Principles of Public Law in Labour Law

Studia z zakresu prawa pracy 2009 ISSN 1429-9585

Stein Evju

PrinciPlES of Public law in labour law

introduction

Labour law, if seen as private law, has been intermingled with public law from the inception, in the late 1800s, of what is frequently referred to as the “modern labour law”. Even before the employment relation was predominantly and firmly set in the domain of contract law essentially public law legislation was enacted in the pertinent field. The first labour law, in Norway like in most European countries,1 was a “factories act” (1892) with rules on safety and health, minimal working time regulations, and an administrative body to oversee and enforce the rules. Prior and extensively public law based regulation of work relations, e.g. for rural and urban farm hands and servants, craftsmen and ap-prentices, and mine workers, were gradually dismantled from the end of the 19th century through the first two decades of the 1900s. This ran parallel to incipient industrialization, which gained momentum after the turn of the century. It was only later that labour law emerged as a separate legal discipline parting with mainstream contract law.

This did not gain a foothold until the late 1920s and crystallized with Paal Berg’s seminal book “Labour Law” (1930).2 Taking inspiration from current European, par-ticularly German, doctrine Berg shaped an individual, systematic and comprehensive notion of labour law as a legal discipline that still is foundational. In keeping with Ger-man scholars Berg limited the discipline to the law pertaining to work relations based on private law contracts of employment but emphasized that labour law includes all of the various legal subjects pertaining to such employment relationships, be they of a private or a public law nature.3 Following Sinzheimer’s lead,� de facto if not in every respect, Berg was concerned with the “unity of the law”, employing a functional approach not relying on a private-public law distinction in structuring the discipline or discussions of the various issues.

1 Cf. S. Laulom, “Administrative processes”, in J. Malmberg (Ed.) et al., Effective Enforcement of EC Labour Law, Uppsala 2003, at 109.

2 P. Berg, Arbeidsrett, Oslo 1930. Berg was a Justice of the Supreme Court from 1913, its Chief Justice from 1928, and also President of the National Labour Court from 1916.

3 P. Berg, l.c. at 8, cf. e.g. E. Jacobi, Grundlehren des Arbeitsrechts, Leipzig 1927, at 17. � See H. Sinzheimer, Ein Arbeitstarifgesetz, Berlin 1916, at 21 on the ”ungetrennten Einheit des Rechts“

and the assertion that a private-public law divide is “innerlich nicht vorhanden“ (“intrinsically non-existent“), cf. O. Kahn-Freund, “Hugo Sinzheimer 1875 — 19�5”, at 7�–77, in: O. Kahn-Freund, Labour Law and Politics in the Weimar Republic (R. Lewis, ed.), Oxford 1981.

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It can freely be added that the distinction is not clear-cut. Frances Raday moreover noted that many norms of public law can also fit comfortably under the heading of private law.5 This essay should illustrate her point. The object is to briefly present some aspects of the role of public law and public law principles in Norwegian labour law, however with-out embarking on a discussion of the public-private classification in general terms. It is a distinction of long standing in Norway as well, yet from the point of view of Norwegian labour law it is no focal point. Further developed since Berg’s seminal study labour law is pragmatically recognized as a mixtum compositum characterized more by the functional interaction of public and private law norms, with no sharp dividing lines being upheld in theory or practice. However, some categories of principles are still discernible as being at the outset principles of public law, reaching beyond traditional contract law principles such as the principle of good faith but nonetheless finding their way into contract rela-tions in labour law. The public law principles pertaining to abuse of power is a pertinent example, particularly with regard to dismissal law. I take this as my starting point.

abuse of Power and Dismissal law

Statutory dismissal protection, laying down a requirement of just cause (sachlichen Grund) for ordinary dismissals, was introduced for the first time on a general level in 1936. That marked a striking change in the state of labour law and one where a possible link with public law principles may be pointed to.

