- Observatory: EurWORK
- Posted workers,
- Working conditions,
- Industrial relations,
- Published on: 07 Deireadh Fómhair 2010
Disclaimer: This information is made available as a service to the public but has not been edited by the European Foundation for the Improvement of Living and Working Conditions. The content is the responsibility of the authors.
The Norwegian government has in the last few years introduced several measures to combat social dumping. These measures are targeted on protecting foreign workers as such and have seldom only the posted worker in mind. Research indicates that there is often no strict distinction between posted workers and individual immigrants – posted workers have seldom worked for their employer in their home country.
1. Posted workers: basic facts
1.1 Please provide basic data on the workers posted in your country:
a) number (by gender);
Foreign subcontractors and their employees should register with the Central Office for Foreign Tax Affairs (SFU). In 2008 they reported 23 000 registered posted workers from Poland, the Baltic States, Romania and Bulgaria. The number of registered posted workers from Poland and the Baltic states has increased threefold since 2005. According to the SFU there has been, and probably still is a fair amount of underreporting to the registry. Even though part of this growth reflect increased reporting, there are indications that the increasing figures reflect a real growth (Dølvik, Jon Erik and Line Eldring 2008, Mobility of labour from new EU states to the Nordic region, Development trends and consequences, Nordic Council of Ministers 2008:537).
Source: Central Office for Foreign Tax Affairs
Note: Posted workers from Romania and Bulgaria were not registered until 2007.
There are no numbers as regards gender distribution.
b) distribution across sectors
Statistics Norway publishes statistics on the number of employees on short time stay in Norway (persons that intend to stay in Norway for less than 6 months). However, this statistics might include workers that are not posted to Norway, including persons hired by Norwegian companies. In the fourth quarter of 2007, 64,297 workers were on short time stay in Norway, a 16.2 % increase compared to the same period in 2006. 23,405 of these came from Eastern Europe, and this number has increased by 18,830 since the EU enlargement in 2004. 23.6% of the workers were employed in the construction sector, 18.9 % in temporary work agencies and 14.9 % in manufacturing industries.
A survey among Norwegian enterprises in 2006 showed that among companies in the construction and manufacturing sectors it was far more common to use labour from the east European Member States (EU-8) in the form of service purchases than in the form of direct hiring. These enterprises employ a relatively major proportion of the individual immigrants. 19 % of construction companies and 15 % of manufacturing companies in this survey had used labour from EU-8. (Dølvik, Jon Erik et al (2006): Grenseløst arbeidsliv?) A follow-up survey from 2009 showed that this share had increased to respectively 33 and 39 % as well as 32 % within hotel and restaurants (compared to 10 % in 2006).
1.2 Are there any information on the number (by gender) and distribution across sectors of workers posted to other countries by domestic companies? If yes, please provide details.
1.3 Are there any information on trade union affiliation and collective bargaining coverage of workers posted to your countries, including affiliation to foreign unions and coverage by foreign collective agreements, in addition and beyond the minimum requirements set by legislation? If yes, please provide details.
See 3.2 a).
A survey among Polish workers on seven petroleum installations onshore in 2007 showed that 26 % of all Polish workers were members of a Norwegian trade union. Of those hired by foreign companies, 16 % said to be unionized.
1.4 Are there any information on trade union affiliation and collective bargaining coverage of workers posted to other countries by domestic firms? If yes, please provide details.
1.5 Please refer the main content and results of major studies on posted workers (either in-coming or out-going), both quantitative and qualitative, which have been carried out in your country.
Jon Horgen Friberg and Guri Tyldum (red) 2007, Polonia i Oslo: Survey among Polish workers in Oslo. Main findings were that posted workers had significantly lower wages and worse working conditions than individual labour immigrants. Further that there existed a significant illegal labour marked among Polish workers in Oslo, and this was common among posted workers. They also find the distinction between posted workers and individual immigrants to be blurred. Only 15 % of the posted workers had worked for their employer in their home country (NO0704019I).
Dølvik, Jon Erik and Line Eldring 2008, Mobility of labour from the new EU states to the Nordic region: The challenges in the recipient countries have primarily been associated with the growth of service mobility and posting of workers, for which all countries have seen examples of unreasonable low-wage competition and circumvention of regulations with regard to taxes, HES, wage levels, working conditions etc.
