by Sandra Nilsson and Sara K. Råum
The purpose of the Directive is to improve working conditions by promoting more transparent and predictable employment while ensuring labour market adaptability. The background for the Directive was uncertainty and unpredictability due to new types of employment. The Directive includes minimum rights that shall apply in relation to all employees in the EU. Inter alia, the Directive sets out an obligation for employers to provide certain information to employees regarding the employment relationship and terms of employment. Furthermore, the Directive sets out that an employer shall not prohibit an employee from taking up employment with other employers.
The Directive was implemented in Sweden through amendments to the Swedish Employment Protection Act ("EPA") which entered into force on 29 June 2022.
The amendments include an extended obligation for employers to provide information to employees. Amongst other, employers shall inform employees regarding the applicable terms for overtime work, overtime compensation and minimum notice for providing information regarding scheduling of working hours. The employer shall also inform employees of which specific provisions that shall be followed when terminating an employment relationship. Furthermore, the employer shall inform about an employee's right to education. Lastly, the employer shall inform employees that social security contributions (Sw. arbetsgivaravgifter) are paid to the state.
Previously, employees who have a managerial or comparable position (e.g. a CEO) has been exempted from the application of the entire EPA. After the implementation of the Directive, a CEO is no longer exempted from the EPA in its entirety, and the provisions on e.g. the obligation to provide information also applies for a CEO.
The amendments to the EPA also include a new prohibition stating that, as a main rule, an employer may not prohibit an employee from taking up employment with another employer during the employment. However, there is an exception stating that the prohibition will not apply if the other employment is disruptive to the employee's work, is competitive in a way that may cause damage, or in any other way may harm the employer's business.
Lastly, an obligation for the employer to submit a written response if the employee requests a different form of employment at a certain time or requests a higher employment rate, has been included.
The Directive is not incorporated in the EEA agreement yet, but it is under scrutiny for incorporation. The Ministry of Labour and Social Inclusion submitted their proposal 29 June 2022 for consultation, with a deadline 10 October 2022, and stated that they assume it is EEA-relevant. Further, the Ministry specified that they intend to put forward a separate proposal for the Norwegian Parliament when the matter has been processed in the EEA committee. A summary of some of the proposed changes to the Norwegian Working Environment Act ("WEA") follows below.
The proposal imposes an obligation for the employer to provide information to the employees. Some of the elements are already covered in the WEA Section 14-6. However, the Ministry have proposed several amendments, including information on absence paid by the employer, how to proceed to terminate the employment relationship and information on the different components that the salary consists of.
Further, the Ministry proposes a duty for the employer have a written employment contract in place seven days after the employee's commencement, which constitutes a reduction from today's limit on one month after commencement, cf. the WEA Section 14-5 (2).
The Ministry proposed a specification of the probationary period for temporary appointments, in that it must be in a reasonable proportion to the nature and expected duration of the employment. In addition, it is specified that it is not possible to agree on a new probationary period in case of a renewal of the contract, or if a new temporary contract of the same character is entered into.
Further, a right to request more predictable and secure working conditions for temporary employees or part-time employees who have been working for more than six months is proposed. It is suggested that the employer must give a written reply within six months after the request was received.
To implement the Directive's rules on enforcement, the Ministry proposes to legislate a presumption for permanent employment, which is an enactment of current law. It shall apply if the employer has not stated that the employment is temporary in the employment contract. Another presumption is proposed for working hours; if information on working hours is not described in the employment agreement, it is a presumption that the employee's claim about the scope of the position shall be relied on, unless the employer proves otherwise.