Principles designed to restrain abuse of power, modelled on the French doctrine on détournement de pouvoir, won recognition and were asserted in administrative law the-ory in the 1920s, did however not really gain a foothold in practice until the 1930s. A Supreme Court decision from 19336 — incidentally, a labour related case — is generally acknowledged as the break-through and decisive precedent for a doctrine on abuse of power.7 A hospice owner in Oslo was awarded damages for having been denied a liquor licence. The swing vote in the executive committee of the City Council was found by the Supreme Court to have been motivated by the fact that the hospice owner was party to a dispute on the conclusion of a collective agreement. The refusal to grant the licence consequently was, in the words of the Supreme Court, employed as an instrument of struggle in an unresolved industrial dispute and was thus held to be based on “ulterior unjust considerations”.

A landmark decision two years later contrasts the contract law approach still prevail-ing in the sphere of labour law. In a dismissal case8 the Supreme Court, with regard to “the conduction of conflicting economic interests”, explicitly rejected an analogy from the 1933 decision and to draw on considerations from the sphere of administrative law “in the strictly private law relationship between a company and its employees”, summing up

5 F. Raday, “Constitutionalization Of Labour Law ?”, in R. Blanpain/M. Weiss (eds.), The Changing Face of Labour Law and Industrial Relations, Baden-Baden 1993, at 89.

6 Rt. [Norsk Retstidende = The Norwegian Supreme Court Law Reports] 1933, 5�8. 7 E.g., E. Smith, “’Détournement de pouvoir’ around 1920 and today” (in Norwegian), in A. Bratholm et

al. (eds.), Samfunn, rett, rettferdighet, Oslo 1986. 8 Rt. 1935, �67.

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the state of labour law in the following terms. “In an ordinary employment relationship in Norwegian law the employer undoubtedly has the right to dismiss workers, with lawful notice, at will and according to his own discretion without being required to state or to establish any justifiable grounds or any reason whatsoever — and without being subject to judicial review.”

A radical change was brought about by the legislator’s intervention, with the intro-duction in the new 1936 Workers’ Protection Act of Sec. 33 No. 3 stating that a dismissal should be held to be unlawful — entitling the worker to claim for limited compensation — if the dismissal “is not warranted by [has just cause in] circumstances connected with the employer, the worker or the enterprise but is due to wholly ulterior reasons”.9 An even more wide-ranging provision — to the effect that “unreasonable” dismissals should be considered unlawful — was proposed in the Bill tabled merely two months prior to the 1935 Supreme Court decision. That proposal met with very strong opposition in Parlia-ment [Stortinget]. The result was a form of compromise. There is no decisive evidence to show that this was based on analogy from public law principles.10 However, the debate in Parliament through which the new provision was coined, as well as the final wording of the provision, are well suited to support the impression of a certain influence from the way of thinking that had just won recognition in administrative law. There was consensus on the need to protect workers against abuse of the employer’s right to dismiss. The issue, then, was not to delimit too strictly the scope of managerial prerogative with regard to the employer’s discretion of appropriateness on whether to maintain an employment rela-tionship. The focus, and the objective at the outset of the new provision, was to provide a protection against arbitrary dismissals unfounded in circumstances relating to legitimate business needs.

The wording of the provision, supported by the preparatory work, clearly suggested restraint in judicial review of dismissals. It rested of course with the courts to take a posi-tion on what was to be considered as “wholly ulterior reasons”,11 thus defining negatively the scope of legitimate grounds for dismissal. However, within that scope, essentially very wide, considerable freedom of discretion was left to the employer. The prevailing opinion, in legal writing and in case law, was that a decision to dismiss was “warranted” if made on the basis of an assessment of what was required to better serve the needs of the enterprise. Gradually, it was established that the onus at the outset rested with the em-ployer to show that a decision to dismiss was made on the basis of circumstances relevant to the enterprise. This was no strict requirement in the sense that there was a need to show

9 The new provision applied only to workers having three years of continuous service upon having reached the age of 21. The age and service requirements were since modified and subsequently repealed in 1975, by an amendment to the then 1956 Workers’ Protection Act preceding the 1977 Workers’ Protection and Working Environment Act now superseded by the 2005 Act on Work Environment, Working Time and Dismissal Protec-tion.

