1 semester 8 lesson

Employment law, chapter 20

Lene Ravn Rasmussen, lfrr@iba.dk

Plan for today

Introduction employment law
Collective agreements the Danish model
Individual agreements

Regulation non-discrimination etc.

Salaried employers act
Contracts
Absence
termintion

Questions
Next time

Introduction to employment law

An employee puts his labour at the disposal of an
employer on a regular (exclusive) basis, which in turn
pays the employee wages for the work performed
Normal starting point: The contract of employment
Narrowed considerably by mandatory law on e.g. holiday,
equal treatment etc.
Also narrowed considerably by collective agreements between
employers and employees associations on subjects like
minimum-wages, working conditions etc. within certain areas
of trade
In Denmark we have no law setting minimum wages!

Industrial Relations Law = the

collective labour law
General agreements, master agreements and local agreements
General agreements
Agreements between associations
General trade agreements are not applicable to individual employers, if they are not within an association which adheres to
such an agreement. Individual employers can however make an adoption-agreement directly with the union.

Master agreements
Made between the overall unions often consists of rules regarding notice of termination, renewal of general agreements,
strikes and the fundamental right for the employers to manage and distribute work

Local agreements
Made between the individual employers and an employee representative

The agreements are so-called no strike-agreements. Meaning that you will not do anything
to make a dispute as long as the other party adheres to the agreement
But you are allowed to do the things in your contract e.g. terminate your employment, if you are unhappy
Of course you cannot get fired for exercising your right under a collective agreement, if it is lawful!
In case of a party breaking the collective agreeement, they might be penalized by the Industrial Court (not
within the normal court system) with penalties (fines on a daily basis, until you stop breaching the
collective agreement the earnings from the fines is given to the aggrieved party)

Conflicts
Main rule: You have the right to intigate industrial conflicts
For the employee:
Strike (omission of work)
Blokade (Resistance against taking up employment this does not mean that you are allowed
to stop someone from entering the workplace of the employer. It means that members of a
certain association is not allowed to take up employment at that specific employer)

For the employer:

Lockout (exclusion of work)
Boycott (resistance against employing)

Limitations:
Not during a settlement period of a collective agreement
Certain employees do not enjoy the right to strike. These are public servants who has their
rights governed by civil servants legislation. Example: police officers

How to solve conflicts

1. negotiation
First between the company and a representative from the
employees
Next: mediation between the relevant organizations

2. the Industrial Court

In case the parties cannot agree on a new collective
agreements negotions will be made in a conciliation
institute if the parties still cannot reach a settlement
the government might interfere and pass legislation
instead.

The individual contract

Nearly every contract is under these rules:
Law on holidays
Law on equal treatment

Most contracts are subject to special legislation of the

Salaried Employment Act (Funktionrloven)
You can agree on the status as a salaried worker but
you cannot deny a salaried worker the rigths stated in
the salaried employment act.

Salaried employers
Covers salaried employees
Persons who in full or in substantive part are engaged in buying and
selling activities or in office work or equivalent warehouse operations
Persons who in full or in substantive part are engaged in technical or
clinical services not pertaining to trade and industry, and other
assistants performing comparable work
Persons whose work consists in full or in substantive part of managing
or supervising on behalf of the employer the execution of the work of
others

Also covers fixed-term employments within the

abovementioned categories (except the provisions on
termination, naturally)
Only applies if the employee in employed for an average of at
least 8 hours per week, and the employee is hired in a way,

Question
Is a 15-year old office messanger who works for two
hours every day after school a salaried employee?
What if it was only one hour every day after school?

Employment clauses
Are made to protect companies! An alternative could be stay on bonuses or
prolonging the notice from the employees
Employee non-solicitation clauses
The employee is obligated to pay a contractual penalty if any more of the employers staff follow
the employee to a new employer within a certain time. Could be considered invalid in whole or
partly according to the Danish contracts act section 36

Non-competition clauses
Section 18 of the salaried employees act. It is stated that non-competition clauses are only
binding if the employee receives compensation amounting to at least 50% of the salary at the
time of retirement

Customer non-solicitation clauses

Section 18a of the salaried employees act. Only valid if the employee receives compensation

No-hire clauses
Agreements between businesses. The employee is entitled to be informed and get compensation.

Who can be employed?

Free choice
Limitations to freedom of choice
Limited by the equal treatment act
You may not discriminate based on gender or status, neither indirectly nor
directly
Directly: I will not hire women
Indirectly: I will not hire those, who are able to give birth
It also restricts the freedom of choice in the advertisement for labour in the way
that you are not allowed to write that you prefer a specific gender

Limited by the Non-Discrimination Act

Meaning, you may not discriminate based on race, colour of skin, religion,
political persuasion, sexual orientation or origin probably not age either
You are not even allowed to ask questions in this regard at job interviews!

Question
Axel has an add in the newspaper. The add has the
following wording: Inspirational job offer! Danish
speaking people will be prefered
Is this add OK?
What if the add had said: Danish people will be prefered?

The employment contract

MR: No formal requirements oral agreements are binding
The Act on an Employers Obligations to Inform Employees of the Conditions
Aplicable to the Employment Relationship Act. No. 240 of 17 March 2010 is based
on an EU Directive the rules are therefore largely identical throughout the EU.
Information an employer has to give the employee (examples):
Names and adresses of the employer and employee
Location of place of work, title, holiday rights, pay, working hours etc.

Which employees are covered by the rules:

MR: all employees

E1: seamen
E2: Employment lasts less than 1 month
E3: Employment lasts less thant 8 hours work per week
E4: employees who have at least the same protection under collective agreements

What happens if the employee does

not get the information?
If excusable omission compensation from DKK 0-1,000
Other omissions without specific effect DKK 2,500-5,000
If the omissions lead to conflict or risk of conflict DKK
7.500-10,000

Questions
Thomas was hired as at the advertising agency "Colours"
from June 1st 2014. Thomas had no written contract - it
was not necessary his boss said. After the first month of
employment, Thomas got his first salary, but the salary
was DKK 3,000 lower than agreed.
Thomas got mad - what can he do?

