Upskilling the workforce is a “hot topic,” and a challenge that many businesses strive to tackle. The competence challenges are also becoming a serious societal problem in the sense that unemployed people are excluded from working life due to lack of or inadequate competence. However, competence development in the workforce is not only commercially and socially appropriate, but also a legal obligation for both employer and employee.
Competence raising is far up on the agenda of both society and many businesses. Several have identified that they have a workforce that does not meet today's needs or a projected future need. The question for many now is how to handle the gap between competence and needs.
I then find it legitimate to remind that both businesses and employees have legal obligations in relation to making sure that the competence is correct.
The Working Environment Act regulations of competence development
The legal basis for claiming that businesses and employees have duties is primarily found in section 4-2 of the Working Environment Act, which states, among other things, that the employer in the design of the individual's work situation must ensure that professional and personal development is facilitated through work, and that sufficient information and training must be provided so that the employee is able to perform the work when changes occur that affect his or her work situation. The same provision also stipulates that employees and their union representatives must be kept continuously informed about systems used in planning and execution of work, and that the employer must provide the necessary training to familiarize themselves with the systems. The extent to which employers' duties here extend will depend on a specific assessment.
The obligation to develop competence rests on both employee and employer
A collective agreement is an agreement on working conditions and wages or other working conditions, entered into between a trade union and an employer or employers' union. Several key collective bargaining agreements regulate matters related to the development of skills for the employees, but I naturally consider this purpose to be based on the main agreement between LO and NHO.
The main agreement stipulates that the individual company must present its goals for future development as a basis for mapping the need for competence. It is the company's responsibility - but in collaboration with the employees - to undertake the survey and initiate any measures. The survey is usually updated once a year. Where there is a gap between the company's current competence and future needs, this is assumed to be covered by relevant training measures or by other means. At the same time, it is emphasized that both the company and the employees are responsible for ensuring that any skills gap is covered satisfactorily.
The right of management as a tool for competence development
Employers' management right has traditionally been described as the employer's right to hire and terminate employees, to manage, distribute and control the work. In other words, in order for the employer to facilitate continuous competence development in line with the duty and the needs of the business, including imposing relevant competence measures on the employees, it is the employer's management right which together with laws and agreements constitutes the tool.
The Board of Directors has overall responsibility for ensuring that the workforce has the right expertise
The Company's Board of Directors has, in accordance with the Companies Act, both administrative and supervisory responsibilities. The management responsibility lies with the overall responsibility for defining plans for the business, including that the business has a sound organization with a competent staff. The board must therefore take its share of the responsibility for ensuring that the workforce has the right expertise in the sense that the board should ensure that the topic is sufficiently high on the administration's agenda.
The consequences of breach of duty also have a legal side
While in the HR environments there is a special focus on competence development with a view to commercial and operational adaptation to the future, and in the rest of the society a race is underway to ensure that the population's competence matches the challenges of society and future needs, I would like to emphasize here that employers who do not follow up on their duties not only risk a poor working environment and outdated labor, but also legal consequences. Adapting to future needs often requires changes in the business - for example, reorganizations or downsizing. In this picture, documented competence-raising measures at the employee level become absolutely essential. There are plenty of examples where the most experienced in the business score poorly on competence. Then the risk that the change processes will be demanding to carry out according to the rules is great, and the legal challenges will quickly arise.
Jeg heter Lene Sakariassen og jeg jobber som advokat i Advokatfirmaet PwC. Her leder jeg firmaets avdeling for forretningsjus i Oslo, et tradisjonelt fagområde som på mange måter også er beskrivende for min faglige kompetanse og bakgrunn.
Jeg har mange års erfaring som rådgiver innenfor ulike områder av forretningsjussen, men har opparbeidet meg særlig bred kompetanse innenfor arbeidsretten, selskapsretten og kontraktsretten. Nå kan man kanskje spørre seg om disse temaene er relevante på Norges Skatteblogg, men slik vi ser det er temaene nært tilknyttet hverandre, og dette skal jeg illustrere nærmere i mine kommende blogginnlegg.
My name is Lene Sakariassen and I work as a lawyer and partner in Advokatfirmaet PwC. I am currently heading PwC Legal services in Oslo, a department comprising business law in general, including corporate law, labor law, contract and commercial law, GDPR and IP.
I have more than 16 years of experience as a lawyer and legal advisor within a broad spectrum of business law, serving both national and international clients from both private and international sector.