Detailed content of the emergency provisions for inclusion in the collective agreements for the commercial sector
The changes to the collective agreement negotiated by the Finnish Commerce Federation and PAM took effect on 19 March 2020. The changes are available for use immediately during ongoing and future co-operation negotiations, as well as for future lay-off notices and lay-off notices that have already been issued.
The changes apply to all collective agreements between the Finnish Commerce Federation and Service Union United PAM, and the legislative amendments also apply to employees beyond the scope of the collective agreements (such as senior clerical staff).
Temporary emergency provisions in collective agreements and employment legislation
Cancellation of employment during the probationary period (as of 1 April)
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)
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)
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 (as of 19 March, with the most recent changes as of 1 April)
The provisions concerning co-operation negotiation periods are determined in the scope of application of the collective agreements betweenthe Finnish Commerce Federation and PAM 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 March, 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.
For employees who are not covered by the collective agreements for the commercial sector, the provisions on co-operation negotiation periods are determined as follows:
As of 1 April, a negotiation proposal can be issued with a five-day notice period.
As of 1 April, co-operation negotiations must be held for five days if the negotiations concern lay-offs, irrespective of the length of lay-off.
An agreement can always be made on different means of satisfying the negotiation obligation and the negotiation period.
The latest changes take effectimmediately. The employer can, therefore, offset the negotiation period that has already elapsed.
Example 2: The employer began co-operation negotiations on Friday 27 March. The co-operation negotiations concern lay-offs lasting longer than 90 days, and the lay-offs will affect more than ten employees, so the negotiation period before the legal amendment that took effect on 1 April was six weeks. According to the emergency provision that took effect on 1 April, the negotiation period for all lay-off negotiations was reduced to five days. The employer may end the co-operation negotiations immediately on 1 April, as the five-day negotiation obligation has already been satisfied. The final negotiation meeting can be held on 1 April, and the minutes shall record that the negotiation obligation has been satisfied. After this, the employer may decide on lay-offs and issue notices of lay-off.
Notice period for lay-offs (as of 19 March, with the most recent changes as of 1 April)
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 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.
If the employer has issued a notice of lay-offs to its employees before the law took effect on 31 March, the notice period will be reduced in these cases to five days from the entry into force of the law. If the employer issued notices of lay-off observing a longer notice period before the law took effect, the employer can reduce the notice period to five days after the law took effect. However, the employer must notify the employees of the shorter notice period no later than the day before the lay-offs begin.
Example 3: An employer issues notice of lay-off to an employee on 23 March. By the time the emergency provision entered into force on 1 April, more than five days of the notice period had already elapsed. The employer may inform the employee on 1 April of the shorter notice period, and the lay-off may begin on 2 April.
For employees who are not covered by the collective agreements for the commercial sector, the provisions on lay-off notice periods are determined as follows:
As of 1 April, the notice period for lay-offs is five days. In practice, this means senior clerical staff and employees not covered by the Working Hours Act.
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 4: An employer issues a negotiation proposal on 1 April. Unless otherwise agreed, the co-operation negotiations begin on 4 April, three days after the negotiation proposal was issued. (The date on which the proposal was issued is counted in the total.) Negotiations must be held for four days unless otherwise agreed. The co-operation negotiations end on 7 April, after which the employer may make decisions. Notices of lay-offs can, therefore, be issued as soon as the negotiations are concluded on 7 April.
The first day of lay-off will be 12 April if a five-day notice period is observed. If a local agreement is reached to reduce the lay-off notice period to three days, the first day of lay-off will be 10 April.
Example 5: An employer issues a negotiation proposal for co-operation negotiations on 18 March. As no other agreement was made between the parties, the intention was to begin co-operation negotiations on 23 March, five days after the negotiation proposal was issued. On 19 March, the employer may issue a new negotiation proposal that observes the shorter, three-day notice period. The co-operation negotiations begin on 22 March, three days after the new negotiation proposal is issued. The employer may use the old negotiation proposal as a template for the new negotiation proposal, but the date and time of the negotiations must be updated, as well as the date on which the negotiation proposal was issued.
Example 6: An employer gave notice of lay-offs on 31 March. The notice of lay-offs was issued in compliance with a seven-day notice period, and the lay-offs were due to take effect on 7 April, according to the notice of lay-offs. Under the new provisions, the employer may issue a new notice of lay-offs on 1 April complying with a five-day notice period. As such, the lay-off begins on 6 April, irrespective of the original notice of lay-offs. The new notice of lay-offs automatically supersedes any prior notices of lay-offs.
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.
Alteration and publication of the work shift plan (as of 19 March)
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)
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)
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.
Validity of the emergency provisions
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 30 June – the shorter periods can be applied, even though the co-operation procedure extends beyond the expiry of the agreement.
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 30 June – even though the notice period for lay-offs extends beyond the expiry of the emergency provisions.
The Finnish Commerce Federation will provide separate guidance if the application of the emergency provisions ends earlier than expected.