Administrative appointments - rules and exceptions
Just before the summer kicked in, the Supreme Court handed down a judgment on so-called administrative appointments - i.e., appointments in the state where you can make exceptions to the strict rules in the State Employee Act. What happens when the employer and employee do not agree on how extensive the exemption from the law should be?
Employment in the state is carefully regulated by law, and there are strict requirements for the procedure when someone is to be employed. This makes the hiring process cumbersome and resource-intensive for the employer, which can be impractical if the need for labor is short-term. The law therefore makes exceptions to the strict rules for so-called short-term administrative appointments. It also allows for the exception to be made more extensive if it is specified in the personnel regulations.
The personnel regulations are internal business regulations that are determined by agreement between the business and the civil service organisations. But can the employee side block the employer's wish for a provision in the personnel regulations that expands access to administrative employment? The Supreme Court took a position on this in a judgment handed down just before the summer in a case between the Norwegian Police Union and the state (HR-2022-1246-A).
The procedure for employment in the state
While private employers are more or less free to decide the procedure for employment and who they want to employ, the procedure for employment in the state is strictly regulated by law. The State Employee Act stipulates that vacant positions and offices must, as a general rule, be advertised publicly and that the employment decision must be taken by a selection committee on the basis of a reasoned recommendation. The Act also establishes the so-called qualification principle, which means that the employer has a duty to employ the best qualified applicant.
However, the State Employees Act makes exceptions to the strict hiring procedure in the case of temporary appointments for up to six months - so-called administrative appointments. The exception rule determines that the qualification principle, as well as the rules on public announcements, nominations, and selection committee, then do not apply. The employer can, for example, not hire the best qualified applicant, but rather hire an applicant who is familiar with the business from before or who can join quickly. The exception rule gives public employers a practically important access to cover short-term labor needs in a quick and simple way.
According to the law, the exception for administrative appointments can also be extended to apply to temporary appointments for up to one year if it is stipulated in the personnel regulations.
The Supreme Court judgment
The question before the Supreme Court was whether the right to extend the exemption for up to one year provided that the employer and employee agreed. The employees' side - the Police Union - pointed out that the personnel regulations must be determined through an agreement and stated that it entailed a requirement for agreement between the employers' and employees' side. In practice, this would mean that the employee side had veto rights and could block the employer's desire for more flexibility in the case of short-term employment beyond six months.
The employer - the State represented by the Ministry of Justice and Public Security - for its part stated that disagreements regarding the determination of personnel regulations should be resolved through the rules on dispute resolution in the Main Agreement. The dispute resolution rules in the Main Agreement describe a procedure where mediation must be carried out if the parties cannot reach an agreement through negotiations. If mediation does not lead to success either, the question is decided by a tribunal made up of parties with a neutral leader.
The Supreme Court took as its starting point the wording of the State Employees Act § 7, second paragraph, that an extended exception to the employment rules "can" be made "in personnel regulations". According to the Supreme Court, the wording makes it clear that the extended exemption cannot be determined by the employer alone but presupposes co-determination on the part of the employee.
The Supreme Court then referred to the provision that the personnel regulations must be determined by "agreement" (State Employees Act, Section 2, second paragraph), and that this, in isolation, could mean that both parties had to agree. However, after a review of the legal history and policy considerations, the Supreme Court found that Section 7 of the State Employees Act, second paragraph, cannot be interpreted in such a way that it gives the employee a right of veto.
When the parties disagree as to whether an exception should be made to the employment rules for employment beyond six months, the issue must therefore be decided according to the dispute resolution system in the Main Agreement - i.e., through mediation and tribunal proceedings. At the same time, the Supreme Court emphasizes that the tribunal must take as its starting point the main rule of the law that the exception from the employment rules only applies to employment for up to six months.
If the employer wants an exception for administrative appointments of longer duration, the tribunal must - after also hearing the employee's arguments - assess whether the employer's justification for the wish for an extended exception is sufficiently weighty.
