Regulation of working hours for employees in scientific posts at the University of Oslo

PART 1 NORMAL WORKING HOURS

Item 1.1 Posts which are normally ¡°particularly independent¡± in legal terms

Research demands a high degree of individual independence when organising the working day. This is difficult to combine with ordinary regulation of working hours. Many of the University employees will therefore come under the legal and collective agreement based term ¡°particularly independent post¡±. In principle, an individual assessment is required to determine whether an employee falls into this category or not. However, it is also possible to simultaneously assess several employees with the same types of assignment. The criteria for assessment are presented in item 1.3 of these guidelines.

Employees whose work represents around 50% research in addition to other independent assignments, such as preparing classes, are in the main in charge of organising their working day. On this basis, the following categories at the University of Oslo are regarded as a rule as ¡°particularly independent posts¡±, cf. section 10-12, second paragraph of the Norwegian Working Environment Act and section 13 no. 4 of the Basic Collective Agreement.

The same applies to educational posts where the main purpose is formal qualification and which comprise a minor volume of obligatory work;

Employees in these posts normally have a clear and obvious independence as to how and when their work is organised and executed. Unless the employer confirms in writing that a specific employee is not covered by this rule, employees in the above-mentioned position categories are legally regarded as particularly independent.

Item 1.2 Posts which require specific assessment

For employees in the following categories, the nature of assignments and organisation of work may vary:

An assessment of whether the individual employees in the above-mentioned categories are covered by the legal term "particular independence" has to be carried out by a local supervisor based on specific circumstances. This assessment shall be based on the criteria specified in item 1.3 of these guidelines.

If the assessment concludes that the employee cannot be regarded as ¡°particularly independent¡±, then he/she will be subject to the normal regulation of working hours pursuant to the Norwegian Working Environment Act, supplemented by the provisions of the Basic Collective Agreement. This includes the requirement in section 10-7 of the Working Environment Act which states that: ¡°An account shall be kept of the hours worked by each employee.¡± If the employee is permitted to freely choose his or her working hours, then he/she must record the hours worked every day on a continuous basis. This record of working hours shall be made accessible to the employee¡¯s supervisor.

Item 1.3 Criteria for individual assessment

Individual assessments shall be based on typical characteristics for the different categories of positions. As such, an individual element can be linked to variations in the actual working situation for each employee, viewed in light of type criteria for the category in question.

The Working Environment Act and the Basic Collective Agreement are, in principle, co-independent also in terms of the definition of "particular independence". However, there are no real circumstances which require a different interpretation of the legal term than that stated in the Basic Collective Agreement. The University of Oslo therefore bases its interpretation on joint criteria. Whether employees are covered by the legal term ¡°particular independence¡± must be determined according to the degree to which they themselves:

• control their own working hours

• prioritise their own assignments

• decide what has to be done

• decide how the work is to be executed

• decide when the work is to be executed

If the major share of the work is controlled by the employee, then the employee can legally be defined as particularly independent. If, however, the dominant share of the work is governed by the employer, the term "particular independence" cannot be applied. For such individual assessment, it is thus the degree of ¡°constraint¡± versus the degree of ¡°freedom¡± when organising the working day and assignments which is of interest.

Scientific work is mainly independently initiated, and characteristics of particular independence are that the work is distinguishable by:

• professional freedom to choose research-related issues, methods and the like

• freedom to publish research-based work, scientific articles, specialised books or other method of communication

• independent educational activity, such as professional preparation of classes, guidance for graduates, planning courses, compiling textbooks

• independent professional input to public research work, media or other types of social contribution

• freedom to plan activities in other locations than the normal workplace, such as field work, observations, interviews, studies in archives/libraries

• the employee¡¯s working hours during such processes can be difficult to control, as the employer does not have specialised professional expertise to check how much time is needed to complete an assignment

Examples of questions which may help assess whether a position is covered by the term "particular independence":

• To what extent are the employee¡¯s working hours governed by the decisions of others? If the extent is relatively small, then the employee is most probably particularly independent. This will typically be cases where a scientific employee may have from 260-300 obligatory hours of teaching per year or less, taking into consideration that a number of these hours may represent guidance which is not governed according to time or location.