10 In the preparatory work, reference was made, on the other hand, to dismissal protection clauses pertain-ing to shop stewards and workers’ representatives in some collective agreements and the 1920 Act on Works Councils, however insufficient to fully serve as models for the 1936 enactment.

11 As done by the Supreme Court in Rt. 1939, 53. The dismissal of a female worker on the grounds that she had gotten married was found unjustified by being “due to wholly ulterior reasons”.

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“necessity” to dismiss for business reasons. Generally, it was considered sufficient for the employer to relate how the decision was made subsequent to his assessment of business needs. The requirements on the employer to substantiate the factual circumstances un-derlying his assessment were modest. With regard to any assertion of “ulterior reasons” the burden of proof rested clearly with the worker. Further, the justification requirement did not imply protection against “unreasonable” dismissals, i. e., dismissals being based on relevant circumstances but having “unreasonable” or strongly adverse effects on the employee, e.g., with respect to loss of job and income, possibilities of finding new em-ployment, etc.12 Essentially it was not within the competence of courts to review the employer’s assessment as such. As long as a dismissal was made on relevant grounds it was not a matter for the courts to check and set aside the employer’s actual balancing of the relevant circumstances and interests. Roughly speaking, the scope of judicial review was restricted to checking that the employer had actually made an assessment on relevant grounds.

This is not to say that the courts refrained from any and all scrutiny of employer assessment. In singular cases, the lower courts can be seen to have exercised more scru-pulous review of the justification of a dismissal. The general trend was however one of restraint, in deference also, it may be argued, to the traditional doctrine of managerial prerogative.

Until the turn of the 1960s there was no Supreme Court case law of actual importance in this field.13 A highly significant development then took place through a series of Su-preme Court decisions in the years 1959–1972.

As a starting point, no formalized requirements were established with regard to the procedure to be applied by the employer in making decisions on dismissal. In Rt. 1959, 900 the Supreme Court, finding an individual dismissal unjustified, focused specifical-ly on the employer’s procedure in its justification assessment. The Court in particular pointed to the importance of allowing the worker to be heard prior to a decision in order to give him an opportunity to explain himself and express his views so that they may be taken into consideration by the employer. This approach was expanded on and further developed in subsequent decisions on redundancy dismissals.1� Through its case law the Supreme Court effectively established a right for the worker to be heard, personally or through his representatives in the workplace, in all forms of potential dismissal cases. An obligation on the employer to apply a proper procedure was made a point in itself; the role, the scope and thoroughness of consultations and, particularly in redundancy cases, cooperation with workers’ representatives being accorded considerable weight in justifi-cation assessments.

12 This was evident from the legislative history of the 1936 Act. Similarly, a proposal by a minority in the drafting committee on the superseding 1956 Workers’ Protection Act to expand the protection to cover dismissals “obviously unreasonable” to the worker was explicitly rejected in the final Bill. The phrase “but due to wholly ulterior reasons” was not included in Sec. �3 of the 1956 Act. No substantive change was however intended by that deletion; the wording of the justification requirement was otherwise maintained. 13 Apart from the decision in Rt. 1939, 53, cf. supra, note 11.

1� Cf. Rt. 1962, 888, Rt. 1966, 393, Rt. 1967, 71 and Rt. 1972, 1330.

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Closely linked with this is a second essential element, the requirement of correct factual foundations. If, with respect to the criteria or standards he has made his basis for considering whether to dismiss, an employer has built his assessment or decision on incorrect facts the dismissal may for that reason be set aside.15 This was no novel require-ment, but it was developed in further detail and extended to comprise requirements also of sufficient facts, i. e., that the employer’s assessment and decision is based on a suf-ficiently broad set of relevant considerations. In effect, a heavier burden of proof was put on the employer.

