An orderly working life is our best competitive advantage
We must clean up an illegal and inappropriate practice around particularly independent positions. This does not threaten Norwegian competitiveness, but contributes to an orderly and sustainable working life.
This opinion piece was printed in Dagens Næringsliv on Monday 19 October.
In an article in DN on 15 October, the lawyers Nerli-Røyneberg and Mo claim that the Supreme Court ruling on a particularly independent position is an example of a development that strengthens employee rights and weakens the competitiveness of Norwegian businesses. We at NITO were party counsel in the case and believe this is wrong. The judgment does not impose new obligations on employers, it clarifies current law and will contribute to orderly working conditions.
The key condition for exemption is that the employee has real control over his or her own working hours and workload. Flexible working hours and freedom in the performance of tasks are not sufficient.
The Supreme Court's decision cannot have come as a surprise on the employers' side. Over several decades, there have been clear signals that the exemption provisions are practised more widely than the law allows. At NITO, we process between 200 and 300 cases on this subject annually. The issue has also received considerable attention from both the Norwegian Labour Inspection Authority and the media.
The authors of the article give a somewhat striking description of the purpose of the working hours regulations when they write that the rules are intended to "protect employees from unfortunate strains that can lead to reduced ability to work". The ambition of the Act is not only for employees to remain fit for work. The working hours provisions are intended to protect the health and welfare of employees, and ensure a reasonable balance between work and leisure time.
It is important to be clear that the Supreme Court case is not primarily about the right to overtime pay, but the right to protection. The working hours rules set limits on the length and location of working hours. The overtime supplement is first and foremost a means of limiting the use of overtime. With the right staffing and good use of the flexibility in the regulations, it is entirely possible to keep the use of overtime down. The Act provides considerable scope for flexible solutions.
Orderly and justifiable working time arrangements are in the interests of employees, businesses and society. Predatory exploitation of workers, of which we unfortunately see many examples, can provide a short-term benefit, but the bill will come later. Employees who wear out, become ill or drop out of working life entail major costs for the individual, the enterprises and society.
The Supreme Court has now provided a general and clear clarification of where the limit for "particularly independent position" lies. The task going forward should therefore not be to look for new ways to stretch the boundaries, but to ensure that practice is brought into compliance with the law.
The authors of the article claim that improved labour rights weaken Norwegian competitiveness. It is worth recalling that the Norwegian model, which is characterised by orderly working conditions, is one of Norway's most important competitive advantages.
By Kirsten Rydne and Hege Glimsdal, lawyers in NITO's employment department.
