New legislation, new adaptations The Hurdal Platform: Does less EEA

Employment

New legislation, new adaptations

Tarjei Thorkildsen, Tor Olav Carlsen and Maren Elvestad of BAHR’s Employment group are closely monitoring employment law developments in the wake of a new employment policy. Close dialogue and sound agreements with employees have never been more important for success.

- Collective agreements are mainstream commercial law, and not only a special interest discipline. Collective agreements should be a management focus, says Tarjei Thorkildsen, BAHR partner and Head of our Employment group.

On 3 June 2021, the Supreme Court delivered a judgment of significance for the implications of being bound by a collective agreement. Specifically, the case concerned the replacement of a collective agreement after switching to a new employers’ federation, but its significance extends beyond that. The Supreme Court concluded in this judgment that certain provisions of the collective agreement become part of each employee’s employment agreement and that these provisions will not lapse as a direct consequence of the collective agreement no longer being applicable to the employer. The judgment was called a collective agreement bombshell from the Supreme Court, and affects the entire transaction market and how the parties need to address employee rights. Both during and after the transaction.

- The case provides important guidance on how collective agreement obligations affect the transfer of undertakings. Collective agreements may also be of decisive importance in daily operations, says Thorkildsen, before adding:

- Collective agreements are important and form part of commercial law for the simple reason that they apply to many people, and in multiple ways. That is in the nature of these agreements. They are collective, and they tend to remain in place for a long time.

The BAHR lawyers believe that companies which bring collective agreements and union representative dialogue into the board room and senior management meetings have a greater chance of success.

- Few things are as destructive to a business as poor relations with union representatives. Those

Tor Olav Carlsen, Maren Elvestad and Tarjei Thorkildsen

that have good relations get things done. Trust and constructive dialogue take time to build, but can rapidly evaporate, says Carlsen, before adding:

Some union representatives consider themselves guard dogs, and are focused on finding faults and shortcomings in the company and its management. They have missed the point. Management and union representatives should work together, with the shared objective of ensuring a successful business. The union representatives shall of course stand up for the employees, and advance their views, but they shall do so in furtherance of the overarching objective of creating a better business.

Naive approach

BAHR keeps close tabs on employment policy developments and their implications for the regulatory frameworks facing employers and employees. A new Government will bring changes.

- Absolutely. But there will also be adaptations. We are already in the process of finding new adaptations in response to the changes we anticipate from new policies, says Thorkildsen.

- Restricting the scope for temporary employment or the right to use independent contractors will trigger adaptations. There is no way that a new Government and new policies will bring everyone into permanent employment. That is a naive approach. That would be battling windmills, with the windmills being the dynamic of the new economy and the new platform companies, observes Thorkildsen.

- Our thinking is: What will be the new incarnations of work and delivery under the new legislation? Reality has a way of coming up with the best solutions within the regulatory framework applicable at any given time, says Elvestad.

- This applies in all fields of law, including employment law. Our mission is to keep abreast of any changes, and to have the solutions ready whenever the need arises, concludes Thorkildsen