Temporary Employment – Rules, Conditions, and Rights under the Working Environment Act

The Working Environment Act is based on a fundamental principle that employees should be permanently employed. This principle is codified in the Working Environment Act § 14-9 (1) first sentence and has broad political support. At the same time, the legislator recognizes that there are certain situations where temporary employment is needed. This article provides an overview of when temporary employment is permitted, what limitations apply, and what rights temporary employees have.

Legal Basis for Temporary Employment

The Working Environment Act § 14-9 (2) letters a-e states exhaustively when temporary employment is permitted:

1. Work of a Temporary Nature

This includes work that differs from what is ordinarily performed in the business or situations with marked differences in workload. Examples can be:

• Clearly defined projects

• Short-term and unforeseen work peaks

• Seasonal work

The condition "work of a temporary nature" should be interpreted strictly. General or even variations in order access will normally not be sufficient. The assessment emphasizes whether there are conditions that make a time-limited employment contract necessary.

2. Substitute Positions

An employee can be hired temporarily to fill a position when the permanent employee is absent (substitute position). This also applies to anonymous substitute positions, where the substitute does not replace a named person but covers absence in connection with, for example, vacation arrangements.

Important limitations:

• It is not permissible to cover a constant need for labor through ongoing short-term substitute agreements

• If the organization has a stable absence pattern, this should be covered through increased base staffing

3. Internships

Temporary employment is permitted for internships. The internship concept includes both:

• Practicing already acquired knowledge

• Acquiring new knowledge through performing tasks

The key is that the work aims at training or qualification within a field. The educational element does not need to constitute a predominant part of the job's tasks.

4. Participants in Labor Market Measures

Employees participating in labor market measures arranged by or in collaboration with the Norwegian Labor and Welfare Administration (NAV) can be temporarily employed. This is justified by the fact that such measures are intended to be time-limited and aim to enhance participants' opportunities to enter regular employment.

5. Athletes, etc.

Athletes, sports coaches, referees, and other leaders in organized sport can be temporarily employed. The justification is that the sport requires particular creativity and innovation, and there is often a need for renewal.

Collective Agreements as Basis for Temporary Employment

A nationwide employee organization can enter into a collective agreement with an employer or employer association on access to temporary employment for specified employee categories within:

• Artistic work

• Research work

• Work related to sports

If a majority of employees in the business are bound by the collective agreement, the employer may, on similar terms, enter into agreements for temporary employment with employees who will perform similar work but are not bound by the collective agreement.

Fixed-term Employment

Fixed-term employment is a special form of time-limited employment relationship regulated by the Working Environment Act § 14-10. Such employment can be used for:

• The top leader in an organization, regardless of the organization's size

• Positions where it is deemed necessary due to an agreement with a foreign state or international organization

During the fixed-term period, the general employment protection of the Working Environment Act applies unless the organization's top leader has waived this under § 15-16 (2).

Obligation to Discuss the Use of Temporary Employment

An employer using temporary employment must discuss its use with the elected representatives at least once a year. The discussions should include:

• The basis for temporary employments

• The extent of temporary employments

• Consequences for the working environment

The employer must provide information and present documentation to enable the parties to conduct real discussions, including which temporary employment contracts exist, their duration, and the actual basis for them.

The Basic Staffing Doctrine

The Supreme Court has developed the so-called "basic staffing doctrine" or "Statfjord doctrine," named after Rt. 1989 s. 1116. The doctrine implies that employees who cover a permanent need for labor may have a claim to permanent employment, even if each temporary employment contract is lawful in isolation.

For the doctrine to apply, the following conditions must be met:

1. There must be a permanent and stable need for substitutes in the organization

2. The permanent labor need must be covered by increasing the base staffing without substantial inconvenience

The Supreme Court's practice shows that high sick leave combined with a large number of employees in the relevant job category may indicate a permanent and stable need for substitutes. In Rt. 1989 s. 1116 Statfjord, the sick leave rate was 10-14 percent among over 200 employees, while in Rt. 2006 s. 1158 Ambulance, it was 27 percent among approximately 260 full-time equivalents.

Time Limit for Temporary Employment

The Working Environment Act § 14-9 (7) sets an absolute limit for how long an employee can be temporarily employed:

• For temporary employment according to § 14-9 (2) letter a (work of a temporary nature): 4 years

• For temporary employment according to § 14-9 (2) letter b (substitute position): 3 years

If these limits are exceeded, the employee shall be considered permanently employed. When combining employment under letters a and b, they should be assessed together according to the three-year rule.

For these limits to apply, the employment must be "continuous." Short interruptions do not necessarily interrupt the calculation. The assessment places weight on:

• Length of the interruption (interruptions under 14 days are normally not considered to interrupt the employment relationship)

• The reason for the interruption

• Whether the intention was for the employee to return

"Releasing" employees to avoid meeting the requirement for continuous employment is considered an evasion of the regulations and will normally not be given weight.

When calculating the employment period, no deductions are made for the employee's legitimate absence.

Legal Effects of Illegal Temporary Employment

An employee temporarily employed in violation of the Working Environment Act §§ 14-9 or 14-10 may demand:

• Permanent employment, cf. § 14-11 (1)

• Compensation, cf. § 14-11 (2)

When determining the content of the permanent position, a concrete assessment must be made. It may be appropriate to base this on the average working fraction the employee has worked in.

In particular cases, the court may decide that the employment relationship should terminate, even if the temporary employment was illegal. This applies only if it would be "manifestly unreasonable" for the employment relationship to continue.

Termination of Temporary Employment Relationship

Temporary employment contracts terminate at the expiry of the agreed period or when the specified work is completed, cf. § 14-9 (6) first sentence. During the agreement period, the usual rules of the Working Environment Act concerning termination of employment apply.

Employees who have been temporarily employed for more than one year are entitled to written notice of the termination date at least one month before termination. If the deadline is not met, the employer cannot require termination before one month after notice is given.

Practical Advice for Employers

Before Employment

• Carefully evaluate whether the conditions for temporary employment are met

• Thoroughly document which conditions make temporary employment necessary

• Formulate a clear and precise employment contract specifying the basis for the temporariness

During the Employment Relationship

• Keep track of the duration of temporary employment relationships

• Conduct annual discussions with elected representatives regarding the use of temporary employment

• Be particularly attentive to substitutes covering a consistent absence need

Upon Termination

• Provide written notice of the termination date at least one month before termination (for employment over one year)

• Be aware that the usual termination rules of the Working Environment Act apply during the agreement period

Conclusion

Temporary employment is permitted in specific cases, but the main rule in Norwegian employment law is permanent employment. The legislator has set clear limitations on when and how long temporary employment can be used. Employers who use temporary employment must be aware of these limitations and ensure that the employment has a lawful basis. Temporary employees often have the right to permanent employment, either because they cover a permanent labor need or because they have been employed for an extended period.