The Danish parliament has adopted the announced act on temporary work division. The act comes into force on 14 September 2020.
The main points are:
When may work division be introduced?
Under this act, a work division programme may be introduced when reasonably justified. The division of work must take effect no later than on 31 December 2020 and may continue for no more than four months.
The act presumes that the Minister for Employment sets out the specific rules on which parts of an enterprise and which groups of persons may be subject to work division, as well as the employment/unemployment ratio. In the explanatory notes, reference is made to the tripartite agreement, according to which the time of unemployment during a work division programme must average at least 20% and no more than 50% over a four week period, relative to the contractual working hours. It is also stated that these percentages may be changed in the next cycle.
Further, according to the travaux preparatoires to the bill, more specific rules may be set out regarding the possibility of exempting key employees from work division, and on what will apply in relation to, for instance, trainees and employees with subsidised salaries, as well as the possibility for employees to attend training programmes during the work division period.
Interaction with provisions in collective agreements
Under the act, a work division programme may be introduced regardless of provisions in collective agreements or what may be agreed between the employee and the employer on salary, working hours, etc., including any collective agreement provisions on division of work.
To the extent that they do not hinder the introduction of work division under the act, provisions in collective agreements, applicable law and other agreed terms still apply in the period of work division. Consequently, any provisions in collective agreements regarding notification periods, which could be a hindrance for work division, can be disregarded, whereas rules on, for instance, the scheduling of working hours must be observed.
Work division is voluntary for employees, but …
When employees are informed that the introduction of a work division programme is desired, they have 24 hours to decide whether they want to be included in the programme. Employees, who do not inform the employer that they do not want to be included in work division within 24 hours, will be included automatically, if the programme is introduced.
If individual employees do not want to be included, it follows from the act that the employer "will decide ... whether the employees are to be terminated".
The explanatory notes to the bill state that the relevant employees will receive their salaries during the applicable period of notice as well as "according to circumstances any severance pay and other benefits applicable on termination".
At committee stage, to the question of whether such employees are still "subject to the principle of objectivity in accordance with collective agreements and other legislation", the Minister replied:
"This issue was not addressed in the tripartite agreement, and in my opinion it would be more prudent to realise this agreement in accordance with its wording and the common presumptions on which the agreement relies.
So the bill does not suggest regulation of the issue, which must be assessed on the basis of the specific situation as well as any provisions in collective agreements and the law that would apply in this connection. Disputes should be settled in accordance with the industrial rules".
This most likely means that it is not the intent to cancel the protection from termination that follows from, for instance, the Danish Equal Treatment Act (ligebehandlingsloven) and the Danish Employment Non-Discrimination Act (forskelsbehandlingsloven).
Employees who have announced that they do not wish to be included in the work division programme, and who are not terminated by the employer, remain subject to the existing employment terms.
Employees included in a work division programme under the act cannot be terminated during the work division period for any of the reasons that led to the introduction of work division.
According to the explanatory notes, such termination will be "invalid".
Right to resign without notice
Employees included in the work division programme may resign without notice to take on other employment with longer working hours.
Enterprises in their entirety, divisions or production units that have introduced work division may not employ agency workers from temp agencies.
Decision to terminate a work division programme
If the employer decides to terminate the work division programme, the employees become subject to the full employment terms applicable at the time when work division was introduced.
Right to unemployment benefits
Employees included in a work division programme are entitled to unemployment benefits. Employees who are not already members of an unemployment insurance fund will obtain the right to unemployment benefits during work division pursuant to the act from the time when they apply for admission to a recognised unemployment insurance fund.