A third and interrelated element in this development was the cautious emergence of recognition of the relevance of considerations of reasonableness. However maintaining that unreasonable effects to the worker were in itself insufficient grounds for holding a dismissal to be unwarranted, the Supreme Court effectively included considerations of reasonableness as an element in the justification assessment. The Court in several deci-sions pointed out that when assessing the needs of the enterprise the employer is also obliged to take into account considerations relating to the worker concerned, with a view to avoiding dismissal and to offer some form of alternative employment if possible.16 This line of reasoning was primarily applied in redundancy cases with regard to work-ers at a somewhat advanced age and with a long period of service with the enterprise (10–15 years and more). It nonetheless implied an important supplement to justification evaluations, setting the stage for more nuanced and compound application of the statutory requirement of just cause better served to safeguard the interests of workers.

Again there is no cogent evidence of a direct link with public law principles. It can-not be pointed to any explicit references to norms in the sphere of public law in the case law concerned. Still, it is soundly arguable that the development of dismissal law must be seen in conjunction with, and as having been influenced by, principles of public law and their development in administrative law. Requirements of sufficient and correct facts and of due process are basic norms of administrative law, important with regard to judicial review of the legality of decisions by public bodies. Case law contributed significantly to the doctrine on abuse of power in the 1950s and 1960s. This was supplemented by legis-lative development, initiated around 1950 and concluded in the 1967 Public Administra-tion Act17 laying down rules, i. a., on a duty of clarification with a view to ensuring proper information before making decisions, on informing and obtaining opinions from parties concerned, and on the prerequisites for the validity of decisions in the case of procedural error. There are obvious parallels between the development and norms of administrative law and the Supreme Court’s case law on dismissals as regards the framing of require-ments on the employer of securing proper information, of careful examination of all circumstances involved and of carefully considering the balancing of the interests of the

15 Illustrated rather pointedly by the decision in Rt. 1962, 6. There, an error with regard to the calculation of the seniority of the worker concerned was held sufficient to find the dismissal unwarranted, inasmuch as the employer had accepted to apply a seniority criterion and had submitted no other grounds for the selection of that particular worker as one of a number to be dismissed as redundant.

16 Cf. note 1�, supra, in particular the decision in Rt. 1972, 1330. 17 Its official heading in full is Act of 10 February 1967 relating to Procedure in Cases concerning the

Public Administration.

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enterprise and the circumstances pertaining to the worker, with an emphasis on procedure in conjunction with this. The parallel is perhaps most lucidly illustrated by the decision in Rt. 1972, 1330. The Court held that lack of prior consultation with the worker was an er-ror of procedure, however not decisive in itself. But in the opinion of the Supreme Court majority,18 there was reason to assume that the error might have affected the outcome of the employer’s decision, implying that an alternative to dismissal might have been ar-rived at had a proper procedure been employed. In substance, the Court’s opinion on this point practically paraphrases the principle embodied in the Public Administration Act Sec. �1 on procedural error.19 Also, there is a striking parallel in the position the Supreme Court took on the principle of judicial review. The opinion that once requirements on facts and procedure, etc., were complied with the appropriateness itself of the employer’s balancing of relevant circumstances when considering whether to dismiss was not subject to judicial review, echoes in practical terms the prevailing opinion on the scope of judi-cial review in administrative law doctrine.

Dismissal law has since moved on. New statutory provisions, building and expand-ing on prior legislation and principles embodied in case law, were enacted in the 1977 Workers’ Protection and Working Environment Act and maintained in the superseding 2005 Act on Work Environment, Working Time and Dismissal Protection.20 On the thus revised basis subsequent case law has in effect established as a general norm a full and unbounded right of judicial review in dismissal cases, holding that that there is no limita-tion in law of the courts’ competence in this respect21 — and in so doing it has moved beyond the confines on the scope of judicial review prevailing as a principle in adminis-trative law.

Trade union freedom and collective labour law

Influence from principles of public law are in similar ways discernible in other areas of labour law, however more sporadic.

