Norway: A New Supreme Court Judgement Regarding Working Hours (HR-2023-2068-A)
On 2 November, the Norwegian Supreme Court concluded that offshore workers’ so-called “available time” (time when the employee is available for the employer) pursuant to their CBA is not to be regarded as “working hours” in accordance with Chapter 10 of the Working Environment Act (“WEA”).
The term “available time” is used in the CBA between the Norwegian Oil and Gas Association and the oil service companies affiliated with the Association on the one side and the Norwegian Confederation of Trade Unions (LO)/Industri Energi and the local union concerned on the other side. In the CBA, the employees’ work schedule is divided by periods when the employee is available to work for the company (the available period) and periods when the employee is off (free period). During the available time, the employee can be called out to work at any time.
The case concerned an offshore worker who, for welfare reasons, had been granted reduced working hours in accordance with the regulations of the WEA. The employee claimed that the right to reduced working hours also entitled him to a corresponding reduction of scheduled available time pursuant to the CBA.
The question at hand was whether the employee’s available time was to be regarded as “working hours.” The Supreme Court referred to the definition of “working time” in Article 2(1) of the EU’s Working Time Directive and stated that the definition had to be interpreted in light of the directive’s purpose.
In its assessment, the Supreme Court highlighted that even situations where an employee is not required to remain at his or her workplace could be regarded as working hours according to Chapter 10 of the WEA. The Supreme Court referred to a case from the EU Court (C-266/14, Tyco) and stated that in order to be regarded as actual working hours, the employee must be placed in a situation where he or she is legally obliged to obey the instructions of his employer and carry out activity for that employer. The constraints imposed on the worker must affect, objectively and very significantly, the possibility to freely manage his or her own leisure time and to pursue his or her own interests. In this particular case, the employee was not subject to such restrictions. Therefore, the Supreme Court concluded that the employee’s available time did not fulfil the conditions for working hours pursuant to Article 2 (1) of the Working Time Directive and, thus, not pursuant to Section 10-1 of the WEA.
