Variable working hours

The employment contracts with variable working hours do not determine any fixed working hours, but the employee’s working hours fluctuate between the agreed minimum and maximum hours. The number of working hours can be agreed to be, for example, 0–40 hours per week or 10–30 hours per week. When the minimum working hours have been determined at zero hours during a week or a longer period of review, it is referred to as a so-called zero-hour contract. When the employee undertakes to perform work for the employer when separately asked to do so, it is also considered a variable working hours arrangement.

Changes in the Employment Contracts Act and Working Hours Act

The rights of employees working on the basis of variable working hours were strengthened with legislative reforms, which entered into force on 1 June 2018, such that their position in cases of illness and termination of employment is more secure, and the employees are better able to plan the coordination of their work and leisure time. The transitional period of legislation ended on 31 December 2018.

The legal reforms were implemented as additions to the Employment Contracts Act and the Working Hours Act, and they comprise the following:

  • Conditions for reaching agreement on variable working hours
  • Negotiations regarding minimum working hours
  • A report on the principal terms and conditions of employment must be provided when observing variable working hours
  • Pay during illness
  • Pay for the period of notice
  • Employee’s consent to additional work
  • Consultation of the employee on work shifts which exceed the minimum working hours.

More detailed information on these additions can be found under the subheadings on this webpage.

To which types of contracts does this apply?

  • A working hours clause where no minimum working hours have been agreed upon, but the maximum amount of regular working time has been agreed (for example, 0–40 hours per week)
  • A working hours clause where minimum and maximum working hours have been agreed for regular working hours (for example, 15–35 hours per week)
  • A contract under which the employee is called to work separately and which includes no agreement on regular working hours (0 hours per week).

And to which not?

  • Average working hours and flexible working hours
  • Working hours arrangements where the employee is able to decide on his or her amount of working hours, such as work based on commission or work based on other incentive wage arrangements where the employee can decide on the amount of work to be performed
    • In principle, the Working Hours Act does not apply in such contractual relations
  • Arrangements where a fixed-term employment is agreed between the parties for each occasion of work
  • A so-called framework-agreement model (cf. called to work as needed)

Conditions for agreeing on variable working hours (Employment Contracts Act, chapter 1 section 11(2))

  • At the employee’s initiative (the reason, such as studying, should be recorded in the employment contract)
  • At the employer’s initiative when the need for labour force is not fixed
    • If, in fact, the working hours prove to be fixed, the variable working hours clause is invalid and the working hours clause must be interpreted as fixed.
    • Cannot be agreed at the employer’s initiative to be fewer than required by the employer’s actual labour need

Negotiations regarding minimum working hours (Employment Contracts Act, chapter 1 section 11(3))

  • If the actual working hours demonstrate that the agreed working hours clause has been agreed to be too small for the employer’s actual need for labour (for example, the fluctuation range is 0–40 hours per week), the employee can request a negotiation to amend the working hours clause.
    • The review period is six months
    • Requires the employee to be active
      • The employee has the right to use an assistant in the negotiations
  • If no agreement is reached on new minimum working hours, the employer must present in writing relevant grounds justifying how the valid working hours clause still corresponds to the actual labour need.

Report on the principal terms and conditions of employment (Employment Contracts Act, chapter 2 section 4(2))

  • The information on the working hours must be included in the employment contract or a written statement
  • When variable working hours are observed, the employer must also provide a statement on the need for labour force
    • A separate statement or an extract from a contract/statement
    • Non-binding, informative only
    • Describes the situations where work contribution is most likely needed

Pay during illness when observing variable working hours (Employment Contracts Act, chapter 2 section 11(2))

  • The employee is entitled to pay during illness, if he or she had would have been working when fit for work
    • In practice, this can be demonstrated on the basis of, for example:
      • Entries in a work shift schedule
      • If the employee’s shifts have not been marked in the work shift schedule, the employee is entitled to pay during illness:
        • When a shift has been agreed upon otherwise, or
        • When, in the circumstances, it can otherwise be taken for granted that the employee would have been at work when fit for work (for example, always at work on Mondays)
  • Exceptions can be made on the basis of a collective agreement

Pay for the period of notice when observing variable working hours (Employment Contracts Act, chapter 6 section 4a)

  • The general provision is the usual pay
  • If the amount of work offered by the employer during the period of notice is less than the average amount offered in the last 12 weeks preceding the last work shift, the employer must compensate for the loss in income caused by the smaller amount of work
    • Not entitled to pay when the employment has lasted for less than one month

The provisions concerning working hours when observing variable working hours

Consent to additional work (Working Hours Act, section 18.3)

  • Additional hours can be required in addition to the working hours indicated in the work shift schedule only with consent from the employee
  • The consent is restricted – it can only be given
    • Specifically for each work shift, or
    • For short periods (such as peak hours)

Consultation of the employee on work shifts which exceed the minimum working hours (Working Hours Act, section 35.3)

  • For minimum working hours (for example, 10–30 hours per week), the employee’s position is equivalent to that of an employee observing fixed working hours
  • When the employer wishes to mark work shifts exceeding the minimum working hours in the work shift schedule, the employee must be given the possibility to notify within a specified time limit to what extent and with what conditions he or she can accept the work shift
    • Reserving a possibility for consultation is sufficient
      • No provisions are made for any specified form of consultation
      • For example, the employee can notify the days when he or she is not available for work in any case
  • Exceptions can be made on the basis of a collective agreement

Example: Working hours in accordance with the contract are 10–30 hours per week:
Working hours in accordance with the contract are 10–30 hours per week