• To what extent can the employee choose assignments and working methods? This item may also include the extent to which the employee is free to prioritise assignments and working hours. The more freedom the employee has, the more likely he/she is to be particularly independent. This issue must be considered in relation to the extent of freedom when executing the work. An assignment may be given for example as a subject for a dissertation or as a part of a project, but this is not decisive if the employee has the freedom to control the execution of the work in terms of subject and time.

• Who has the professional expertise and opportunity to assess how much time is required to execute the work in a scientifically proper way and with good results? The more this is true of the employee, the stronger the case for the employee being in a ¡°particularly independent post¡±.

• To what extent are stringent limits on scope and allotment of working hours compatible with executing the assignments in question? In cases where stringent limits would make it difficult for the employee to perform the assignment, there is a stronger case for stating that the employee has a ¡°particularly independent post".

• To what extent is it practically possible to keep a secure check and record of working hours? The more difficult this is, the stronger case there is for the post being ¡°particularly independent¡±.

Item 1.4 Legal impact of having a particularly independent post

The legal impact of having a ¡°particularly independent post¡± is governed both by the Norwegian Working Environment Act and the Basic Collective Agreement.

The Act governs issues such as the scope of working hours, allotment of working hours and the requirement for a record of hours worked. Employees in particularly independent posts will automatically be excluded from these working hour regulations, with the exception of section 10-2, first, second and fourth paragraphs (respectively the requirement that employees are not exposed to adverse physical or mental strain, the right to exemption from working at night and the right to reduced working hours).

The legal limits for scope and location of working hours therefore does not apply to these employees. Neither does the requirement in section 10-7 regarding keeping an account of hours worked. Consequently, there is no legal obligation to record normal working hours for employees covered by the legal term ¡°particularly independent¡±.

The limits of the Basic Collective Agreement for working hours will however apply, irrespective of whether the employee is exempt from the provisions of the Working Environment Act. The employee has the right to limit active working hours to 37.5 hours per week in a full-time position, cf. section 7 no. 1 of the Basic Collective Agreement.

The Basic Collective Agreement requires that working hours, where possible, shall be organised in the period of time between 07.00 and 17.00, from Monday to Friday. However, this must be seen as a reference to the working hours governed by others than the employee him/herself, for example, class times stipulated by the employer. Furthermore, particularly independent employees in principal determine the allotment of the ¡°free¡± share of their working hours.

The employee is otherwise obliged to comply with class times, project participation, meetings and other activities where the timing is governed by the employer.

The Basic Collective Agreement also includes special exemptions for particularly independent employees. However, as opposed to the Working Environment Act, the function of this exemption is to regulate the issue of economic compensation. The provisions in question here are in section 8 no. 6 regarding compensation for travel abroad, section 13 no. 4 regarding compensation for overtime, section 15 no. 7 regarding work at nights, on Saturdays and Sundays etc. and section 16 no. 3 regarding weekends and public holidays.

The limits for overtime are described in detail in part 2 of these guidelines. Any exemptions according to the other provisions mentioned require separate agreement locally, which the University of Oslo does not have. However, employees do not have the right, without the prior consent of the employer, to organise normal working hours during periods which represent a claim for increased salary according to the provision regarding travel, work at nights, on Saturdays and Sundays and work at weekends and on public holidays.

For individual contracts of employment, confirmation is required that the employee occupies a particularly independent post, with reference to the limits on working hours stipulated by the administrative guidelines regarding ¡°Regulation of working hours for employees in scientific positions at the University of Oslo¡±.

PART 2 OVERTIME

Overtime limits are stipulated in section 10-6 of the Working Environment Act and section 13 of the Basic Collective Agreement.

Item 2.1 General requirements regarding overtime

Section 13 no. 1 of the Basic Collective Agreement states that ¡°Overtime work shall be compulsory and controllable, and shall be limited pursuant to the requirements of the Working Environment Act." The Working Environment Act, section 10-6 first paragraph states that ¡°Work in excess of agreed working hours must not take place except in cases when there is an exceptional and time-limited need for it.¡±

Irrespective of working hour arrangements and whether the employee occupies a particularly independent post, the general condition is that:

• overtime may only be ordered in the case of exceptional needs, i.e. cannot be utilised to cover permanent requirement for manpower

• overtime shall be explicitly ordered by a superior officer, who must also be able to control and confirm that the overtime work has been executed.