In a notable decision in Rt. 1967, 1373, the Supreme Court addressed the issue of union power in relation to members. The LO-affiliated Norwegian Union of Chemical Industry Workers had decided by a membership majority vote to collectively join a home

18 There was a 3–2 split on the appraisal of evidence at this point, but the full Court agreed in principle on the norm to be applied as a point of departure.

19 Sec. �1 states as follows. “If the rules of procedure contained in this Act or regulations issued in pur-suance thereof have not been observed in the proceedings in a case concerning an individual decision the ad-ministrative decision shall nevertheless be valid if there are proper grounds for assuming that the error cannot decisively have affected the contents of the administrative decision.”

20 For a general overview, see S. Evju, “Termination of Employment on the Initiative of the Employer and Income Security of the Worker Concerned”, in International Society for Labour Law and Social Security, 10th International Congress, Reports and Proceedings, Vol. 2 [eds. B. Aaron/D. F. Farwel], Washington D. C. 198�, and also S. Evju, “Disputes concerning termination of employment”, in European labour courts: Current issues [ed. W. Blenk], ILO Labour-Management Relations Series No. 70, Geneva 1989. (Both articles are reprinted in S. Evju, Aspects of Norwegian Labour Law, Institutt for offentlig retts skriftserie nr. 8/1991, Oslo 1992.)

21 See on the seminal decision “Supreme Court Rt. 198� p. 1058” [annotated by S. Evju], 5 International Labour Law Reports 292 (1987). (Reprinted in S. Evju, Aspects of Norwegian Labour Law, l. c.. note 20.)

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insurance plan. The Supreme Court held22 that the union could not compel members to join, stating that the union’s decision “is outside of the primary objective of the union in its capacity as a trade union and constitutes a substantial encroachment on the rights of the individual member which cannot be enforced on [the plaintiffs] against their will. In the conflict of interests at issue here... the rights of the individual must take priority”. The Court’s reasoning on this point is quite analogous to an important aspect of its public law doctrine on abuse of power, under which a distinction between primary and other, not just ulterior, objectives has been relied upon in different ways in judicial review of discretionary administrative power pursuant to statute law. The decision may, of course, also be seen as an expression of a more general principle that unions must not infringe the fundamental rights of their members. Reference to principles of fundamental rights and reasoning in analogy with public law principles of due process, abuse of power and judicial review was further expressed in Rt. 1969, 1129, where the Supreme Court upheld the union’s subsequent expulsion of the three plaintiffs in the 1967 case.23

In collective labour law it is well established that the employer has a right to impose measures of control of workers, e.g., to supervise compliance with rules on working time. Traditionally it has been maintained that courts may not set aside management’s deci-sions on grounds that the measures involved are not adequate or reasonable. Whether to impose control measures is a matter of managerial discretion. To this point of departure the Labour Court in 1959 added that “the Court cannot set aside the assessment unless it is found to be substantiated that management has gone beyond any discretion or has im-posed measures for wholly different or ulterior reasons”.2� Twenty years later in a similar case, this was taken a step further, the Labour Court then saying: “The precondition for a right of this kind is however that, objectively considered there is a need25 for the measure in question, and that the measure is not applied arbitrarily in the sense that certain groups of workers for no genuine reason are put in an exceptional position.”26 In both cases the Labour Court’s opinions bear close resemblance to current administrative law principles on abuse of power and judicial review. The 1978 decision may however also be perceived as going beyond this, implying a more direct approach. The statement on “objectively considered... need” may be seen to indicate a positive requirement to the effect that the exercise of managerial prerogative must be justly founded and fair in relation to workers’ interests and that it is within the Labour Court’s competence to review assessments made also on such grounds. Indications of a positive “just cause” requirement of this kind can

22 By a majority vote of �–1, Chief Justice Wold dissenting. For a more extensive account and some critical comments to the decision, see H. Jakhelln, “The Freedom of the Worker to Organize in Norway”, in Die Koalitionsfreiheit des Arbeitnehmers/The Freedom of the Worker to Organize/La liberté syndicale des salariés [eds. H. Mosler/R. Bernhardt], Berlin/Heidelberg/New York 1980, Vol. 1, at 618.

