Disputation: Alexander Næss Skjønberg
Master of Laws Alexander Næss Skjønberg will be defending the thesis; The peace obligation for the degree of Ph.D.
Original title; Fredsplikt i tarifforhold.
The disputation will be held in Norwegian.
Alexander Næss Skjønberg
Photo: Kyrre Lien
- Professor John Asland (leader)
- Professor emeritus Niklas Bruun
- Dean Mia Rönnmar
Chair of defence
Industrial actions such as strikes, lockouts and boycotts are legitimate “weapons” for employees and employers when negotiating employment terms. This has been the case since the late nineteenth century when the system of collective bargaining and collective agreements was first developed and adopted. However, when a collective agreement is entered into, the main rule is industrial peace: a state in which the parties and their members are bound by an obligation to refrain from industrial action. This thesis discusses the foundation, justification and scope of the peace obligation.
The foundation and justification of the peace obligation
The peace obligation rests on a dual basis in Norwegian law. It has a statutory basis (the Labour Dispute Act “arbeidstvistloven” and the Public Service Dispute Act “tjenestetvistloven”) and a contractual basis. The latter is the initial. The peace obligation is an underlying assumption in every collective agreement. This basic notion of the peace obligation originates from agreements between LO and Norsk Arbeidsgiverforening (N.A.F., now NHO) which regulated dispute resolution procedures from the beginning of the twentieth century. This thesis also demonstrates that foreign legal doctrine, particularly German, has influenced the notion of the peace obligation in Norwegian law.
There are different ways to justify the peace obligation. This thesis stresses that such an obligation is essential for the collective agreement’s normative effect and that it is thereby fundamentally in the interest of both employers and employees.
What is comprised by the peace obligation?
The main purpose of this thesis is to examine when an action falls within the scope of the peace obligation and when it does not. Does the peace obligation imply that industrial actions are prohibited during the tenure of the agreement? No, it does not. The fundamental point is that the peace obligation only encompasses industrial action, which purpose is to force resolution of a legal dispute or of a question that is regulated in the collective agreement. Consequently, the peace obligation is relative. Nevertheless, the analysis shows that the term “legal dispute” is extensive and that a collective agreement in general is a comprehensive regulation of matters relating to the employments.
In practice, there are three categories of actions that fall outside the scope of the peace obligation: sympathy actions (sympathy strike), political strikes and actions that have an individual contractual purpose. The latter category includes situations, for example, where employees jointly resign from their positions to start work at another employer or jointly refuse to perform work they believe is dangerous. The purpose of the action is decisive. The thesis identifies the elements of this assessment and discusses whether the consequences of the action are of relevance.
However, as demonstrated in this thesis, it is not only the purpose of the action that is decisive. In addition, the Labour Court has developed certain objective preconditions. This is particularly the case when it comes to political strike. Even though the purpose of such action is lawful, it will contravene the peace obligation if there is not a reasonable degree of proportionality between the duration of the strike and its consequences. The thesis also queries whether such objective preconditions derive from both the statutory and contractual peace obligation. The conclusion is that only the contractual peace obligation is the basis for these conditions and that the view in legal doctrine that the scope of the contractual and statutory peace obligation is the same must be reconsidered.