Black Week is coming to an end and the pre-Christmas season has started. For many employers, this means a need for extra staff. We give you what you need to make sure this year's Christmas season helpers are legally employed.

1 Permanent employment

The main rule in Norway is that employers must use permanent employment. The employee must be guaranteed a real and predictable scope of employment which must be defined in the employment contract. It will normally be easy for full-time positions (where you can say "100% position") and for part-time positions that cover a permanent and fairly steady need for labour.

The challenge arises when it is uncertain how much need the employer has for the employee and / or at what times. The Working Environment Act nevertheless requires that the scope of work is defined, either through an employment fraction or by a certain number of hours / days per week, the number of hours on certain days or the like. It is not required that the working hours / days must be distributed regularly throughout the year.

It is thus possible to define a limited time period with more work some periods than others, e.g. an employment with 40 hours of normal working hours per week in the period November and December and 0 hours of regular weekly working hours for the rest of the year. Legislation today has no lower limit for how small or limited a position can be. However, it is not permitted to employ so-called on-call substitutes where it is completely open how much the employee has the right and duty to work.

2 Temporary employment

In order to be able to hire temporarily, the employer must document a basis for the employment. The Working Environment Act § 14-9 second paragraph letters a to f provides an exhaustive list of the bases that can be used. For most employers, there are four options that are relevant:

  • Substitute for a specific / some specific persons who are absent, e.g. sick leave, parental leave
  • Persons on labour market measures under the auspices of NAV
  • If the work is of a temporary nature
  • The "no terms"-option

It is often easy to see if the conditions for the first two bullet points are met. In these situations, however, the employer must keep in mind that the employment contract must state which of the law's alternatives (ref. bullet points above) they use for the specific temporary employment. For example, it must be stated "temporary employee in accordance with the Working Environment Act § 14-9 (2) letter b)" in the employment contract of a person who is a substitute.

The third and fourth bullet points more often present challenges. Although a work may seem temporary (ref. the third bullet point), it is nevertheless not a given that it is considered "of a temporary nature" according to the law. A specific assessment must be made in the individual case. According to the preparatory work, seasonal fluctuations, such as Black week and the Christmas season, will normally meet the requirement to be of a "temporary nature".

The fourth bullet point gives employers an opportunity to hire someone temporarily without being required to do so. This option can be used for up to 12 months for the work in question, but not for more than 15% of the employees. When the temporary employment has ended, there is normally a quarantine period of another 12 months before the employer can use the same basis for a new temporary employment for the same work.

3 Hiring from a temporary staff recruitment agency

It is not up to employers to decide when they can hire labour from a temporary staff recruitment agency. According to the Working Environment Act § 14-12, if the need for labour satisfies the conditions for using a temporary employment, employers can choose whether they want to hire temporarily or hire from a temporary staff recruitment agency.

However, there is one exception. This exception is the "no terms" option, which is described in the section on temporary employment above. Employers cannot use this basis to hire labour from a temporary staff recruitment agency for 12 months at a time (with a 12-month quarantine period between the hiring periods). Here, the employer must use temporary employment.

Sections 14-12a to 14-12c of the Working Environment Act provide rules to ensure the hired person equal pay and working conditions as the permanent and temporary employees in the company to which they are hired. This includes that companies that rent from a temporary staff recruitment agency may be responsible for paying salaries and the like to the hired one if the temporary staff recruitment agency does not do so or pays too little. Hired employees shall, as a general rule, also have access to the same social benefits as the other employees.

4 Written employment contract

The Working Environment Act requires that all employees, both permanent and temporary, must have a written employment contract. In the case of hiring from a temporary staff recruitment agency, the employee will have his/her employment agreement with the temporary staff recruitment agency, while the terms for the actual hiring relationship are regulated in a separate agreement between the company that hires and the temporary staff recruitment agency.

The Working Environment Act § 14-6 sets certain minimum requirements for the written employment contract. Among other things, the agreement must contain information about the workplace, the content of the position and salary. As mentioned above, the written employment contract must also say something about the scope of the position and about the expected working hours. If the employee is employed temporarily, the agreement must also specify the basis for this.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.