June 1998 (NO9804160N). The Act stipulates maximum opening hours for outlets in the retail trade, and is applicable to the whole country. According to the new provisions, shops may not be open after 21.00 during weekdays, and after 18.00 on Saturdays, and they have to be closed on Sundays. The provisions of the Act, however, are applicable only to outlets over a certain size, which includes shops with more than 100 square metres of floor space and petrol stations with over 150 square metres of floor space. Furthermore, the legislation means that the regulation of opening hours is no longer the responsibility of the individual municipalities. Until now, the municipalities had been free to regulate opening hours within the framework set by the previous Opening Hours Act, something which has led to different systems of regulation in the nation's 435 or so municipalities.

The changes made to the legal framework have also brought the retail trade under the provisions concerning ordinary working hours in the 1977 Worker Protection and Working Environment Act. The entire retail sector had previously been exempted from these provisions. As of 1999, only outlets that are excluded by special provisions in the Opening Hours Act are not covered by the working time provisions in the Worker Protection and Working Environment Act.

An important justification for adopting the new Opening Hours Act is to safeguard the right of employees to a sensible balance between working time and leisure time, and also a desire to limit the extent of Sunday trading. When the new provisions were proposed in 1997, trade union organisations had campaigned for a considerable time for the government to act to curb what was seen as an illegal growth in evening and Sunday trading. Another reason for introducing new nationwide provisions is to safeguard equal competition for enterprises in different municipalities.

The new regulations concerning opening hours are controversial, and the employers' organisation for the wholesale and retail trade sector, the Commercial Employers' Association (Handels- og Servicenæringens Hovedorganisasjon, HSH), has stated that the regulations are likely to affect competition between the traditional retail trade outlets and large kiosks, petrol stations and similar enterprises. These latter types of outlets are already acquiring a wider range of goods. There has also been speculation that the Act may contribute to the growth of smaller outlets, which satisfy the floor-space requirements for exclusion from the new rules.

Discussion on interpretation

The new Act immediately sparked extensive debate, especially in relation to the clauses excluding tourism and travel activity. An outlet in Trondheim, Norway's third largest city, was open as early as the first Sunday in January, which was justified by the fact that it was located in the vicinity of a bus station. Later several other outlets decided to open on Sundays, on the grounds of being near to a bus or railway station.

The uncertainty surrounding the exemptions to the Act has made the larger supermarket chains evaluate their own position vis-à-vis the new regulations. They are worried about being competitively disadvantaged, if some outlets are allowed to open on Sunday on grounds of being located close to traffic links. The Ministry of Children and Family Affairs, which is responsible for the Act, has so far rejected calls for any further discussion about altering the Act's legal text. The Ministry has stated in a press release that the exclusion which covers outlets located in the vicinity of traffic links includes only those outlets serving the needs of travellers, and that these provisions are not in fact new.

The controversy over possible loopholes in the legal framework led the Ministry to summon a meeting with the two sectoral employers' organisations - HSH and the Norwegian Cooperative Association (Norges Kooperative Landsforening, NKL) - and the Norwegian Union of Employees in Commerce and Offices (Handel og Kontor, HK), which organises employees in the wholesale and retail trade. At the meeting, the parties were invited by the Department to take part in a "contact group" to share experiences, and to debate and evaluate the possible effects of the new Act. In the aftermath of that meeting, HSH called upon its members in the retail sector not to challenge the government by violating the Act or by attempting to stretch ambiguous provisions beyond the intentions of the law. This is important, according to HSH, in order to prevent the Ministry from introducing even stricter provisions. HSH emphasises, however, that it will continue its work to have the new Act repealed in its present form.

On Sunday 17 January, HK reported several retail outlets which had opened in Oslo to the police. Representatives of the Oslo police force informed the media on the following day that outlets which violated the new Act could be liable to have to pay large fines.

Commentary

The Act on Opening Hours can be said to have emerged as a result of converging interests between those political parties wanting to protect employees against evening and Sunday work, and those parties wanting to see less commercial activity on Sundays. Future developments will show whether and how the new Act will limit opening hours, and the extent to which outlets that may keep open will do so. The Act has been met by much criticism both from politicians and by the media, and if it does not function according to its stated intentions, the political support for it may disappear.

In the first instance, it will be interesting to see how the Ministry and/or the controlling authorities will react in those cases where outlets choose to keep open in protest against the Act, or where the exclusion clauses are ambiguous. The Ministry of Children and Family Affairs has signalled that the exemption regarding traffic links could be removed from the law (reported in Dagens Næringsliv, 14 January 1999).

In the long term, it will also be interesting to see the extent to which the larger chains will adapt their activities to meet the competition stemming from outlets which are open on Sundays, perhaps by starting up outlets which satisfy the floor-space requirements in the Act. (Kristine Nergaard, FAFO Institute for Applied Social Science)