New year predictions
Battle against staffing companies
Stronger position for hired workers
Full-time rather than part-time
Home office regulations
Will more people become employees in future?
Pension from first krone and important reform proposals
News from Supreme Court
In 2023, it will be important to follow developments closely and make the necessary adjustments in business. After an active year in employment law, there are a number of legislative and regulatory changes that will come into force and that must be implemented in daily operations. And the activity is unlikely to stop here; new proposals from the government have been consulted on, and more are likely in the pipeline. In addition, the Supreme Court has dealt with several important cases in 2022, and new ones are already scheduled for 2023.
Battle against staffing companies
One of the most debated topics in 2022 has been the rules on hiring from staffing companies. The government has a stated ambition to limit the staffing industry's scope and role in Norwegian working life, and has followed up this ambition with a number of changes to laws and regulations (for further details, see "Government proposes stricter hiring rules and strengthening right to full-time employment").
After the changes, it will no longer be possible to hire personnel from staffing companies for temporary work such as seasonal work and extra work at production peaks. Businesses that use staffing companies to hire staff for such work must therefore prepare to obtain personnel in another way, for example by hiring directly in a temporary position or using independent contractors.
However, businesses that are bound by a collective agreement entered into by one of the large trade unions will still be allowed to hire for a time-limited period if it is agreed in writing with the local employee representatives.
Not all groups are equally affected by the changes. For healthcare personnel and consultants with special expertise, an exception will apply, which means that employers can still hire personnel for work of a temporary nature (for further details, see "Further hiring access for healthcare personnel and consultants"). At the other end of the scale, there are construction sites in Oslo and Viken, where there most likely will be a regulatory total ban on hiring to carry out construction and construction work. The final proposals will be adopted before Christmas and will come into force on 1 April 2023, with three-month transitional arrangements for concluded contracts. This means that the changes will apply in full as of 1 July 2023.
Stronger position for hired workers
In addition to these austerities, several changes have been adopted to improve the position of hired personnel. Hired workers will be entitled to permanent employment after three years, including when hired on the basis of an agreement with employee representatives.
There will also be a statutory definition of hiring, which should clarify the boundary between hiring and contracting. This is to ensure that hired workers are not "misclassified" as independent contractors. Furthermore, there will be an approval scheme for staffing companies, with more documentation requirements and stricter sanctions for breaking the rules. These changes will also come into force from 1 April 2023.
A rule that has already entered into force is the collective right of action, which was reintroduced from 1 July 2022. The rule means that a trade union can bring a lawsuit in its own name (without the hired party being made a party) if it believes there is illegal hiring from staffing company. Furthermore, the government has announced that there may be a collective right of action in several types of cases in the future, such as violations of the principle of equal treatment in hiring and illegal temporary employment (for further details, see "Government cracks down on social dumping and work-related crime").
Full-time rather than part-time
Along with changes to the hiring rules, there were also legislative proposals to limit part-time work and strengthen the right to 100% employment (for further details, see "Government proposes stricter hiring rules and strengthening right to full-time employment"). The changes have been adopted by Parliament, and will come into force on 1 March 2023. From this date, a general rule will apply that employees must be employed in a full-time position.
If employees are to be employed in a part-time position, the employer must be able to document the need for part-time work and discuss it with employee representatives in advance. In addition, it has been decided that part-time employees' preferential rights will be extended. This means that part-time employees must be able to extend their position, rather than the employer hiring labour or posting extra shifts.
Even though the covid-19 pandemic is over, many employees still work from home offices. In order to adapt the regulations to this, changes have been adopted to the home office regulations, which have applied since 1 July 2022 (for further details, see "New rules for working from home"). There is still a requirement for a written agreement for regular use of a home office, while the employer has been given greater responsibility for the working environment in the home office. The employer must also ensure that the working time rules are followed and be able to document the follow-up of employees at home offices if there is an inspection from the Norwegian Labor Inspection Authority.
Will more people become employees in future?
The term "employee" has received a lot of attention in the past year, both in the European Union and here in Norway. In November, the government followed up the Fougner Committee's recommendation with a proposal to clarify the term employee in the Working Environment Act (for further details, see "New proposal to strengthen position of employees: how should businesses deal with the changes?"). The definition itself is not to be changed, but a presumption rule has been proposed for the person to be an employee and not a contractor, with the rights it entails. The proposal is being considered by the Labor and Social Affairs Committee in Parliament and will probably be followed up during Winter 2023.
At the same time, the EU Directive on Transparent and Predictable Working Conditions has been consulted on for implementation in Norwegian law (for further details, see "Digital platform workers and freelancers in Norway may gain employee status under new EU directive"). The directive is particularly aimed at employees with an atypical connection to working life, such as digital platform workers and freelancers, and contains a presumption rule for permanent employment. The directive also contains rules on the right to request a transition to more permanent work and the right to have several parallel positions as an employee. It is unclear how the rules in the directive stand in relation to the proposal to clarify the concept of "employee" in Norwegian law, and here difficult issues can arise for different types of work that do not follow the usual template.
Pension from first krone and important reform proposals
In the area of pensions, the year started with a bang, when changes to the Act on Compulsory Occupational Pensions came into force on 1 January 2022. The rules mean that all private occupational pension schemes must now save at least 2% of their members' income from the first krone, or payment, and regardless of employment percentage.
Nearly half a year later, the Pensions Committee's recommendation was sent for consultation, with proposals for, among other things, an increased age limit for drawing an old-age pension, that the minimum pension should follow the general development of prosperity and that receivers of disability benefits should be ensured a reasonable old-age pension (for further details see "Pension committee proposes changes to current pension system"). The proposals have great political interest and will spark debate in the future.
In November, a proposal for a new contractual pension (AFP) in the public sector was released, following the pattern of the scheme that applies in the private sector. According to the proposal, the scheme will apply to cohorts born in 1963 and later and make AFP a lifelong supplement to retirement pension with flexible withdrawal. Whether the reform proposals are followed up in 2023 remains to be seen.
Probationary periods, sick leave and temporary employment
There has also been a high level of activity in the area of employment law in the Supreme Court. The year started with a ruling from the appeal committee that new employees' probationary period must be calculated from date to date. This means, for example, that a six-month trial period that starts on 1 January will run to and include 1 July.
In February, the so-called "Widerøe" judgment was passed, where the Supreme Court clarified that the employer's obligation to facilitate sick leave does not extend so far that one has an obligation to split a full-time position into two part-time positions (for further details, see "Dismissed on sick leave: Supreme Court rules on employer's duty to facilitate").
In the course of the year, a judgment was also issued which lays down the procedure if the employer and employee do not agree on how extensive an exception should be made to the qualification principle in the case of so-called "administrative appointments" with state employers (for further details, see "Supreme Court clarifies rules and exceptions concerning administrative appointments"). Furthermore, it has been clarified that unqualified teaching staff who are employed temporarily due to a lack of qualified applicants are not entitled to a permanent position after three years (for further details, see "Supreme Court judgment over entitlement of substitute teachers"). Finally, the Supreme Court determined that those on sick leave are still entitled to sick pay under the Ship Labour Act, even if the person in question has been temporarily laid off (for further details, see "Supreme Court passes decision on employer payment obligation").
For further information on this topic please contact Ole Kristian Olsby or Mari Vindedal at Homble Olsby | Littler by telephone (+47 23 89 75 70) or email ([email protected] or [email protected]). The Homble Olsby | Littler website can be accessed at www.homble-olsby.no.