Do part-time employees have preferential rights to available shifts during the holidays?

Not all workplaces can turn off the lights and lock the doors when the rest of society goes on holiday. Among other things, in industry, the health sector and the food trade, it is common to engage external labour to cover vacant shifts during holiday periods. Changes to the rules on part-time employees' preferential rights affect how the employer can allocate such shifts.

From 1 January 2023, new rules on preferential rights for part-time employees apply. In addition to preferential rights to advertised positions, part-time employees now also have preferential rights to "extra shifts and the like". This now follows from the Working Environment Act § 14-3 second paragraph. The preferential right also applies to temporary employees.

If the employer has a need for labour for vacant shifts, then part-time employees in the business thus have preferential rights to these shifts. Before the business uses external labour, it must therefore offer the available extra shifts to the part-time employees. This will also apply to the shifts that summer substitutes normally cover. If the need for labour cannot be met through the company's own employees, the company can employ external labour.

The preferential right for part-time employees does not apply if the employer intends to cover the labour requirement by using employees who are already employed in the business. This means that a part-time employee does not have preferential rights to general additional work carried out by the company's own employees.

When can a part-time employee claim to be assigned a shift in accordance with the preferential right?

There are several conditions that must be met before a part-time employee can exercise his preferential right to extra shifts and the like. The part-time employee must be qualified for the work for which the employer needs labour. A healthcare worker, for example, will not be qualified if the tasks the business needs labour for are nursing tasks.

The preferential right for part-time employees also only applies if the unmet need for labour involves approximately the same tasks as the part-time employees have in their regular position.

Furthermore, there is still a requirement that the exercise of the preferential right will not involve significant disadvantages for the business. The need for an extra shift can, for example, arise at such short notice that it becomes impossible or very difficult for the employer to fill the need through the use of its own part-time employees. Exercising the preferential right could then be of significant disadvantage to the business.

Furthermore, the preferential right does not give part-time employees the right to work that would involve a breach of the Working Environment Act, for example by the part-time employee being offered shifts that would be in breach of rules on rest time and Sunday work. A part-time employee also does not have a preferential right to overtime work. Nor is it a requirement that the employer must change the work schedule of the part-time employee so that the person concerned can exercise preferential rights to a vacant shift.

In this context, we would like to remind you that part-time employees also have preferential rights to part of the advertised position, cf. the Working Environment Act § 14-3, first paragraph, second sentence. One can imagine that an employer needs a summer substitute in a 100% position and that a part-time employee applies the preferential right to 60% of this 100% position.

In the preparatory works for the Working Environment Act (Prop. 57 L (2017-2018) p. 41), it is specified that if the exercise of the preferential right results in the employer being left with a remaining position for which it may be difficult to recruit qualified applicants, then this can entail a significant disadvantage for the business.

The preferential right of part-time employees applies as a general rule throughout the business, but ...

As a general rule, the preferential right to extra shifts and the like applies throughout the business. The employer may nevertheless, after discussions with employee representatives, limit the scope for exercising the preferential right to one or more units with a total of at least 30 employees. One can then, for example, limit the preferential right to apply to a limited department in the business.

If no agreement is reached with the employee representatives in the discussions, it is the employer who takes the final decision on such a delimitation. In this way, it will be easier for the employer to ensure that the relevant part-time employees are informed about vacant shifts and that they can register for the extra shifts if they wish.

If the business wishes to further limit the scope of the exercise of the preferential right, this must be done through an agreement with the employee representatives.

Does your business still need external labour? Remember this:

If the business, after offering extra shifts to part-time employees, considers that there is a need for external temporary workers, it is possible to advertise for external labour. In this context, it is important to be aware of the following requirements that appear in the Working Environment Act § 14-1 b second paragraph:

• The employer must document the need for part-time employment in writing
• The documentation must be available to the employee representatives
• The issue of part-time employment must be discussed with the employee representatives

We hope that you, after reading this article, are better equipped to tackle staffing planning and handling extra shifts. If you are unsure how the new rules on part-time employees' preferential rights affect your company, please feel free to contact us.