Dølvik, Jon Erik et al (2006): Grenseløst arbeidsliv?: Findings related to posted workers and individual labour mobility. Use of foreign workers, the spread between permanent employment, hiring, outsourcing, motives for using foreign workers, the effect of general applicable collective agreements, consequences for the working environment.
2. Regulation on posted workers
2.1 Please provide details on the current legislative framework for posted workers in your country:
a) Reference to the law adopting the posted workers directive: number, date, and link to the text, if available, in English;
The directive is implemented into Norwegian law by the Act of 17 June 2005 No. 62 relating to working environment, working hours and employment protection, etc. (Working Environment Act, Arbeidsmiljøloven) section 1-7, and Regulations of 16 December 2005 No. 1566 concerning posted workers (Forskrift om utsendte arbeidstakere)..
b) A brief account of any amendments or integrations introduced after the initial adoption;
The regulations on posted workers that can be found in the Regulations of 16 December 2005 No. 1566 were originally part of the Working Environment Act. As a part of a major revision of the Act, the regulations concerning posted workers were moved from the act to the administrative regulations. However, this does not imply changes in the content of the regulations. Section 1-7 of the Working Environment Act puts down the definition of a posted worker, while the administrative regulations state which provisions that should apply to the posted worker.
c) A description of the current legal framework regarding posted workers, especially:
Employment conditions are enforced though law, see Regulations of 16 December 2005 No. 1566 § 2. If the employment relationship of a posted worker falls under the scope of a decision pursuant to the Act of 4 June 1993 No. 58 relating to general application of wage agreements, etc., (The General Application Act , Allmenngjøringsloven) the provisions that have been given general application and concern terms of wages and employment pursuant to the first subsection shall apply to the employment relationship. Even though this instrument is named “general application of wage agreements”, this is not regarded as erga omnes measure, but administrative regulations.
Application of law to the posted worker is limited to the provision listed by the see Regulations of 16 December 2005 No. 1566 § 2, and covers minimum terms identified in the directive, article 3.1. As there is no general legislative minimum wage in Norway, no such regulation apply to the posted worker unless provisions of a collective agreement are made general applicable. In such cases generally applicable provisions, for instance on working time, might be more favourable for the worker than the Working Environment Act.
If a collective agreement is made generally applicable in accordance with the General Applicable act, this means that some provisions of a national collective agreement are applied to all workers in Norway by an administrative provision. This have until now covered minimum wage regulations, regulations on working time, supplements for overtime work, travelling and board and lodging expenses etc.
d) whether the legal framework sets a maximum period for considering a worker a “posted worker” rather than a “resident worker”. If yes, please specify this maximum period.
e) whether there are special rules for certain sectors (for instance, construction). If yes, please specify the sectors and briefly illustrate such special rules.
Provisions in collective agreements are made generally applicable for the construction sector and the ship building sector.
2.2 Monitoring of implementation of regulation
a) whether a monitoring system for collected data and information on the number and employment conditions of posted workers was set up. If yes, please provide details on such system (bodies involved, structure, methods of collection and dissemination of information, etc.) and its effectiveness;
All employers are obliged to register the use of foreign subcontractors and their employees with the Central Office for Foreign Tax Affairs (SFU). However, there is probably a fair amount of underreporting to this registry.
There exists no monitoring system for employment conditions.
b) whether measures were introduced to make the information on the terms and conditions of employment generally available to foreign service providers and to the posted workers concerned.
The Labour Inspection Authority, the Police, the Tax Administration and the Directorate of Immigration have established a joint Service Centre for Foreign Workers in Norway. At the Service Centre, both employers and employees can obtain information, and initiate a fast-track handling of applications. Information can also be found on the web, www.sua.no. The Labour Inspectorate has also published information both on paper and on the web, and they have as a part of the government’s action plans ‘1’ and ‘2’ to fight social dumping, been given increased funds.
c) whether the law envisages the implementation of special labour inspections devoted to verify the number and employment conditions of posted workers. If yes, please provide details on how these are organised and on their effectiveness and outcomes.
The Norwegian Labour Inspectorate and the Petroleum Safety Authority Norway are responsible for monitoring wage and employment conditions for foreign workers in areas where provisions of collective agreements are made generally applicable.
