Amendments to the Norwegian Working Environment Act in force from 1 January 2019
The Norwegian Parliament approved several amendments to the Norwegian Working Environment Act (WEA) this summer regarding permanent and temporary employment and hiring from manpower agencies. The amendments will enter into force on 1 January 2019. The legislative amendments are directed towards the manpower industry and the challenges associated with hire of labour, and the negative consequences of this.
1 The term permanent employment will be defined in the WEA
The main rule in Norwegian employment law is that employees shall be appointed permanently. However, the WEA has not had a definition of the term “permanent employment”. After 1 January 2019, the term will be defined in section 14-9 of the WEA. The amendment is a reaction to the increased use of permanent employments without guarantee salary (employment without entitlement to pay when the employee is not in on duty), especially in the manpower industry. Such appointments will no longer be legal after the amendment.
The new definition reads:
Permanent employment means that the employment is continuous and not limited in time, that the legal rules on termination of employment shall apply, and that an employee is ensured predictability in his/her work in the form of an actual scope of work.
Thus, the appointment cannot have a fixed termination time/ date in order to be permanent. For example, the condition is not fulfilled if the employment is linked to the completion of a particular job. Furthermore, the employee must have employment protection under the WEA, which means that the rules regarding termination of employment in chapter 15 of the WEA apply.
Employees must also have predictability for the scope of work. The definition does not contain a minimum requirement for the scope of work – the essential is that the employer and the employee must agree to which extent the employee shall perform work, meaning that he/she is given predictability for the workload and hence the income.
If the work shall be performed periodically, it must be stated in the employment contract when the work is to be performed, or it shall be possible to calculate when the work is to be performed. This specification will be incorporated in section 14-6 (1) letter j of the WEA.
2 Employees get an extended right to claim permanent employment
Under the current rules, employees who have been continuously employed in a temporary position on the basis of temporary replacement for another person, or the general rule regarding temporary appointments, may claim permanent employment after three years. Employees who have been temporarily employed based on the rule regarding work of temporary nature may claim permanent employment after four years.
After 1 January 2019, an employee who has been continuously temporary employed based on a combination of the abovementioned alternatives will be entitled to permanent employment after three years, meaning that the rules regarding termination of employment in the WEA apply. The amendment entails that an employee who have been temporarily employed to perform work for another person for two years, and subsequently employed in a position where the work is of a temporary nature for one year, will be entitled to permanent employment after three years.
The amendment extends the possibility for employees to claim permanent employment. The rule will probably be of particular importance for hire of workers from manpower agencies, as it is common to hire in workers on different legal grounds from such agencies.
3 The access to hire employees from manpower agencies will be limited
Under the current rules, hiring of employees from manpower agencies is permitted to the extent that temporary appointment of employees may be agreed. Undertakings bound by a collective agreement may enter into a written agreement concerning hire of employees for limited periods notwithstanding the provisions regarding temporary appointment.
This possibility will be limited after 1 January 2019. After the amendment, only trade unions with nomination rights may enter into such agreements. This will impose stricter requirements on which companies that may enter into such agreements, and it will no longer be possible to enter into so-called in-house collective agreements regarding hire of employees.
For companies which already have entered into agreements concerning hire of employees, a six months transition period will apply from 1 January 2019.
4 Amendments to part time employees’ preferential rights – employees may exercise preferential rights to a part of a position
In HR-2016-867-A, the Norwegian Supreme Court found that the rules regarding preferential rights of part time employees in the WEA do not allow part time employees to exercise preferential rights to a part of a position. This will be reversed from 1 January 2019, after which the preferential right will also apply to a part of a position.
This entails that a part-time employee in a 75 percent position can get a full-time position by exercising the preferential right to half of a 50 percent position that the company announces.
The preferential right is subject to the employee being qualified for the post and exercise of the preferential right not involving significant inconvenience for the undertaking. Exercise of the preferential right will normally cause a significant disadvantage if the employer is left with an inconvenient position, which will be difficult to recruit employees to.
Disputes concerning preferential rights of part-time employees are resolved by the Dispute Resolution Board. From the new year, the decisions of the Dispute Resolution Board shall act as enforceable judgments if the case is not brought before the courts within the time limit.