23 Further on membership issues, see H. Jakhelln, l. c. note 22, at 637 et seq., and more briefly M. G. Mitchnick, Union Security and the Charter, Toronto and Vancouver 1987, at 39–�0.

2� ARD [Dommer og kjennelser av Arbeidsretten = The National Labour Court Law Reports] 1959, 1. 25 The Court here uses the expression “saklig sett er behov”. From the point of view of Norwegian termi-

nology this might also be translated as “a warranted need” or to the effect that there must be “just cause” (sach-lichen Grund) for imposing the measure.

26 ARD 1978, 110.

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further be found in later case law.27 The decisions span a variety of issues; however there is yet no decisive precedent on this specific point.

It should be added that the Labour Court case law concerned must be seen as referring to the substance of managerial decisions and not (merely) to some form of requirement of due process. Rules on information and consultation with shop stewards or workers’ rep-resentatives have been an important part of collective agreements in Norway for a great number of years28 and have been developed into quite comprehensive sets of regulations in their own right. Abiding by such rules is a precondition to valid decisions by management, as noted, albeit merely in passing, by the Labour Court in the decision in ARD 1978, 110. There is, however, a negligible number of decisions and no discernible traces of influence from principles of public law in Labour Court case law on the interpretation and applica-tion of collective agreements’ provisions of this kind.

Transitory observations

In post World War II years especially, there has been consistent and considerable concern with ideas and principles of rule of law and legal protection of individual and fundamental rights. Further, there have been continuous and significant developments in this regard in almost all areas of law, public as well as private. It may well be said that ad-ministrative law has been the primary breeding ground for the development of principles on due process and the safeguarding of individual rights. The developments in this field, through case law and in legislation, have no doubt also been of more general importance, wielding influence in other areas of law as well.

Important as this may be, it still must not be seen in isolation. In the field of labour law there have been extensive and significant developments in legislation, particularly since the early 1970s, not merely in dismissal law but also with regard to working con-ditions, health and safety, workers’ representation and participation in management,29 safeguarding the right to privacy and non-discrimination. This has partly taken place through specific labour legislation, the more important acts being the 1977 and 2005 Worker Protection Acts. One of the notable innovations of the 1977 Act was its Sec. 55 A (later extended, now Ch. 13 of the 2005 Act) restricting employers’ freedom to query job applicants on their political, religious or cultural views or union membership.30 In part,

27 See, e.g., ARD 1985, 132, ARD 1986, 165, ARD 1989, 91 and ARD 1990, 169. 28 In some areas well prior to the first “basic agreement” of 1935. 29 Regulated and gradually expanded in different companies’ acts since 1972, also a topic in the 1977 and,

more extensively, in the 2005 Worker Protection Acts. 30 At issue in Rt. 1986, 1250, a decision dealing also with the relation to ILO Convention No. 111. See

“Supreme Court Rt. 1986 p. 1250” [annotated by S. Evju], 7 International Labour Law Reports 201 (1989). (Reprinted in S. Evju, Aspects of Norwegian Labour Law, l. c.. note 20.) Sec. 55 A was also at issue in the right to organise cases in Rt. 2001, 2�8 (positive aspect), and Rt. 2001, 1�13 (negative aspect), involving also the European Convention of Human Rights, ILO Conventions Nos. 87 and 98, and the European Social Charter. See further “Supreme Court. Rt. 2001 p. 2�8” [annotated by S. Evju], 21 International Labour Law Reports 23–29 (2002), and “Supreme Court. Rt. 2001 p. 1�13” [annotated by S. Evju], 23 International Labour Law Reports 33–�1 (200�).

