February 2 MAF was summoned for a meeting where we received the tedious message that REPSOL and Maersk Drilling were close to finalizing an agreement that REPSOL would take over the operation of Maersk Inspirer.
To attend the meeting, we were all bound by professional secrecy.
The company informed us that the signing of the contract could be expected at the beginning of March. But this was subsequently postponed many times.
The company also informed us that they considered this to be a transfer of undertaking in accordance with Chapter 16 of the Working Environment Act and that an agreement had already been entered into with REPSOL that 54 of the persons employed at Maersk Inspirer on the date of the transaction are considered a part of this transfer of undertaking. The date of the transaction has not been set, but it is expected later in 2021.
At the same time, we were also informed that the plan is for MDN to hire out drilling personnel to REPSOL (approx. 75 people) for the drilling campaign, which is expected to last approx. 10 to 14 months after start-up later in 2021.
It was, of course, very frustrating that we were bound by professional secrecy and that we therefore did not have the opportunity to discuss the issues with the members concerned. Until now, it has been unclear how many members who actually are willing to accept a transfer to REPSOL, or how many will prefer to follow the regulations in the Working Environment Act and exercise their right of reservation.
About the right to a reservation:
If you have been selected to be part of a transfer of undertaking, but do not want this, then you may exercise the right of reservation. In practical terms, this means that you oppose the transfer of your employment to a new employer. But it also means that your working conditions are terminated in MDN at the same time as you are not transferred to REPSOL. So, basically you are without a job. However, if you have been employed by MDN for at least 12 months of the last 2 years before the date of transfer, then you have a priority for 12 months to be re-employed in MDN. Thus, you follow the seniority principle for re-employment, but there may well also be some employees in the company who have shorter company seniority. And if the company does not have any vacancy to offer, then after 12 months you no longer have a guarantee of being re-employed when/if there is a vacancy.
If you are re-employed within the 12 months, you will return to your original place in the seniority order.
Read more about transfer of undertaking and the right of reservation here: https://lovdata.no/dokument/NL/lov/2005-06-17-62/KAPITTEL_18#%C2%A716-2
About the right to choose:
In addition to the right of reservation, there is also the right to choose.
However, our Lawyer states that this may be a very risky path to take, and that there is not much case law on the subject when it comes to examples of how reduced agreements individuals has accepted.
LO has previously written this interesting article about right of reservation and right to choose:
(However, MAF does not agree with the last section on how one may miss out in the event of a future downsizing. In such situation MAF will claim that our Agreement on Company Seniority is the one that applies once you are re-employed within the deadline for re-employment)
Meetings with Industri Energi, Lawyer and REPSOL:
MAF has had several meetings with one of our Case Officers at Industri Energi and we have had meetings with one of the Central Union’s Lawyers who has special scope of field. Of course, both also had to sign declarations of professional silence. Furthermore, we have met with HR in REPSOL to try to get more clarity on what those who are transferred may expect in terms of wages and working conditions. Some of the most important issues we presented to REPSOL were questions about salary group placement, pension agreements (both for Norwegians and for expats), various supplements, no compensation for travel for foreign employees and employment security, especially regarding to whether there was a risk of future downsizing, which they could not guarantee.
REPSOL was not especially informative, but they confirmed the fact that it is correct that employees who live outside Norway do not get travel expenses covered.
Neither MAF nor Industri Energi do have any rights to negotiate with REPSOL, but we wanted more specifics from REPSOL about what they want to offer to their new employees. We did not obtain that, and in no way sufficient facts to be able to advise our members.
Here is a link to the Shelf Agreement no. 284 SAFE.
For salary table and more, there is also a special agreement between SAFE and REPSOL.
What we can read from the wage groups in the Special Agreement is that there is no guarantee that those who are transferred may retain their current salary. There are opportunities to get a higher salary, but this apparently does not depend on how many years of experience you have in the position (as with us) but more on REPSOLS assessment of the individual. We must therefore recommend that you inquire into this by yourself before deciding whether you would rather use the right of reservation. Likewise, of course, one must also consider other factors. Whether REPSOL, for example, may provide greater security of employment is also not something we may answer.
Will MDN have vacancies for those who use their right of reservation?
This is probably a question that only the company may answer the individual asking.
We have long expected that the arrival of Maersk Reacher in Norway may contribute with a large number of vacancies, but after the schedule for signing (and thus announcing the sale) has been postponed many times, and with Reacher's impending rig move to Norway, the company has already started hiring crew for Reacher. However, for the same reason throughout the process, we have asked the company to retain the size of the Competence pool to a minimum, this to maintain as many vacancies as possible, should there be many who choose the right of reservation.
What happens to the pension?
All employees will be treated equally with identical pension agreements. This means for foreigners that there no longer will be paid anything into their local pension agreements such as PFA or Scottish life. It will probably then be up to the individual employee residing abroad to contact their local pension administrator and agree with them what should happen to the individual’s savings.
REPSOL is a so-called AFP company (established private AFP early retirement pension). MDN (offshore) is not a member of this scheme.
The fact that Repsol is affiliated with AFP is of course positive, but the transfer of personnel may mean that someone must stay more years at work than they may have planned to if they must work for 7 of the last 9 years in REPSOL to be entitled to the AFP pension. Many of the elderly will probably wonder if they may claim the right to choose based on this example above and choose to stay on in MDN.
Our lawyer states that there are no verdicts showing that you may just claim the right to choose if, for example, if you are 55 years old and then must work until you are 62 years old to be able to obtain AFP. The lawyer states that experience rather says that one must approach 62 years before there is a probable certainty in being able to claim the right to choose, but still points out the lack of case law on the subject.
We consider this a major problem, and it looks even worse because REPSOL states that they have an age limit for their employees of 65 years. Our Lawyer will not deny that the argument about the age limit in REPSOL may be positive in a case concerning the right to choose. But apparently nothing is certain partly due to lack of fixed regulations in the field and partly as mentioned the lack of case law. Regardless, this is utmost important to take into consideration if you are of a certain age.
How do we assess the pros and cons when many subjects are so unclear?
We naturally expect many questions from those affected. There will be a need for many individual issues when looking at the advantages and disadvantages, especially related to wages, pension and job security, etc .. and here REPSOL must be much clearer if they want to avoid that many may choose the right of reservation and rather take the chance that MDN may offer new employment. We therefore have a high expectation that both REPSOL and MDN will provide more accurate information so that everyone concerned may have a reasonable chance to assess their own future financial situation before the deadline for the right of reservation expires.