Kan fiskere permitteres? Av advokat Monica Gjerde Sperre og advokat Magne Mjaaland.

Kan fiskere permitteres?

22 Feb 2013

Innledning Adgangen til permittering er ikke lovregulert, men i hovedavtalene i privat sektor som regulerer landbasert virksomhet, offshore og skipsfart, er det permitteringsregler. Det er gjennom rettspraksis slått fast at […]

Kan fiskere permitteres? Av advokat Monica Gjerde Sperre og advokat Magne Mjaaland.

Innledning
Adgangen til permittering er ikke lovregulert, men i hovedavtalene i privat sektor som regulerer landbasert virksomhet, offshore og skipsfart, er det permitteringsregler. Det er gjennom rettspraksis slått fast at også virksomheter som ikke er bundet av tariffavtale kan permittere ansatte, og at hovedavtalenes regelverk i så fall skal følges analogisk. Det er inngått en hovedavtale mellom Fiskebåtredernes Forbund/ Norske Trålerrederiers Forening og Landsorganisasjonen i Norge /Norsk Sjømannsforbund, men den inneholder ingen bestemmelser om permittering. I juridisk teori er det delte oppfatninger om det er adgang til å permittere ansatte som jobber på fiskefartøyer. De som mener at det ikke er en slik adgang begrunner dette bl.a. i at den nevnte hovedavtalen ikke har permitteringsbestemmelser, samt at det er en egen forskrift om dagpenger under arbeidsløshet for denne yrkesgruppen som tilsier at fiskere skal særbehandles.  

Lov og avtaleverk for fiskere
Hovedavtalen mellom Fiskebåtredernes Forbund/ Norske Trålerrederiers Forening og Landsorganisasjonen i Norge /Norsk Sjømannsforbund har som nevnt ingen bestemmelser m permittering, men det står ikke noe i avtalen om at tariffpartene er enige om at permittering ikke skal være tillatt. Vi er heller ikke kjent med at tariffpartene på annen måte har gitt uttrykk for et slikt standpunkt.  I forskrift om dagpenger for fiskere og fangstfolk under arbeidsløshet er det i § 3 regulering i forhold til når fiskere har rett til dagpenger, og i § 7 i forskriften står det at ”den som disponerer fartøyet skal ved permitteringer som dekkes under § 3 bokstav a til f, søke om dagpenger på vegne av det samlede mannskap”.

At det er permitteringsadgang innen landbasert virksomhet, offshore og skipsfart, samt at tariffpartene innen fiskerinæringen ikke har motsatt seg permittering, taler for at fiskere kan permitteres. I tillegg har også myndighetene lagt dette til grunn i forskrift om dagpenger for fiskere, hvor det som nevnt er forutsatt at permittering kan iverksettes. Vi kan for øvrig heller ikke se at det er noen legitime grunner til at fiskere skal unntas fra et virkemiddel som samfunnsmessig oppfattes som positivt. Alternativet til permittering vil i praksis vil være oppsigelse, som er et langt mer drastisk tiltak, iom. at ansatte da på permanent basis mister jobben, mens de ved permittering vil ha rett til å komme tilbake i arbeid når permitteringsårsaken er bortfalt. Sett fra arbeidsgivers side vil permittering også være et mer egnet virkemiddel enn oppsigelse, fordi arbeidsforholdene opprettholdes, slik at man har mulighet for å få dekket opp arbeidskraftsbehovet straks det tar seg opp igjen.     

Fiskeres rettigheter til dagpenger
I forskrift om dagpenger for fiskere og fangstfolk under arbeidsløshet står det at fiskere har rett til dagpenger når et fartøy blir satt ut av drift grunnet havari, forlis eller sykdom blant mannskapet, ishindringer mannskapsmangel, streik ved foredlings- og produksjonsanlegg på land som hindrer levering, eller ved verkstedopphold som blir lengre enn planlagt grunnet uforutsette forsinkelser. Videre følger det av forskriften at dersom mangel på arbeid er forårsaket av kvotereguleringer, sesongavslutning, leveringsvansker, ordinære verkstedopphold, etc. vil fiskere ikke ha rett til dagpenger. Velger arbeidsgiver i slike tilfeller å gå til oppsigelse, vil de som sies opp ha rett til dagpenger etter en karantenetid på 4 uker regnet fra søknadstidspunktet. 

