Definition of posted worker
Background
New working conditions introduced from January 2022
What working conditions will not apply to posted workers?
Increased documentation requirements
As of January 2022, most of the provisions of the Norwegian Working Environment Act apply when a foreign company sends one of its employees to work in Norway for more than 12 months. These changes implement EU rules. This article provides an overview of this legislation and covers several key questions.
When a foreign company sends its employees to work in Norway temporarily, the workers are called "posted workers". The posted worker might, for example, work for a customer in Norway or for the Norwegian branch of a group. Another example of a posted worker is an employee from a foreign temp agency sent to work in Norway.
Norway has a specific regulation that enforces parts of the Norwegian employment legislation during the period that the posted worker works in Norway. The regulation implements relevant EU rules. The aim is to ensure that, during the period that the foreign worker works in Norway, their working conditions are at the same as Norwegian employees. Provisions of the Norwegian Working Environment Act relating to the following areas apply when the posted worker works in Norway:
- the requirement for a safe and secure working environment;
- working time;
- work by children and youth;
- parental leave;
- protection against discrimination;
- content requirement of the written employment contract; and
- hiring workers from staffing agencies and other companies.
The Holiday Act and the parts of the Equality and Anti-discrimination Act concerning discrimination, harassment and retaliation in employment also apply. In certain sectors, some of the provisions from collective bargaining agreements (eg, concerning wages) apply to all companies within the sector, regardless of whether they are bound by a collective bargaining agreement. Such provisions also apply to posted workers while they work in Norway.
New working conditions introduced from January 2022
The changes enforced from January 2022 entail the application of further provisions from the Norwegian Working Environment Act for posted workers. The changes provide posted workers with the same rights and protection as Norwegian employees, including in relation to:
- whistle-blowing and protection against retaliation;
- the Working Environment Committee;
- information and consultation where the company has more than 50 employees;
- limitation on the company's possible control measures (eg, access to the employee's email, camera surveillance and medical examinations);
- leaves of absences other than parental leave eg, to care for close relatives, military service or education);
- staff rules;
- non-solicitation of colleagues; and
- transfer of undertakings.
These additional provisions do not apply if the employee works in Norway for fewer than 12 months. In such a case, only the former provisions apply. The former provisions also apply if the assignment is initially set to last for fewer than 12 months but is later extended to up to 18 months. The foreign company must notify Norwegian Labour Inspection Authority about the extension.
What working conditions will not apply to posted workers?
Despite the changes from January 2022, certain parts of the Norwegian Working Environment Act still will not apply, regardless of the period of the posting to Norway. These exemptions include:
- the requirement for an internal whistle-blowing procedure;
- non-compete and non-solicitation of customer requirements;
- provisions concerning part-time employment;
- provisions concerning temporary employment; and
- provisions concerning termination with and without notice, except for the protection of employment for pregnant employees and employees on parental leave.
Furthermore, a posted worker in Norway will not trigger an obligation for the foreign company to have a collective occupational pension scheme for its posted workers in Norway.
Increased documentation requirements
Today, employers must provide posted workers with an employment agreement, an overview of working hours and pay slips. As of January 2022, the foreign companies must also be able to document the expected duration of the work in Norway, the planned start and end date, the expected number of posted workers and their identity.
The changes also introduced a new provision that allocates the responsibility for the hired temp's working conditions when the temp is sent to work outside of Norway. If a Norwegian company hires a temp from a (Norwegian or foreign) temp agency, and sends that person to work temporarily in another country (ie, other than Norway), the temp agency is the one responsible for ensuring that the working conditions for the hired temp comply with the legislation in the specified country.
For further information on this topic please contact Ole Kristian Olsby or Lise Gran 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.