Item 2.2 Overtime within normal working hours regulation

For employees who are covered by ordinary working hours regulation (i.e. who are not in ¡°particularly independent posts¡±) the limits for daily, weekly and annual overtime are stipulated in section 10-6 of the Working Environment Act. Overtime work must not exceed ten hours per seven days, 25 hours per four consecutive weeks or 200 hours during a period of 52 weeks.

The Act operates with a 40-hour week, while governmental employees have working hours of 37.5 hours per week, as stipulated by tariff. This implies that the weekly limits for overtime may be extended by 2.5 hours. However, this does not automatically imply that employees can annually work 130 hours of overtime in addition to the limit of 200 hours, i.e. ¡°saving" an extra quota. An extended quota only applies on a weekly basis, i.e. the difference between 40 and 37.5 hours. The annual number of ¡°extra hours¡± will therefore be determined by the actual weekly overtime for the individual employee.

Total working hours (normal working hours and overtime) must not exceed 13 hours per 24 hours.

Exemptions may be permitted from the outer limits for overtime by way of agreement with the employee representative or upon approval from the Labour Inspection Authority, cf. section 10-6 of the Working Environment Act.

Item 2.3 Overtime when in a particularly independent post

Employees occupying particularly independent posts are exempt from ordinary overtime limits, cf. section 13 no. 4 of the Basic Collective Agreement.

Employees in particularly independent posts do not as a rule have the right to overtime payment as they mainly control their own working hours. However, as an exception, they do have the right to compensation for overtime of up to 300 hours per calendar year pursuant to section 13 no. 4, litra c of the Basic Collective Agreement. This is conditional upon the overtime work being ordered by a superior officer who is also able to carry out the required level of control of the overtime work. The requirement for control also includes the responsibility to confirm that normal working obligations pursuant to the contract of employment have been fulfilled.

The decisive issue here is that the employee has a superior officer with a genuine capacity to judge the actual requirement for overtime and to control and confirm that the overtime work has been executed.

The right pursuant to the Working Environment Act to extend the limits for overtime upon agreement with an employee representative or upon approval by the Labour Inspection Authority does not apply, as these employees are exempt from section 10 of the Act. The limit of 300 hours is therefore absolute.

Item 2.4 Payment for overtime

Employees who work overtime are responsible for recording the time overtime work started and ended and for submitting documentation to their superior officer.

For all work ordered outside of normal working hours, the employer is obliged to pay remuneration according to the tariff stipulated in section 13 no. 2 of the Basic Collective Agreement and according to the employee¡¯s reciprocal legal claim. The prevailing rate is 50% supplement to the hourly rate up to 20.00 and 100% after this time and on Saturdays/Sundays.

On individual agreement between the employer and employee, an exactly equivalent number of hours may be taken off in lieu of overtime worked, cf. section 16 no. 2 of the Basic Collective Agreement. In addition to time off in lieu, the employee is entitled to be paid the difference between ordinary pay and overtime pay.

The University of Oslo is an institution and the limits for overtime therefore apply irrespective of whether the employee works across a number of internal organisational boundaries. The rates for overtime pay therefore apply when the employee is ordered to execute extra assignments outside of normal working obligations by other University units than the employee¡¯s own place of service.

PART 3 REPORTING ABSENCE

All employees are obliged to report absence during working hours, for example:

• Sick leave in the form of self-certified sick leave or a doctor¡¯s certificate, within the limits stipulated in the National Insurance Act and the University of Oslo¡¯s inclusive workplace (IA) agreement.

• When taking agreed holidays in accordance with the provisions of the Holiday

• Occupational travel, participation in seminars outside the University of Oslo or other forms of transferring activities to other locations than the normal workplace.

• Taking time off in lieu of overtime or extra hours when working a flexitime scheme.

• Absence due to leave granted.

• Other forms of absence during working hours.

The employee is responsible for reporting absence as mentioned above to his/her superior officer, via self-registration according to the procedures established at the employee's workplace.