Introduction
Background
Facts
Decision
Comment
Just before the summer began, the Supreme Court passed a judgment on administrative appointments, or appointments by the state where exceptions can be made to the strict rules in the State Employee Act. What happens when the employer and employee disagree on how extensive the exemption from the law should be?
Employment by the state is carefully regulated by law, and there are strict requirements for employment procedures. This makes the hiring process cumbersome and resource-intensive for the employer, which can be impractical if the need for labour is short-term. The law therefore makes exceptions to the strict rules for short-term administrative appointments. It also allows for a more extensive exception to be made if it is specified in the personnel regulations.
The personnel regulations are internal business regulations that are determined by agreement between the business and the civil service organisations. This begs the question of whether the employee can block the employer's wish for a provision in the personnel regulations that expands access to administrative employment. The Supreme Court took a position on this in a recent case between the Norwegian Police Union and the state.(1)
While private employers are more or less free to decide the procedure for employment and who they want to employ, the procedure for employment by the state is strictly regulated by law. The State Employee Act stipulates that vacant positions and offices must, generally, be advertised publicly and that the employment decision must be taken by a selection committee on the basis of a reasoned recommendation. The Act also establishes the so-called "qualification principle", meaning the employer has a duty to employ the best qualified applicant.
However, the State Employees Act makes exceptions to the strict hiring procedure in the case of temporary appointments for up to six months – known as "administrative appointments". This exception means that the qualification principle, as well as the rules on public announcements, nominations, and selection committee, do not apply. The employer can, for example, choose not to hire the best-qualified applicant, but rather to hire an applicant who is familiar with the business from before or who can join quickly. The exception rule gives public employers important access to cover short-term labour needs in a quick and simple way.
According to the law, the exception for administrative appointments can also be extended to apply to temporary appointments for up to one year if it is stipulated in the personnel regulations.
The question before the Supreme Court was whether the right to extend the exemption for up to one year would be granted, provided that the employer and employee agreed. The employees' side – the Police Union – pointed out that the personnel regulations must be determined through an agreement and stated that it entailed a requirement for agreement between the employers' and employees' side. In practice, this would mean that the employee side had veto rights and could block the employer's desire for more flexibility in the case of short-term employment beyond six months.
The employer – the state represented by the Ministry of Justice and Public Security – for its part stated that disagreements regarding the determination of personnel regulations should be resolved through the rules on dispute resolution in the main agreement. The dispute resolution rules in the main agreement describe a procedure where mediation must be carried out if the parties cannot reach an agreement through negotiations. If mediation succeed either, the question is decided by a tribunal made up of parties with a neutral leader.
The Supreme Court took as its starting point the wording of section 7(2) of the State Employees Act that an extended exception to the employment rules "can" be made "in personnel regulations". According to the Supreme Court, the wording makes it clear that the extended exemption cannot be determined by the employer alone but presupposes co-determination on the part of the employee.
The Supreme Court then referred to the provision that the personnel regulations must be determined by "agreement" (section 2(2) of the State Employees Act), and that this, in isolation, could mean that both parties had to agree. However, after a review of the legal history and policy considerations, the Supreme Court found that section 7(2) of the State Employees Act cannot be interpreted in such a way that it gives the employee a right of veto.
When the parties disagree as to whether an exception should be made to the employment rules for employment beyond six months, the issue must therefore be decided according to the dispute resolution system in the main agreement – that is, through mediation and tribunal proceedings. At the same time, the Supreme Court emphasises that the tribunal must take as its starting point the main rule of the law that the exception from the employment rules only applies to employment for up to six months.
If the employer wants an exception for administrative appointments of longer duration, the tribunal must – after also hearing the employee's arguments – assess whether the employer's justification for the wish for an extended exception has sufficient weight.
For further information on this topic please contact Mari Vindedal at Homble Olsby | Littler by telephone (+47 23 89 75 70) or email ([email protected]). The Homble Olsby | Littler website can be accessed at www.homble-olsby.no.
Endnotes