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it is a matter of legislation of a more general scope but applying also to, and to a various extent containing provisions specific to, the labour market.31

It should be noted that the role of constitutional law in relation to labour law has been and remains a rather unobtrusive one. The 181� Constitution of Norway contains merely a small number of provisions on the protection of fundamental rights32 and none specific to labour rights.33 On the other hand international law developments in the field of human rights have been a factor of some importance, mainly since the 1960s but in particular from around 1980 and have figured even more prominently in the past decade.3�

Alongside this runs a long line of developments in the field of collective agreements. The long standing tradition of collective bargaining and the development throughout the years of both substantive and procedural norms to balance and restrain management’s unilateral power and to safeguard workers’ interests is a factor of importance that can hardly be underestimated. Collective agreement norms have not merely been influential on legislative development and case law beyond the domain of the individual collective agreements themselves.35 Also, in post-war years particularly, a common understand-ing of basic goals and of close cooperation between the major social partners has been a predominant feature in Norwegian industrial relations. Together and in the long term, this has fostered value considerations of reaching importance in the field of labour law generally.

restraining Managerial Prerogative

If we adopt Kahn-Freund’s paradigm that labour law is about the regulation of so-cial power and to be a countervailing force to counteract the asymmetry of power that is inherent in the employment relationship,36 developments since the first formative years along such a line have been formidable. From an analytical point of view the employer’s

31 E.g., the 1978 Personal Data Registers Act, superseded by the 2000 Personal Information Act, and the 1978 Equal Status Act. On the latter see, briefly, S. Evju, “Labour court jurisprudence on sex discrimination, Norway”, in European labour courts: International and European labour standards in labour court decisions, and jurisprudence on sex discrimination [ed. by A. Bronstein and C. Thomas], ILO Labour-Management Rela-tions Series No. 82, Geneva 1995, 89–92.

32 Chiefly on sentencing in criminal cases, retroactive laws, protection of property, and on freedom of speech (Sec. 100).

33 With the exception of Sec. 110 on the right to work (enacted 195�) and the right of workers to “co-determination” (enacted 1980), that being, however, in the form of political declarations and not legally binding provisions conferring substantive rights on individuals.

3� See, i.a., S. Evju, “The role and use of international and European labour standards in labour court judg-ments, Norway”, in European labour courts, l. c. note 31, 37–�0.

35 See for one illustration Rt. 1979, 770. There the Supreme Court accepted a provision on “undue be-haviour” in the LO — N.A.F. “basic agreement”, which was not binding on the employer and the workers con-cerned, as expressing “a general principle in our labour law” and took this as its basis in adjudicating on whether the dismissals of two political (“neo-nazi”) activists on grounds of out-of-job behaviour were “warranted”, and on the possible third-party liability of the trade union concerned for having acted to force the employer to dismiss. See further, e.g., Rt. 1985, 11�1, Rt. 1986, 879, Rt. 2001, 71.

36 O. Kahn-Freund, Labour and the Law, London 1972, � et seq.

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right of direction is pertinently characterized as a residual competence.37 For quite some time it was a moot point, however, whether the exercise of this competence was subject to a “just cause” requirement in any form outside of where such a requirement ensues from specific provisions of laws or collective agreement.

The Supreme Court tackled this issue head on in its decision in Rt. 2001, �18. Restat-ing from a recent decision that the employer’s right of direction is confined within the bounds entailing from laws, collective agreements, the employment contract, etc., the Court went on to add that the right of direction “is also restricted by more general norms of equitableness [“saklighet”]”. This implies in the Court’s words “certain requirements as regards procedure”, moreover a decision must rest on a warrantable basis, and it must not be arbitrary or based on ulterior motives. The phraseology employed by the Supreme Court echoes public law principles; literally restating the key tenets of the abuse of power doctrine. In that doctrine it is inherent that the power of review of courts is restricted as regards assessments of appropriateness. This is different from the well-established case law on judicial review of dismissals, according to which also those facets of the employer’s decision-making is subject to judicial review. Arguably, the Supreme Court’s reasons in the above case are capable of being construed and extended to attain concor-dance with the doctrine of dismissal law. It remains however to be seen which direction future case law will take.

