The Norwegian Supreme Court concludes that time spent on a journey ordered by the employer, to and from a place other than the employee’s fixed or habitual place of work, should be considered working time within the meaning of the statutory provisions implementing the Working Time Directive (2003/88/EC). This ruling takes into account the Advisory Opinion of the EFTA Court.

This case report concerns the lawfulness of a notified boycott against Holship Norge AS (‘Holship’) by the Norwegian Transport Workers’ Union (‘NTF’). In its decision, the Supreme Court considered whether the collective agreement exemption from competition law could be applied, and whether the boycott was unlawful pursuant to the right to freedom of establishment established by Article 31 of the EEA Agreement, cf. Article 101 of the Constitution and Article 11 of the European Convention on Human Rights.
The boycott would prevent Holship’s staff from loading and unloading ships docked at the Port of Drammen. NTF’s purpose was to force Holship to enter into a collective agreement containing a priority of engagement clause, reserving loading and unloading work for dockworkers associated with the Administration Office for Dock Work in Drammen. The majority of the plenary Supreme Court found (10-7) that such boycott would be unlawful pursuant to section 2 of the Boycott Act. The dissent concerns the EEA rules.

EU employment protection is usually limited to “employees”, meaning that independent contractors are not covered. However, EU law often leaves it to Member States to determine the meaning of employee. The directives regulating transfers of undertakings, collective redundancies, written working conditions, information and consultation, part-time work, temporary agency workers etc. are all examples of protection covering only ‘employees’ as defined by each Member State.
Consequently, the interpretation of ‘employee’ at the national level determines whether protection in EU law applies. This case report concerns the distinction between an independent contractor and employee. The question was whether a support worker for a child needing extra care and support should be considered as employed by Ålesund municipality. The majority (4-1) found that the support worker was an employee. The case illustrates how the notion of employee in Norwegian law adapts to new ways of organising work and may be of interest in other jurisdictions.