Avvikende tariffavtaler

Om eventuelle rettslige begrensninger i arbeidsgivers adgang til å inngå konkurrerende og avvikende tariffavtaler, særlig om det ulovfestede ufravikelighetsprinsippet

av Terje Gerhard Andersen

The organisational structure in the area of Norwegian labour law is complex in the sense that several trade unions often compete to recruit the same employees. As a result of this, employees at the same workplace can have several trade unions from which to choose. The legal question which is discussed in this thesis is whether an employer who is bound by a collective wage agreement is free to enter into a competing collective wage agreement with differing salary and work conditions, or whether his/her freedom to enter into such agreements is limited. If the employer is free to enter into differing and competing collective wage agreements, one could get a situation where employees who carry out the same work in the same entity receive different salaries depending on whether they are members of the one or the other trade union.

In Norwegian law, the employer�s right to enter into differing and competing collective wage agreements is not regulated by statute. However, legal literature has developed the so-called �ulovfestede ufravikelighetsprinsipp�, that is, the non-statutory peremptory principle, which allegedly restrict the employer�s freedom of contract in this respect. The peremptory principle is based on an argument from implied terms and has won widespread support both from lawyers and from parties to collective wage agreements. Through analyses of case law and policy considerations this thesis argues that it is doubtful whether there is sufficient legal basis for the non-statutory peremptory principle. The thesis also discusses whether restrictions in the freedom to enter into differing and competing collective wage agreements can have other legal bases, inter alia, the duty of loyalty, the principle of good faith and fair bargaining, the Norwegian Contracts Act Section 36, or � in the public sector � the equal treatment principle in administrative law.