Judgment from the Labour Court on calculation of seniority

Judgment from the Labour Court on calculation of seniority

The Labour Court recently handed down a judgment that provides key guidelines for how seniority should be calculated upon temporary lay-off. The parties to the case were the Norwegian Air Traffic Controllers' Association on the one hand, and Spekter and Avinor Flysikring on the other. The main question in the case was how seniority was to be understood in connection with selection in a temporary layoff process - as total service time or continuous service time. The question has not previously been dealt with either in the Supreme Court case law or in practice from the Labour Court, and the judgment thus provides an important clarification of the calculation question.

Selection in the event of temporary lay-off is regulated in the Main Agreement between the Norwegian Air Traffic Controllers' Association and Spekter. It follows from this agreement that seniority may be deviated from in the event of temporary lay-off when there are justifiable grounds, cf. section 18, third paragraph.

The background for the dispute was that Avinor Flysikring in 2020 had to temporarily lay off air traffic controllers as a result of a decline in air traffic due to the Covid-19 pandemic. In 2005-2006, several air traffic controllers had resigned their positions to work abroad after their application for leave of absence was rejected. This happened at the same time as Avinor Flysikring was working on a profit improvement program where the conclusion from the management was basically that there were too many air traffic controllers.

It turned out that instead there was a shortage of air traffic controllers, and in 2006 there was an extraordinary job advertisement. Many of those who had travelled abroad entered into an agreement to take up a position when they returned. The Labour Court assumed that the interruptions had lasted from 11 months to more than 2 years. Upon temporary lay-off in 2020, seniority was calculated from the last date of hire. For some air traffic controllers who had been abroad, this meant that long service time in the company was not considered.

The Norwegian Air Traffic Controllers' Association issued a summons to the Labour Court and argued that previous service time should be included for air traffic controllers with interruptions in the service when calculating seniority, but so that the length of interrupted service was deducted. Spekter and Avinor Flysikring, for their part, argued that previous service time should not be considered when calculating seniority, so that the decisive factor in calculating seniority was continuous service time. In the event that seniority was to be calculated on the basis of continuous service time, the Norwegian Air Traffic Controllers' Association stated that the employer could in any case not completely disregard previous, long service time in the assessment of justification.

The Labour Court upheld Spekter and Avinor Flysikring in that seniority as a selection criterion for redundancy had to be understood as continuous service time.

In this connection, the Labour Court pointed out that the main agreement between the Norwegian Air Traffic Controllers' Association and Spekter is based on the main agreement between LO and NHO, and that the corresponding provision in this agreement is understood so that seniority must generally be interpreted as continuous service. However, it is worth noting that the Labour Court made a specific assessment of whether the Main Agreement between the Norwegian Air Traffic Controllers' Association and Spekter should be understood in the same way as the Main Agreement between LO and NHO on this point.

The Labour Court also emphasized that Avinor had an internal "restructuring policy" which stated that continuous service time was decisive in calculating seniority. The Norwegian Air Traffic Controllers' Association had provided several suggestions for the draft of this policy, without commenting on what was stated about the calculation of seniority.

As regards the Norwegian Air Traffic Controllers' Association's allegation that the employer could not completely disregard previous, long service, the Labour Court stated that "it is clear that previous service is relevant in the assessment of objectivity pursuant to the Main Agreement ยง 18 third paragraph". With regard to the question of whether previous service could be given such weight that there was a basis for deviating from seniority (calculated on the basis of continuous service), the Labour Court assumed that this would depend on a specific assessment of several factors, including the length of the previous service, the length and cause of the interruption in the service, and the length of the subsequent continuous service. Furthermore, the assessment of these conditions must be seen in connection with the other justifiable considerations the employer must consider when selecting for temporary lay-off.

For most collective bargaining companies, the collective agreements provide guidance that the order of seniority is the starting point for selection for temporary lay-off or downsizing, and companies that are not bound by collective bargaining agreements will often determine seniority as a selection criterion in such processes. The Labour Court's judgment entails an important clarification of how seniority is to be calculated unless otherwise expressly stated.

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