Detailed content of the emergency provisions for inclusion in the collective agreements for the commercial sector and in the employment legislation
The validity of the emergency legislative changes due to the covid-19 will end on 31 December 2020. The emergency legislative provisions in order to help the covid-19 situation came into force 1 April 2020. Originally, the changes were agreed to be valid until 30 June 2020 but their validity was lengthened until 31 December 2020. The legislative changes were applicable to all employees regardless of whether they are covered by the collective agreements for the commercial sector or not.
If a co-operation procedure is underway while the emergency provisions are in force – in other words, if the negotiation proposal is issued no later than 31 December2020 – the shorter periods can be applied, even though the co-operation procedure extends beyond the expiry of the agreement. In addition, under the Act on Co-operation within Undertakings, the employer and the employee representative (or employees if an employee representative is not elected) may still agree otherwise regarding the negotiation periods.
The shorter notice period for lay-offs can be applied if the notice of lay-offs is issued while the emergency provisions are in force – no later than 31 December 2020 – even though the notice period for lay-offs extends beyond the expiry of the emergency provisions. From 1 January 2021 onward, the notice period for lay-offs is 14 days. The notice period may be reduced to 7 days where locally agreed (in accordance with section 23). The matter must be concluded with a shop steward if one has been elected at the workplace.
The extendedre-employment obligation (i.e. 9 months) for redundant employees is valid if the notice of termination was given 31 December 2020 at the latest.
Temporary emergency provisions in collective agreements and employment legislation
Cancellation of employment during the probationary period (as of 1 April until 31 December 2020)
The changes mean that employment can be cancelled during a probationary period on production-related and financial grounds. In practice, this requires the same type of substantial and permanent decrease in work as for terminations on production-related and financial grounds. Employment can only be cancelled during a probationary period once work has begun.
Cancellation is not permitted if the employer has recruited a new employee for similar duties either before or after the cancellation during the probationary period and the operating conditions have not changed in the corresponding period. “New employee” can also refer to the extension of a fixed-term employment contract. The employer is not entitled to cancel an employment contract if the employee can be reassigned to or trained for different duties (Employment Contracts Act, chapter 7, section 4).
According to our interpretation, there are effectively three substantive differences between a cancellation during a probationary period and an “ordinary” termination on production-related and financial grounds:
There is no need to observe a notice period
There is no need to enter into co-operation negotiations for cancellations
There is no re-employment obligation
Cancellation during a probationary period on production-related and financial grounds also applies to cancellations of apprenticeships based on employment contracts.
Lay-offs of fixed-term employees (as of 1 April until 31 December 2020)
Employees in fixed-term employment relationships can be laid off in the same way as permanent employees. So far, the prerequisite has been that the fixed-term employee is deputising for an employee on a permanent employment contract and the employer would be entitled to lay off the permanent employee if that person were at work. Now, the fixed-term nature of a contract makes no difference to the right to lay-off. The obligations to offer other work and training (as alternatives to lay-offs) must also be taken into consideration for fixed-term employees.
Lay-offs may also be used for apprenticeships based on fixed-term employment contracts.
If the lay-off of a fixed-term employee begins before the law expires – i.e., no later than 30 June – and continues after the law has expired, the lay-off is permitted for as long as the grounds for the lay-off remain in effect with respect to the specific fixed-term employee.
It should be noted that the employee may still terminate their employment during the lay-off with immediate effect (this right remains unchanged). This also applies to fixed-term employees, even if there is no provision for termination in their employment contracts.
Extension of the re-employment obligation (as of 1 April 2020 until 31 December 2020)
The length of the re-employment obligation in accordance with chapter 6, section 6 of the Employment Contracts Act is nine months if notice of termination was provided before the expiry of the emergency provisions.
The decisive aspect is the date of termination, which, in practice, is the date when the notice of termination was provided.
The re-employment obligation applies if the employee has been dismissed on production-related and financial grounds (Employment Contracts Act, chapter 7, section 3) or in conjunction with a reorganisation procedure (Employment Contracts Act, chapter 7, section 7). The re-employment obligation does not apply to cancellation during a probationary period on production-related and financial grounds.
Example 1: An employee has a six-month notice period. The employer dismisses the employee while the emergency provisions are in force on production-related and financial grounds, and the employment is due to end on 30 November 2020. The nine-month re-employment obligation begins on 1 December 2020 and ends on 31 August 2021.
Co-operation procedure and notice period for lay-offs (from 1 July until 31 December 2020)
The provisions concerning co-operation negotiation periods for all employees are determined as of 1 July 2020 as follows:
As of 1 July, a negotiation proposal can be issued with a five-day notice period.
As of 1 July, co-operation negotiations must be held for five days from the start of negotiations if the negotiations concern lay-offs.
The parties may still agree on shorter negotiation periods and negotiation proposal periods if wanted.
The provisions concerning notice periods for all employees are determined as of 1 July 2020 as follows:
As of 1 July, the notice period for lay-offs is five days for all employees.
