Four on-call firefighters employed under the so-called RiB agreement, notified their employer – a civil protection union – that they wanted a higher employment rate in accordance with section 25a of the law on job protection. The employer then hired 16 full-time firefighters without offering the on-call firefighters a higher employment rate. The parties agreed that the four firefighters had sufficient qualifications for the vacant full-time positions. The labor court held that the four firefighters on standby were part-time employees within the meaning of section 25a of the Employment Protection Act and that the employer had breached this provision by not offering them any of the vacant full-time jobs.
Comments from Vinge
The question here is how to define the term “part-time employee” within the meaning of Section 25a of the Employment Protection Act. The provision states that a part-time employee who has expressed an interest in a higher rate of employment has a priority right to that employment, provided that the employer’s labor requirement is met by employing the employee to a higher employment rate and that the employee has sufficient qualifications for the new functions. The intent of this provision is that full-time employment should be used, with part-time employment only to be considered when justified by the needs of the employer or requested by the employee. So, when the company needs more employees, the employer should offer a part-time employee a higher employment rate, rather than recruiting new employees.
What constitutes part-time employment should be determined on a case-by-case basis by comparison with the applicable collective agreement or market practice. This case clearly established that a part-time employee need not have a fixed rate of employment to be entitled to priority entitlement. Indeed, the work obligations of the firefighters only covered the time of on-call duty, training and exercise. Therefore, the assessment means that an employee can be considered as a part-time employee even if the work obligation is not linked to any specific employment rate. The case shows that the employee’s working hours are not a decisive factor with regard to the right of priority, but only whether the new job actually has a higher rate of employment than the current part-time job.
The four firefighters were employed by the Fire Brigades Association (FBA) as on-call firefighters under the collective agreement for on-call firefighters (RiB). The four firefighters had advised their employer that they wanted a higher employment rate. According to section 25a of the Employment Protection Act, a part-time employee has a priority right to this employment, provided that he meets the requirements and labor needs of the employer . Although the firefighters had sufficient qualifications for the position and thus met the requirements of the employer, the FBA considered that the firefighters did not meet the need for manpower. The FBA argued that firefighters had no defined employment level and were therefore not “part-time employees” for the purposes of the Job Protection Act, nor the equivalent of a full-time firefighter. The FBA has thus recruited 16 full-time firefighters under the collective agreement for full-time firefighters (RiB). The FBA recruitment led to a dispute between the parties over whether the four firefighters should be considered part-time employees and would therefore have met the employer’s labor requirements.
The assessment of the Labor Court
The employment tribunal found that the terms and conditions of employment for reserve firefighters indicate that the employment is generally supplementary employment alongside regular employment or self-employment, and not part-time employment in the ordinary sense of the term. However, the fact that the firefighters did not have a defined rate of employment was not decisive in determining whether the firefighters should be considered as part-time employees within the meaning of section 25a of the law on the protection of employment. As the on-call firefighters have the same duties as the full-time firefighters, the Labor Court decided that the four firefighters were part-time employees.
Furthermore, the Labor Court clarified that the right of priority under section 25a of the Employment Protection Act does not only apply to a specific area of a collective agreement, but rather applies to the entire operational unit, regardless of the applicable collective agreement. Thus, the fact that the firefighters did not fall within the scope of the collective agreement as full-time firefighters was not decisive in determining whether they could be considered part-time employees.
Finally, the Labor Court found that the employer’s labor need would have been met by employing the four firefighters at a higher employment rate. The firefighters qualified for the jobs and were part-time employees within the meaning of Section 25a of the Employment Protection Act.