Summing up

Some facets of developments in labour law may well be seen as emanations of public law principles. As judicial review is concerned, the courts can be said to have applied — if not explicitly, then by analogy — principles rooted in public law with regard to pro-cedure as well as to the substance of managerial decisions. On the other hand, the overall picture is far from uniform or coherent. E.g., it needs to be pointed out that the scope of judicial review as it is now established in dismissal law, and in some other regards indicated in Labour Court case law,38 transcends the reaches of recognized principles of administrative law. It may however also be noted that Labour Court case law provides an ample illustration of the interaction of private and public law norms, in that it has been held that the continued effect of a collective agreement, which applies past the ordinary tenure of the agreement pursuant to Sec. 6 No. 3 of the 1927 Labour Disputes Act, is “revived” upon the imposition of a special act on compulsory arbitration.39 With regard to the collective bargaining process and in the interpretation of collective agreements’ “distributive”�0 provisions, on the other hand, a definitely predominant contract law ap-proach is clearly prevailing.

37 In Norwegian a ”restkompetanse”. See S. Evju, “Labour Law and Managerial Prerogative — A Per-spective” (in Norwegian), Arbeidsrett og arbeidsliv Vol. 1, 3–32 (2003).

38 Cf. supra, with note 28. 39 See “Labour Court ARD 1992 p. 1” [annotated by S. Evju], 13 International Labour Law Reports 38�

(1995), and S. Evju, “The continued effect of collective agreements” (in Norwegian), Tidsskrift for rettsvitenskap 198�, 25�.

�0 Denoting provisions e.g. on wages and working conditions as well as on procedure that do not imply or allocate to management a unilateral, more or less discretionary, power to make decisions.

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In conclusion it should be pointed out that labour law developments should be con-ceived of in a wider context. There is a definite influence from ideas and principles of rule of law and social justice. Beyond the social considerations inherent in labour law itself these should, from a Norwegian point of view, be conceived of not so much as prin-ciples of public law as opposed to private law, but rather as general principles common to and essentially applicable to both, however in a context where public administrative law in some regards has provided useful tools for the furthering of developments. To the extent that such tools have been loaned and applied, it is my assessment that they have essentially served to strengthen the position of workers on the individual as well as on the collective level. That is however not to say that public law principles on judicial review or on fundamental rights have been transposed to all areas of labour law. The overall trend in labour law developments, in a long-term as well as a current perspective, is by indisputably more complex and contradictory.

Key words: Norway, public law, abuse of rights, protection against dismissal, trade unions freedoms, managerial prerogatives of an employer.

Zasady prawa publicznego w prawie pracy

Streszczenie

Tematem opracowania jest wpływ zasad prawa publicznego na prawo pracy. Autor zwraca uwagę, że początkowo ustawodawstwo fabryczne posługiwało się instrumentami prawa prywatnego i do-piero stopniowe przenikanie założeń prawa publicznego doprowadziło do powstania prawa pracy we współczesnym znaczeniu. W tym kontekście podkreśla stopniowe ograniczanie dopuszczalności rozwiązania umowy o pracę, bowiem wprowadzenie odpowiednich procedur oraz możliwości wnie-sienia odwołania ograniczyło możliwości nadużywania prawa przez pracodawców. Autor zwraca również uwagę na wynikające z prawa publicznego ograniczenia dla działań partnerów społecznych oraz granice uprawnień kierowniczych pracodawcy. Podkreśla, że rozwój prawa pracy powinien być postrzegany w szerokim kontekście. Zasady ukształtowane w prawie publicznym, w tym zasa-dy rządów prawa i sprawiedliwości społecznej, mają zastosowanie na gruncie prawa pracy. Autor ilustruje swoje rozważania przykładami z ustawodawstwa oraz orzecznictwa norweskiego.

Słowa kluczowe: Norwegia, prawo publiczne, nadużycie prawa, ochrona przed wypowiedzeniem, wolności związkowe, kompetencje kierownicze pracodawcy.