Temporary and contract workers in Slovakia subject of Labour Code amendment

On 28 January 2015, at their 46th assembly, the National Council of the Slovak Republic overrode the veto of the President of the SR and passed again the amendment to the Act No. 311/2001 Coll. Labour Code (hereinafter the “Labour Code“) in the original wording.

The President returned the bill for renegotiation due to comments of employment organisations which feared an inadequate increase in costs as well as a restriction in their ability to respond flexibly to the demand for products and services.

The amendment introduced significant changes in the area of agency employment and temporary assignment of employees. Under the Section 40 (10) of the Labour Code, a user employer is a legal entity or a natural person to whom an employer or an agency of temporary employment temporarily assigns an employee in the employment relationship to performance of work.

Pursuant to the new provision of the Section 57 (2) of the Labour Code, an employee temporarily assigned to a user employer may be sent on a business trip only by the user employer. In terms of sending an employee on a business trip, the user employer is considered to be the employer of the temporarily assigned employee. This means that before being temporarily assigned an employee may be sent on a business trip by the agency of temporary employment or by the employer. However, as soon as the employee is temporarily assigned, they may be sent on a business trip only by the user employer.

The new amendment of the Labour Code has also introduced a restriction regarding a ban of temporary assignment to work, which the respective authority of public health care classified into the 4th category under the Act no. 355/2007 Coll. on Protection, Support and Development of Public Health and on amendment of certain acts. Pursuant to the transitional provision of the Section 252k, the ban shall not apply to the assignments agreed prior to 1 January 2015.

The new provision of the Section 58 (2) specifies the concept of presumption of temporary assignment, i.e. the situation when the parties agree on employee assignment, however they do not define this assignment as temporary. Pursuant to the amendment, unless an employer or a temporary employment agency do not prove otherwise, performance of work by an employee via whom the employer or the temporary employment agency performs activity for a legal entity or a natural person shall also be considered as temporary assignment if:

a) the legal entity or the natural person assigns work tasks to an employee, organizes, manages and monitors their work and gives them instructions in this respect,

b) the activity is performed mainly on the premises of the legal entity or the natural person and primarily with their work equipment, or if this activity is performed mainly on the equipment of the legal entity or the natural person, and

c) the activity is registered among the business activities of the legal entity or the natural person in the relevant register.

Provided that the conditions a) – c) are simultaneously fulfilled and it is not proved otherwise, the assignment is considered to be temporary.

Under the provision of the Section 58 (3), the user employer who has got a temporarily assigned employee shall not be entitled to assign this employee to other user employer.

Furthermore, the amendment stipulates the agreement on temporary employment with an employee of the temporary employment agency. In such case, the temporary employment agency determines the period of the employment, stating the date of its termination. However, this shall not apply to temporary assignment for the purpose of substitution of an employee on maternity leave, parental leave, leave immediately following the maternity leave or the parental leave, temporary incapacity for work, or long term leave for performance of a public function or a trade union function. Thus, the temporary employment agency shall exactly specify the date of the temporary employment termination in the employment contract.

Temporary assignment may be agreed upon for the period of maximum 24 months. Temporary assignment of an employee to the same user employer may be extended or renewed four times within the 24 month period. This shall also apply in case of temporary assignment of the employee by other employer or other temporary employment agency to the same user employer.

In case of breach of the provision regarding the maximum duration of temporary assignment, the employment relationship between the employee and the employer or the temporary employment agency shall terminate and a new employment relationship for indefinite period between the employee and the user employer shall be established. The user employer is obliged to issue a written confirmation of the employment relationship establishment within five days after its commencement.

In this respect, a new reason for employment termination has been included into the Labour Code, under which an employer, who is a temporary employment agency, may give an employee a notice even if the employee becomes redundant due to termination of temporary assignment under the Section 58 prior to the lapse of the period for which the temporary employment relationship was agreed to.

In regard to this reason for employment termination, the job offer obligation shall not be applied under the provision of the Section 63 (2) of the Labour Code, i.e. neither the employer nor the temporary employment agency shall be obliged to offer the employee another appropriate job.

The responsibility of the user employer to pay an equivalent salary to an employee is stipulated in the new provision of the Section 58 (10). In case that an employer or a temporary employment agency did not provide a temporarily assigned employee with a salary equivalent to the salary of a comparable employee of the user employer, the user employer is obliged to provide the employee with the salary or with the difference between the salary of a comparable employee of the user employer and the salary provided by the employer or the temporary employment agency within 15 days from the pay day agreed between the employer or the temporary employment agency and the temporarily assigned employee. The user employer is obliged to carry out the salary deduction under the Section 131.

With effect from 1 March 2015, a user employer is be obliged to keep a record of the assigned employees. It is obligatory to keep the record of working time, overtime, night work, active part and inactive part of the standby duty at the place of work performance of the temporarily assigned employee.

In addition, the amendment has also introduced a stricter restriction with regard to temporary assignment of an employee by an employer who is not a temporary employment agency. An employer may agree with a user employer on temporary assignment of an employee in employment relationship only due to objective operational reasons and only after three months from the establishment of the employment relationship.

More detail on each can be found http://www.employment.gov.sk/sk/

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