2.3 Please specify if particular rules have been devised to deal with specific situations of posted workers:
a) the current rules for the posting of temporary agency workers in your country, especially whether the law requires the application to temporary agency workers of:
No special rules apply to posted temporary agency workers, but there exists some restrictions regarding temporary agency works in general. This is regulated by the Working Environment Act, section 14-12. According to this section a company may only hire temporary agency workers to the extent that temporary appointment of employees may be agreed, see section 14-9. However, this condition can be departed from with an agreement between the employer and elected representatives who collectively represent a majority of the employees in the category of workers to be hired. Further, employers may only hire from agencies that are listed in a public registry. To be listed in this register the agency has to fulfil certain conditions, e.g. that the agency is listed in some other public registers.
b) the current rules for employment conditions in public procurement, notably whether the law:
i) requires explicitly the application of specific terms and conditions of employment to be awarded public procurement contracts. If yes, please specify what kind of terms and conditions of employment must be applied (comprehensive terms or only minimum levels?).
Public procurement contracts that exceed the EEA threshold value (NOK 1.65 millions ex VAT) should include conditions regarding terms of wage and employment. Employees of the contractor and its subcontractors should not have wage and working conditions that are below conditions fixed in a national collective agreement, or what is common for the place and work in question.
iv) envisages specific clauses in the case of posted workers. If yes, please briefly illustrate the contents of such rules.
3. Positions and actions of the social partners and government on posted workers
3.1 Please indicate the positions and main initiatives that the social partners and the government have taken with reference to posted workers, either in-coming or out-going, and especially indicate:
a) the presence of a debate on the relevance and consequences for national labour law and industrial relations institutions of recourse to posted workers. If such debate is present, please refer its main contents and whether it refers to specific sectors.
The focus of the government in office and the trade unions has been to combat social dumping – both social dumping of individual and posted workers. ‘Social dumping’ is defined by the government as infringements of HSE regulations, including regulations on working time, lodging, and/or if foreign workers are offered wages and other conditions that are unacceptable low compared to the normal level of Norwegian workers, or that are not in line with regulations making collective agreements applicable. Several new measures have been introduced in accordance with the government’s action plan 1 and 2 against social dumping.( NO0705019I, NO0902039I) Trade unions have expressed that they welcome foreign workers, but that certain regulations are necessary to protect these workers from being exploited.
Employers’ organisations have also expressed the importance of having a well functioning labour market, see e.g. The Confederation of Norwegian Enterprise (Næringslivets Hovedorganisasjon, NHO) consultative statement to the proposal on joint liability, 05.03.2009 (in Norwegian). However, NHO and most of the other employers’ organisations have opposed to most of the government’s measures to combat social dumping. (NO0902039I, NO0705019I , NO0609039I ) In their opinion these measures do not target the companies’ causing problems, but adding administrative burdens to those companies that already are complying with the law. NHO also finds the government to be too eager to introduce new measures, before the effect of the existing measures have materialised. Further NHO has, on behalf of nine shipyards sued the Norwegian state reacting against the provision making parts of the Engineering Industry Agreement general applicable to the maritime construction.
In the opinion of The Federation of Commercial and Service Enterprises (HSH), the existing General Application Act should be replaced by a national minimum wage, founded on law (NO0709019I).
b) any positions expressed or actions taken in view of the recent rulings by the European Court of Justice (cases Laval un Partneri - C-341/05, Rüffert - C-346/06, Commission v Luxembourg – C-319-06).
The Norwegian General Application Act is of most partners seen as not being affected by the Laval, Rüffert and Luxembourg-rulings of the ECJ. However, trade unions are worried for the consequences of these rulings as regards the possibility to take collective action, the horizontal effect of article 49 EC, what in their view seems as a destruction of the public policy exception in the directive, article 3.10 (1), as well as employment conditions in public procurement. Trade unions representatives are also describing the ECJ as hostile to trade unions.
Norwegian United Federation of Trade Unions (Fellesforbundet), the largest trade union in the private sector and affiliated to LO, has taken an initiative to evaluate the existing General Application act, to see if this has to be reformed or replaced.
