by Kristin S. Hjort
Last Christmas, we sent out a newsletter regarding new preparatory work which indicated possible future changes in Norwegian employment law (see previous newsletter regarding NOU 2019:9). Friday 18 November, the Ministry of Labour and Social Inclusion presented Prop. 14 L (2022-2023), a proposition which follows up on, and to a large extent confirms, that changes may be expected. The proposition proposes several important changes to the Working Environment Act, including the following:
Needless to say, the definitions in the Working Environment Act have a great impact on the act as a whole. In the proposition, a more detailed definition of the employee-term is proposed. The aim is to clarify the legal position of workers, and to reduce the uncertainty that may some time arise, particularly regarding whether a worker is indeed an "employee" with employee protection rights, or rather a "consultant", "independent contractor" or similar, without such rights. It is suggested to specify certain factors directly in the act that must be taken into account when determining to which category a worker belongs. The factors that may be included in the act, are (i) that the employee makes his/her workforce available for the employer on a continuous basis, (ii) that the employee's duty to work is of a personal character and (iii) that the employee is subject to the employer's management and control.
It is also suggested that going forward, it shall be a presumption for a worker to fall within the "employee" category, unless the employer can document that the worker is merely in a contractual relationship as a consultant/similar. If the suggested adjustment is approved, such a presumption implies that the contrary must be proven with a preponderance of the evidence (meaning that it is more likely than the opposite, i.e. by more than 50%).
As for the definition of "employer", only smaller more editorial changes are suggested at this point, such as a reference to the "employee" definition.
It is proposed in the proposition that some of an employer's duties shall be applicable on a group-level. This includes amongst others that the duty to offer "other suitable work" in case of redundancy, an obligation that currently only applies at a company level, shall be extended to also be an obligation at a group level. Moreover, the preferential right for redundant employees to a new appointment in the company shall also apply for other companies in the group as well. Exceptions may be made to the above-mentioned obligations if it may be objectively justified, for instance due to the various sectors in the group, geographic differences etc.
Important to note with regards of the above, is that this will affect what kind of information an employer must state in a dismissal for it to be valid. In close future, it may be necessary to specifically mention what other companies exist within the group, and to state that the preferential right to a new appointment applies also at a group level.
Another proposal mentioned in Prop. 14 L, is to establish rules regarding cooperation, information and consultation at a group level where the enterprise has at least 50 employees on a general basis. Obligations linked to consultation and information at a company level will thus be extended to group level.
It is proposed in Prop. 14 L to lower the current threshold for when a working environment committee (Nw: "arbeidsmiljøutvalg") must be established. Today, the threshold is 50 employees, whereas the threshold is suggested to be only 30 employees in the future. It is also suggested that a working environment committee may be required in company with 10 employees. As for safety delegates (Nw: "verneombud"), the threshold for when this is mandatory, may be lowered from 10 to 5 employees. The tasks of the safety delegates shall also be extended to encompass workers such as hired employees and independent contractors.
Another proposal concerns the obligation to consult with the employee representatives. Going forward, this obligation may be extended to the situations where independent contractors will be used, as well as in the situations when services from other companies will be purchased if such a purchase may have an impact on the staffing. The obligation to consult is also suggested to be extended to those situations where one of the parties requires it.
Employees with a temporary contract currently have a right to a permanent position after three or four years, depending on the basis for the employment being temporary. Going forward, it is suggested that this right shall be linked to a three-year limit in all cases, regardless of the basis for the temporary contract.
As follows from above, rather important changes may be expected in near future. As for now, a hearing in the Employment and social committee is planned for 4 January 2023, and the deadline for the committee to render its recommendations is set for 14 February 2023. The estimated time for the proposition to be handled in Stortinget is 21 February 2023. Schjødt will follow up on this matter and revert with an updated newsletter once there is progress to be reported on. Should you have any questions related to the above in the meantime, do not hesitate to reach out to us.