Er permittering betinget av at fiskere har rett til dagpenger
I de hovedavtaler hvor det er regler om permittering, er det stilt vilkår om at det må foreligge ”saklig grunn” for å kunne permittere.  Det fremgår av forarbeidene til folketrygdloven at vilkårene for å få dagpenger etter lovens bestemmelser er noe snevrere enn hovedavtalenes krav til saklig grunn. Dette innebærer at årsaker som oppfattes som saklig og berettiget grunnlag for permittering etter hovedavtalenes regler, ikke nødvendigvis gir rett til dagpenger fra det offentlige for de som blir permittert. Dette skyldes at folketrygdloven, i motsetning til hovedavtalene, stiller krav om at arbeidsgiver ikke kan påvirke det som er årsak til arbeidsmangel. I næringer hvor sesongmessige svingninger innebærer redusert aktivitetsnivå i deler av året, har Arbeidsdirektoratet presisert at rettigheter til dagpenger ikke har vært ment å omfatte ordinær mangel på arbeid i påregnelig lavsesong i klart sesongpregede bransjer, og dette er også blitt fulgt opp av Trygderetten i flere avgjørelser, senest i 2012 hvor asfaltarbeidere som ble permittert vinteren 2011 grunnet generelt lavt aktivitetsnivå i bransjen vinterstid, ikke ble ansett berettiget til dagpenger.

Det som er nevnt ovenfor innebærer følgelig at permittering kan være lovlig etter hovedavtalenes regelverk, selv om ansatte ikke får rett til dagpenger fra det offentlige. Etter vår vurdering vil permitteringsadgangen i forhold til fiskere være tilsvarende som innen andre næringsområder, dvs. at det må foreligge saklig grunn for arbeidsgiver, men at det ikke kan oppstilles noe vilkår om at permittering kun er forbeholdt situasjoner hvor fiskere vil ha rett til dagpenger.

Fremgangsmåte ved permittering
Det følger av NHO og Rederiforbundets hovedavtaler at permittering skal drøftes med tillitsvalgte før beslutning treffes, og ansatte skal som hovedregel gis 14 kalenderdagers varslingsfrist, (fristen er kortere om arbeidsmangel skyldes streik eller naturhendinger/ulykker).  Regelverket gir også anvisning på at under ellers like vilkår skal permitteringer foretas etter ansiennitet. Det er ved permittering av fiskere naturlig å følge det nevnte regelverket analogisk.

Økonomiske konsekvenser
Det følger av lov om lønnsplikt under permittering at arbeidsgiver som hovedregel må betale vanlig lønn de 10 første arbeidsdagene etter at permittering er iverksatt, og at lønnsplikten inntrer igjen etter 30 ukers permittering.

Permitterte fiskere som oppfyller vilkårene for dagpenger, vil få en stønad beregnet ut fra forrige års inntekt, eller snittet av de siste tre års inntekt, som tilsvarer ca 60 % av beregningsgrunnlaget. Årsinntekt ut over ca ½ million medregnes ikke i grunnlaget.

Om forfatteren

Monica Gjerde Sperre
Monica Gjerde Sperre Monica Gjerde Sperre har i nærmere 20 år arbeidet med fiskerirettslige problemstillinger med hovedvekt på arbeidsrett og skipsarbeidsrett. Hun arbeider fra vårt kontor i Ålesund, men har oppdrag i hele regionen Midt-Norge. Hun arbeider med rettslige spørsmål som berører fiskeindustrien hva angår både landanlegg og fiskeflåten. Hun har derfor et godt innblikk i de næringsrelaterte problemstillinger som reises innenfor bransjen både rettslig og politisk.

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