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Temporary employment and hiring are basically illegal
The main rule in the Working Environment Act is that you must be employed in a permanent position in the company you work for. This means that temporary contracts, including on-call/temporary contracts, as well as hiring from staffing agencies are not permitted in principle. It is only permitted to use temporary workers to cover a real temporary need for labor¹. If the employer uses temporary workers every month, it normally indicates that the basic staffing is too low. Below we will go through some typical cases where it is permitted to use temporary workers and some typical cases where it is not permitted to use temporary workers.
- Temporary workers for permanent employees
It is permissible to use substitutes to cover the absence of others. It is not an absolute requirement that one is a substitute for a named person. For example, it is permissible to have "summer substitutes" to cover for vacations. It is also not a requirement that the substitute must perform exactly the same tasks as the person for whom he is substituting. The employer can therefore reassign the employees, but it is an absolute condition that the substitute performs work that is actually due to others being absent. It is therefore not enough for the employer to be able to point out that someone is absent.
- Permanent temporary worker requirement
If the employer has an ongoing need for temporary workers due to absence, this should be covered by permanent employment. This means that if a company with 100 employees has a relatively stable absence rate of 10%, they should have 110 permanent employees. The 10 excess employees cover the absence of other employees.
In the bus industry, these surplus employees are called FAUSers (permanent employees without shifts). They have a less predictable working day than other employees, but beyond that they have all the rights that permanent employees have, and they build up seniority to apply for other positions over time. Instead of a regular work schedule, they often get a work and day off schedule and are told their working hours as early as possible, but no later than the day before.
- Seasonal peaks or unforeseen work peaks.
It is also permissible to use temporary workers in highly seasonal work, or to cover unforeseen, short-term peaks in work. On the other hand, temporary workers cannot cover steady variations in workload. The overarching question will be whether it is possible to organize the work through permanent employment, for example by having employees work long hours during hectic periods and take time off during the low season.
- Uncertainty about future staffing needs
It is not allowed to use temporary workers because the company believes that there may be layoffs in the near future. We find that many companies impose hiring freezes in these cases. This is not allowed. Instead, the company must staff based on their needs, and then possibly reduce staff or lay off workers if it turns out that they will need fewer employees.
In such situations, it will be a clear advantage to become a permanent employee rather than a temporary employee, even if you risk future dismissal. In these cases, employers should be open to the fact that they are staffing according to current needs, but that there is a risk of staffing reductions in the near future. When you become a permanent employee, you will receive a number of rights that do not apply to temporary employees. For example, you build up seniority, you have a notice period, you have strong job protection which means that the employer must go to great lengths to try to avoid staffing reductions, and you may have preferential rights to a vacant position in the future.
Consequences of illegal temporary employment
If the employer uses temporary workers without permission, the consequence is that the temporary worker is entitled to a permanent position.
If you want to demand a permanent position, you can do so at any time during the temporary position. If the temporary position ends, important deadlines will apply. Within 2 weeks of the last day of work, you must request a negotiation meeting. You should contact the lawyers in YTF well in advance of this deadline, so that we can help you. The deadline to file a lawsuit is 8 weeks from the last working day. If a negotiation meeting is held, the deadline is 8 weeks from the meeting. This is an absolute deadline.
If you have suffered a financial loss, you can also claim compensation. The deadline for filing a lawsuit with a claim for compensation only is 6 months from the last working day or from the negotiation meeting.
Indications of illegal temporary employment
If these points are met in your company, it is a clear indication that the use of temporary workers is illegal.
- Temporary workers are used every month.
- The temporary positions are renewed continuously and at fixed intervals, regardless of the length of the reason invoked (absence/project/season).
The justification given for the extensions will also be an indication of whether the substitute position is legal or illegal. If the extension is due to a person on sick leave having their sick leave extended, or a project having taken longer than initially anticipated, it will be an indication that the need is in fact temporary, but if the renewal occurs continuously and, for example, despite the fact that the person who was initially substituted for has returned, this will indicate that the substitute position is illegal.
If the company has not renewed your temporary employment agreement, it will also be an indication of illegal temporary employment if they have brought in a new temporary worker. It is not illegal to use a new temporary worker when a new need arises, but constantly bringing in new temporary workers indicates that the basic staffing is too low.
How to get a permanent job?
Ask who you are substituting for.
It can be tough to demand a permanent position. Many people choose to wait and see if they get a permanent offer. However, you should ask who you are temporary for, in case you later want to take your case further.
We find that some employers adjust the justification for the temporary position afterwards. To avoid this, you should ask questions and be interested in who you are temporary for, but also who others are temporary for. In this way, the employer is bound to that justification, and you avoid them subsequently masking procedural errors.
Count the substitutes
Get an overview of the staffing situation. How many temporary workers are there where you work? How many are permanent employees? How many of the temporary workers work a little and how many work a lot? Which departments have few temporary workers and which have many? This will be important information for us if you want to assess whether you are entitled to a permanent position.
Ask shop stewards what they think about the staffing
According to the Working Environment Act, the employer must discuss the use of temporary workers with the shop stewards once a year. The shop stewards will therefore often have a lot of information that is useful if you think you may be entitled to a permanent position. Ask what percentage are temporary workers, and what is the reason for there being so many temporary workers.
It is also important to talk to the shop steward to find out whether an agreement has been made regarding extended access to hiring. If so, this may mean that you are not entitled to permanent employment even if the basic staffing is too low.
Get organized
Many temporary workers are unorganized. As an organized worker, you have a union behind you, which is an extra important safety net for those who do not have regular job security.
Ask for assistance from the association
If you are a member and have decided that you want to claim a permanent position, you must send an email to ytf and request an assessment of the case. Include the information you have received by following the advice above. Also send all relevant documentation that shows how much and how long you have been a temporary worker, including employment contract(s), any assignment confirmations, payslips and timesheets.
We look forward to hearing from you.
¹ It is also permitted to use temporary employment/hiring to cover a permanent need in some very special exceptional cases. This is described in more detail in letter cf of the Working Environment Act §14-9 and applies to labour market measures under the auspices of NAV, athletes, etc., as well as a general access that is very impractical and therefore not used.