3.2. The main campaigns or initiatives undertaken by the social partners specifically aimed at posted workers or firms posting workers. If such campaigns or initiatives are present, please indicate their main features and whether they refer to specific sectors. Please cover, in particular:
a) Trade union initiatives with regard to:
Specific initiatives to recruit posted workers as trade union members
Line Eldring and Jens Arnholtz Hansen have in an article in Søkelys på arbeidsmarkedet 2009:1 Trade unions and labour immigration. Strategies and results in Norway and Denmark (Fagbevegelsen og arbeidsinnvandring. Strategier og resultater i Norge og Danmark) looked at initiatives to recruit foreign workers. See also Jon Horgen Friberg and Guri Tyldum (red) 2007, Polonia i Oslo, chapter 7.
The Norwegian United Federation of Trade Unions (Fellesforbundet) has been quite successful in recruiting foreign workers. In 2007 Fellesforbundet raised 15 million to initiatives to recruit labour immigrants, and this was followed-up in 2008. Departments of the trade union may apply for funds to local initiatives as translators, schooling, information leaflets and so on. Fellesforbundet has also hired a Polish speaking employee and organizes meetings for foreign workers at a specific time every week as well as keeping the office open in the evening for these workers. They have also hired two persons to work with Baltic construction workers. In the beginning recruitment happened through helping these workers solving their problems, and thereby turning a blind eye to the rule that a worker needs to be a member of the trade union before he receives any help. This proved to be successful.
In autumn 2008 around 40 % of the members of the affiliated Oslo Bygningsarbeiderforening (the Oslo branch of construction workers within Fellesforbundet) came from the new EU member states, most of them Polish. However, we do not know how many of them that can be said to be posted workers. Both local recruiting initiatives and the regulations making provisions in the collective agreement for the building industry generally applicable have been success criteria. Furthermore, the trade unions have focused on measures that should not lead to labour immigrants losing their jobs.
The Confederation of Trade Unions (Landsorganisasjonen i Norge, LO) has had close contact with the government in office, and has been quite successful arguing for new regulations to combat low wage competition. Both shop stewards right to check subcontractors’ wages and employment conditions, employers duty to inform and ensure that subcontractors comply with regulations on generally applicable collective agreements, joint liability, have been introduced following a LO initiative.
b) Employers initiatives
NHO service has asked the Labour Inspectorate to check upon the temporary work agency Job Norway as regards wages and working conditions.
NHO has published a check list for their companies as regards foreign workers.
The Federation of Norwegian Construction Industries (Byggenæringens Landsforening, BNL) did in 2002 take an initiative called 'Veracity in the construction sector' (Seriøsitet i byggenæringen). The purpose of this project is to bring together relevant actors within the industry and regulatory authorities in a joint effort to combat substandard employment and tax practices (NO0312103F). This project has developed to a forum for cooperation.
c) Any kinds of joint action undertaken by the social partners with regard to the issue of posted workers
4. Collective disputes and case law on posted workers
4.1 Please indicate whether collective disputes involving posted workers are frequent or increasing in recent times.
There have not been any collective disputes involving posted workers.
4.2. Please provide information on any major collective disputes which concerned the utilisation of posted workers in your country. Please include for each case:
4.3 Please provide information of existing case law in your country involving posted workers. Please include:
a) an indication of the frequency of cases involving posted workers;
We have no information of the frequency.
b) the main reasons leading to cases before courts;
Of the cases that have reached mass media, the main reasons leading to such cases seems to be breach of provisions in collective agreements made generally applicable with regard to minimum wage and overtime pay.
NHO has on behalf of nine shipyards sued the Norwegian state arguing that Regulations of 6 October 2008 concerning partial general application of the Engineering Industry Agreement to the maritime construction industry are invalid. Firstly because it is in conflict with the EEA agreement, secondly because the conditions in the Generally Applicable Act were not fulfilled, and thirdly breach of the rules of procedure.
c) the kinds of parties which more often refer such cases to the courts;
Posted workers, mostly from Eastern Europe.
d) the kinds of parties which are more often called before the courts in such cases;
Employers, mostly in the construction sector.
e) the emerging jurisprudence on issues regarding posted workers, that is a brief account of the contents and grounds of the principal court’s decisions.
No jurisprudence can be seen to have developed so far from these cases, as none of them have reached the Supreme Court so far.
Kristin Alsos, Fafo