Priority Right Over Hiring

Part-time employees have a priority right to an extended position over new hiring by the employer according to § 14-3 first paragraph of the Working Environment Act. It has been assumed that new hires include temporary positions, but that hiring from external sources falls outside this scope. Following the legal amendment, the priority right now covers not only new hires but also new external hiring in the enterprise. Enterprises considering using external hiring should first assess whether their own part-time employees could fill the position instead.

The same limitations as before are still applicable. The priority right is conditional on the part-time employee being qualified for the position and that exercising the priority right will not entail significant inconvenience for the enterprise. The priority right also only applies to positions that involve roughly the same tasks that the part-time employee already performs.

Priority Right to Extra Shifts

The priority right according to § 14-3 first paragraph of the Working Environment Act applies to “extended positions” and normally covers more or less permanent or at least long-term changes in position. According to established practice by the Dispute Resolution Board, it has been assumed that short-term and sporadic work such as extra shifts fell outside the scope of the priority right.

In the new second paragraph of § 14-3, it is now stated that part-time employees also have a priority right to “extra shifts and similar” over the employer hiring or renting external labor for this work. The word “similar” is included to clarify that it does not matter whether the work is designated as an extra shift or not. The central aspect is the real content of the work. The term “extra shifts and similar” will cover short-term and sporadic needs for additional work, e.g., shifts during vacation coverage or illness, or in connection with work peaks and seasonal fluctuations.

The provision only applies where the employer uses external labor for hiring, typically by using on-call substitutes or standby shifts, or through external hiring. Ordinary overtime performed by the enterprise’s own employees falls outside this scope.

Unlike the priority right under § 14-3 first paragraph, even temporarily part-time employees have a priority right to extra shifts under the second paragraph.

Also under the second paragraph, the right of priority is conditional on the part-time employee being qualified for the additional work and that it involves an extra shift with roughly the same job duties as those the part-time employee already performs.

The exercise of the right of priority is, as otherwise, conditional on it not causing significant inconvenience to the business. In the preparatory works, the department opens up for the possibility that the assessment of inconvenience may vary according to the first and second paragraphs. The need for an extra shift may arise on such short notice that it becomes impossible or very difficult for the employer to meet the need through the use of their own part-time employees.

It is also specified that the right of priority presupposes that the additional work can legally be combined with the employee’s other work. For example, if an extra shift would cause the employer to break the rules on rest periods and Sunday work, the employee does not have the right of priority for the extra work. The right of priority also does not give the right to be offered extra shifts that involve overtime work.

Furthermore, the right of priority for extra shifts and similar can be limited to “units” within the enterprise. By “unit”, real and organizationally defined units are meant. Limitation means that each area or unit is considered separately when it comes to offering extra shifts.

The law allows for limiting the scope to units that employ at least 30 employees as long as the limitation has been discussed with the union representatives. Limitations in smaller units than 30 employees or limitations in other ways can be implemented by agreement with the union representatives.

Unlike the right of priority under § 14-3 first paragraph, the Dispute Resolution Board does not have the competence to assess breaches of the new right of priority rule under the second paragraph.

The employee may, depending on the circumstances, file a lawsuit for breaches of the right of priority, cf. the Working Environment Act § 14-4. The practicality of lawsuits for breaches of this provision can be questioned. Firstly, there will rarely be a position to demand employment in, as it is presumably only about isolated and short-term work. The size of any compensation claims will also in most cases be relatively limited. However, exceptions may be considered where there are repeated breaches over a longer period.

New Procedural Rules for Part-Time Employment

From the turn of the year, a new provision has been introduced in § 14-1 b of the Working Environment Act. According to the wording, it follows:

(1) An employee should, as a general rule, be employed full-time.

(2) Before the employer makes a decision on part-time employment, the employer must document the need for part-time employment in writing. The documentation must be available to union representatives, and the issue of part-time employment must be discussed with the union representatives.

The wording of the first paragraph may, in isolation, suggest a limitation on the ability to employ part-time. However, this is not the intention. In the preparatory works, it is emphasized that the provision only indicates a norm about full-time, but does not in itself establish any prohibition or legal limitation on the employer’s ability to employ part-time.

The first paragraph must also be viewed in light of the second paragraph, which establishes a duty to document the need for part-time employment and a duty to discuss this with union representatives. The purpose is for the general rule of full-time employment to be normative, and that the documentation and discussion duties will lead to unnecessary part-time employments being avoided by obliging the employer to assess whether there is actually a need to employ part-time.

The documentation and discussion duties apply in principle before each part-time employment. However, the preparatory works allow for certain adaptations in scope, content, orientation, and implementation of the discussions based on the conditions and needs of each enterprise. The provision still presupposes that the employer, in collaboration with union representatives, actively works with the use of part-time in the enterprise in light of the full-time norm, and that this work is documented.

It is important to emphasize that the provision is a procedural rule. A part-time employment will be fully legal and valid even if the need is not documented or union representatives have not been consulted. However, the Labor Inspection Authority can supervise compliance with the provision. What the Labor Inspection Authority will check is whether documentation has actually been prepared and discussions conducted when required. The Labor Inspection Authority will not review the employer’s assessments or set qualitative requirements for the discussions.

Practical Implications of the New Legal Changes

The legal changes will naturally have the greatest impact in sectors with extensive use of part-time work, such as in the accommodation and service industry, personal services, the health and social sector, and in retail.

Enterprises that currently use on-call substitutes and leasing to cover extra shifts should develop routines that ensure the new priority right is complied with in practice. Employers should obtain an overview of potential employees with priority rights and have a system for distributing shifts among them. For example, there could be electronic solutions where part-time employees who want extra shifts can easily learn about available shifts and must actively indicate whether they wish to take on extra shifts or not.

The introduction of the “full-time norm” with associated procedural rules requires employers to work systematically and actively with part-time employment in the enterprise. Enterprises should continuously assess whether there are organizational or administrative measures that enable greater use of full-time. In the preparatory works, it is mentioned as an example that employers, in connection with vacant positions, should review work plans and task distribution to investigate whether there is a basis for combining part-time positions.

Union representatives must be included in these processes, and the work must be documented.