Duties
The employee
Perform the work agreed to in accordance with the instructions of the employer
Must be with reasonable skill and care, in an ordinary pace and at agreed place
The employer cannot ask the employee to do something at risk to the employees life, honour or welfare
Working environment act ss. 50-51: You are obligated to have 11 hours of continuous free time every day and 1 day
completely free from work per week

Loyalty towards the employer

Non-competition clauses (limited by Salaried Employments Act s. 18)

The employer
Needs to pay you for your work
Time wages (calculative)
Performance wages
Commission (succes fee)

Overtime
Bonus
Perks (free car, internet, phone etc)

Needs to adhere to the Equal Pay Act (non-gender based factors is the only thing, where you can
differentiate)

Absence of the employee

Holiday
Act on holidays applicable on all employees defined as Persons who
receive consideration for personal work in an employment relationship
Cannot be deviated from in favour of the employer

You earn 2,08 days of paid holiday for every months employment in a calendar
year (year af accrual)
Always right to 25 days of holiday (not necessarily paid)
Must be used in the following calendar year from 1 May to 30 April and must be for 5 days
a week. You have the right to a main holiday period of 15 days (3 weeks, since you dont
count weekends)
The employer decides on your exact holiday dates, but cannot prevent you from taking a
holiday in certain weeks, if it does not effect the operation of the business

Holidays begin at work start on the first day and ends at the end of the last
day.

Absence of the employee

Lawful absence
Sickness
Salaried Employees Act s. 5
If not intentional or gross negligence, then it is lawful, meaning that you can get your normal wages
as if you had been at work
The employer can demand medical documentation (but at his own expense)

Maternity leave Act

Any woman has a right of ansence from work on grounds of pregnancy from the point in time
where four weeks absence remain until the estimated time of birth
After birth, the woman is entitled to take the first two weeks off. Afterwards she is entitled to
12 weeks of absence
The father has a right for 2 weeks of continuous absence within the first 14 weeks after birth
Upon the expiration of the 14th week, the parents each have a right to absence for 32 weeks
postponed absence (up to 13 weeks) has to be taken before the child becomes 9 years old

Termination of the contract

From the employee
Free right to termination (no reasons needed).
Notice:
Salaried Employees Act: 1 month from the end of the current month
If the employer has committed a fundamental breach of contract (e.g. by refusing to pay your salary), you are allowed to terminate
employment immediately. You still have claim for the duration of your normal notice period

From the employer

MR: Free right, but you are not allowed to breach law or collective agreement and it has to be because of the
employees or the companies relations (you cannot fire a woman because she is pregnant, you cannot fire someone
because of his age or colour, you cannot fire someone simply because you dont like him etc)
You are not allowed to fire someone because of the union membership (or lack thereof)
Employee representatives have special protection

Notice:
Salaried Employees Act: Up to 6 months notice. Only one months notice within the first 5 months of employment
The parties may agree to a probationary period of up to three months during which the employee can be terminated from employment with 2
weeks notice

If the employee commits a fundamental breach of contract (e.g. by telling company trade secrets to a third party), you can terminate
their contract without notice!

If you fire someone, when they are pregnant or on maternity leave, you have to prove that it was not because of
their pregnancy!

Cancellation of the contract

Cancellation from the employer:
If the employee commits a fundamental breach of contract (e.g. by telling company
trade secrets to a third party, stealing from the company, not coming to work
without a reasonable explanation), termination can be done without any notice!

Cancellation from the employee:

If the employer has committed a fundamental breach of contract (e.g. by refusing
to pay the agreed salary), the employee is allowed to terminate employment
immediately.

Question
On October 20, 2013 Marie was employed by the company "Furniture A/S". The advertisement was
worded as "accounting, purchasing and telephone service and casual tasks as needed." The
remuneration was "salary" and working 37 hours a week.
Marie had been repeatedly late for work and her boss had raised this with her - Marie had promised
improvement, but it had not helped. 12 December 2013, Marie stayed home to bake Christmas
cookies - she thought she needed a day off but she had not notified the workplace. When her boss
found out Marie received a written warning that if something similar happened again she would be
expelled immediately. On January 9, 2014 Marie was in a bad mood and decided not to go to work.
She didnt inform her boss. The following morning, she was expelled.
Marie's union intervened and demanded that Marie had earnings equivalent to a notice period of 3
months. The company declined.
1.1 Is Marie a salaried employee according to the Salaried employees Act?
1.2 Is the dismissal justified?
1.3 Had it made any difference if Marie December 20, 2013, had informed her boss that she was
pregnant?

Question
Christian owns and manages a manufacturing company
in Kolding. He also plays soccer on a relatively high level.
Christian has received an offer to play professional
football in Liverpool on a three year contract and
therefore Christian need to hire a managing director who
can take care of business. Christian is single and he could
well imagine a young, unmarried woman as the new
managing director, but is unsure whether he should write
this in the advertisement - his good friend Kurt believes,
however, that it is no problem, as long as it is not a man
he specifically would prefer in the advertisement.

Question
Julie had been employed as a seller in the company "Top
Fashion" for 7 years. She knew the business well and she
decided to start a business of her own instead and
therefore she gave her notice to Top Fashion. In her
employment contract however it was stated that Julie
upon termination of employment was not allowed to work
in a competing business for 2 years.
Is such an agreement valid?
What requirements must such an agreement meet?

Next time
Credit agreements and guarantees, chapter 10 and 18