Norway

• Author: Directorate-General for Employment, Social Affairs and Inclusion (European Commission), European Centre of Expertise (ECE)
• Pages: 43-44

Flash Re por t 1 2/2018

Decem ber 20 18

43

Norw ay

Sum ma ry

The Sup reme Cour t h as issued a ru ling in a case on the concep t of em ploy er.

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1 Nation al Le gislat ion

Not hing to repor t.

2 Cou r t Rulings

2.1 Concept o f em plo yer

Sup rem e Cour t, No . HR-201 8-2371 -A, 12 Decem ber 2018

On 12 D ecember 20 18, t he Su prem e Cour t r uled in a case involv ing seve ral em ploy ees

form ally em ployed in sub sidiaries of the air line com pany Norwegian Air Shuttle ASA

(NAS) , w ho claim ed to be em p loyees of the par en t com pany NAS an d t he com pany

Norwegian Air Norw ay AS ( NAN) . NAS had st ructu red its business by employ in g pilots

and cab in c rew in subsid iar ies an d co nclu ding agr eem ent s bet wee n t he su bsid iari es an d

NAS/ NAR in whi ch t he su bsidiaries pro vided st aff to NAS/ NAR.

The em ployees argu ed t h at the agr eements bet w een the su bsidiaries and NAS/ NAR

were in realit y agr eements under which t he em ploy ees were h ir ed out from the

sub sidiar y t o NAS/ NAR. Und er Norwegian law, t hese em ploy ees would t hen be ent itled

to per man ent em ploy me nt wit h NA S/NA R b ecause th e le gal hiri ng of p erso nnel req uir es

eit her t h at the w or k is of a t em porary nat ure or t hat th e em ployees ar e act ing as

te mpo rar y r eplace men ts, cf. Sect ion 14-9 of the Work ing Env ironm ent Act . Nei ther wa s

th e case here. Th e Suprem e Cou rt, however , f ou nd that t he agreem en ts were n ot

agr eements to h ir e out em ploy ees, but in st ead agreem ent s for t he prov ision of a

service. In it s assessm ent, the Supr em e Cour t considered a num ber of criteria, which

have previou sly been draw n up b y the Su prem e Cour t in the determ ination of whet her

certain cir cumst an ces constitute t he pr ov ision of a service or t he hiring of manpower.

Wit h p art icula r em ph asis o n t he f act tha t t he Supr eme Court fo und th at the subsi diar ies

managed the work and were t hus liable f or t he r esult s of the work, the conclusion was

th at t he cont ract had been concluded for the provision of a service. Consequently, the

em ployees were n ot enti tled t o em ploy men t w ith NAS/ NAR on this g roun d.

The em ployees furt her argued t hat NAS was their em ployer on t he grou nds that NAS

had d e f acto acte d as th eir emp loy er. The emp loy ees h ad o rig inal ly b een emp loy ed w it h

NAS, and h ad b een transferr ed to t h eir current formal em p loyers in reor ganisation

tr ansfers. The em ployees argued that as the parent com pany, NAS continued to retain

prim ary inf luence over t he activ ities of the su bsidia ries.

The Supr em e Cour t has i n pr evi ous c ases f oun d t hat a p aren t co mpa ny may also be the

act ual employ er of an employee on t he groun ds that t he parent com pany h as de fact o

act ed as the em ployer, cf. Rt-1990 -112 6 ( ‘Wärtsilä’). Contrary to prev ious cases in

wh ich th e p aren t com pan y had act ed as t he em ploy er on a d ay-t o-da y o per ati onal ba sis,

by in t er alia d et erm ining the em ployee's salary , th e Supr em e Cour t did not find that

NAS had h eld such fu nction s. Th e Suprem e Court fu rther opined t hat t he fact t hat a

par ent com pany has pr imary influence ove r t he act ivit ies o f a subsi diar y du e t o t he f act

th at it is th e p aren t com pan y ca nno t i n i tse lf i mp ly th at th e pa ren t comp any is th e act ual

em ploy er. I n thi s asse ssme nt , t he Supr eme Cour t ref err ed t o a pu blic eva luat ion car rie d

out by a panel in 199 6, i n wh ich a r ule on the paren t company becom ing t he employer