Co-operation procedure and notice period for lay-offs (until 30 June 2020)
The provisions concerning co-operation negotiation periods are determined in the scope of application of the collective agreements betweenthe Finnish Commerce Federation and PAM until 30 June 2020 as follows:
As of 19 March, a negotiation proposal can be issued with a three-day notice period.
As of 19 March, co-operation negotiations must be held for four days from the start of negotiations if the negotiations concern lay-offs of no more than 90 days.
As of 1 April, co-operation negotiations must be held for five days if the negotiations concern at least ten employees and the lay-offs last for more than 90 days.
The provisions concerning notice periods for lay-offs are determined in the scope of application of the collective agreements between the Finnish Commerce Federation and PAM until 30 June 2020 as follows:
As of 19 March, the notice period for lay-offs was seven days.
According to the collective agreements between the Finnish Commerce Federation and PAM, it is possible to reach local agreements in the workplace (according to clause 23 of the collective agreement) to reduce the notice period to three days. The matter shall be concluded with a shop steward if one has been elected at the workplace.
As of 1 April, the notice period for lay-offs is five days.
The option of reaching a local agreement in the workplace to reduce the notice period for lay-offs to three days is still available.
Guidelines concerning the calculation of negotiation and lay-off notice periods
Co-operation negotiation periods and lay-off notice periods are calculated in calendar days.
The Finnish Commerce Federation’s interpretation is that when redundancy negotiations are held because of the coronavirus pandemic, decisions on lay-offs can now be made as soon as the negotiations are over. This means that notices of lay-offs may be issued to employees on the day when the negotiations are concluded.
Example 2: The employer issues a negotiation proposal for co-operation negotiations on 1 July. As no other agreement was made between the parties, the intention was to begin co-operation negotiations on 6 July, five days after the negotiation proposal was issued. Negotiations must be held for five days unless otherwise agreed. The co-operation negotiations end on 10 July, after which the employer may make decisions. Notices of lay-offs can, therefore, be issued as soon as the negotiations are concluded on 10 July.
Temporary emergency provisions agreed by the Finnish Commerce Federation and PAM in the scope of application of the collective agreements between the unions
The following emergency provisions apply only to employees within the scope of application of the collective agreements between the Finnish Commerce Federation and PAM. The validity of the emergency provisions concerning the publication of the work shift plan and the self-certification procedure ended on 30 June 2020. However, a local agreement may be made in accordance with section 23 to enable the schedule of work shifts to be communicated to employees no later than one week before the working week begins
Alteration and publication of the work shift plan (as of 19 March and until 30 June 2020)
The unions agreed that the coronavirus situation justifies changes to the work shift plan.
Employers shall make all necessary changes at the earliest opportunity and take into consideration the coronavirus situation when they plan shifts.
While the emergency continues, the work shift plan may be published with one week’s notice.
Example 7: The workplace applies a system for averaging working time with an averaging period of 26 weeks. On 15 March, the employer published work shifts for four weeks ahead, in compliance with the notice periods stated in the Collective Agreement for the Commercial Sector. Therefore, work shifts were published for a period ending on 12 April. The employer has always published work shift plans for four weeks at a time. However, under the new emergency provisions, the employer may publish the next work shift plan as late as 5 April, one week before the beginning of the working week.
If necessary, the employer may alter previously-published shifts by agreement or unilaterally, providing that the aforementioned criteria are met in relation to the situation being caused by the coronavirus specifically and being unforeseeable in nature. Note: when the work shift plan is altered, work shifts that have already been announced may be postponed to a later date in the work or during the balancing period. They cannot be removed.
Self-certification procedure (as of 19 March and until 30 June 2020)
For the duration of the coronavirus pandemic, a five-day self-certification procedure will be introduced in workplaces. The purpose of this arrangement is to reduce the burden on health care services due to current circumstances.
A self-certification procedure means that employees are able to inform their employer that they are unable to work without requiring certification from a doctor or nurse to demonstrate lack of working capacity.
Self-certifications may cover up to five (5) calendar days of absence due to illness at the employee’s initiative because of flu or coronavirus. The employer must be informed without delay when the employee is unable to work. If the employee either wilfully or negligently fails to report the illness immediately, the duty to pay wages shall commence from the time of reporting.
The employer may require the employee to provide a doctor’s certificate covering the entire period of absence before wages are paid if this is considered necessary for justified reasons.
A corresponding self-certification procedure also applies to the illness of a child under ten years of age. However, salary payment is limited to working days falling within 1–3 calendar days.
In other regards, the provisions of clause 17 of the Collective Agreement for the Commercial Sector shall apply to the illness of a child under the age of 10.
Joint recommendations of the unions (as of 19 March and until 30 June 2020)
The unions have agreed to instruct their members that workplaces will use all of the forms of flexibility provided by law and the collective agreement in order to facilitate and safeguard jobs during this time of crisis.