In June this year, changes were made to three pieces of Norwegian legislation in order to implement the European Agency Workers Directive and offer enhanced rights for agency workers. Most of the changes will take effect 1 January 2013.
The primary aim of the Directive is to ensure that individuals engaged through employment agencies to undertake work for hirers receive equal wages and working conditions to employees of the hirer. As a minimum, this requires equal salary and benefits, working hours, overtime work, breaks and rest periods, night work, along with holiday and holiday pay. Agency workers must also have the same access to collective benefits and services as those employed directly by the hirer.
However, the changes in the Norwegian legislation go beyond what the Directive requires. The Directive permits Member States to achieve agency worker protection through collective agreement. However, where no such binding general provisions exist, the Norwegian legislative changes state that one must perform; "a more hypothetical assessment of what the hirer most likely would have offered" had the agency worker been recruited by the hirer. I our view, this statement is likely to lead to uncertainty and legal argument over its interpretation.
Norway has also committed to a "package of measures", with further regulations which will require hirers and agencies to disclose pay levels, so that agency workers can satisfy themselves as to equal treatment and agencies and hirers are also clear on what the agency worker is receiving. Employee representatives will also be entitled to information regarding wages and working conditions as between the employment agency and the hired employee.
Finally, there is to be an obligation upon hirers to undertake annual consultations with their employee representatives regarding the use of hired employees and their equal treatment. More controversially, agency workers will be able to claim any shortfall in pay or benefits directly from the hirer if the employment agency fails to comply with the equal treatment provisions.
These new provisions are likely to bring out about considerable change and have great practical significance.