Member Article

In these difficult times, many employers are facing problems related to low demand for their services and goods and the resulting lack of work to be assigned to their employees.On the other hand, there are also employers which are currently lacking employees (for example, due to the closure of schools, which caused many employees to stay at home with their children or because employees are kept in quarantine etc.). One of the solutions to this problem for these groups of employers might be the temporary posting of workers from an employer which currently has a “surplus” of employees (for whom the employer has no work) to an employer which does not have enough employees. Of course, this may not be the right option for all types of business activities, but only in the businesses where employees can be trained relatively quickly to do the work.

Conditions of Temporary Posting

Temporary posting of an employee to a so-called user employer can be agreed upon on the basis of objective operational reasons on the part of the employer. We believe that in the current situation, where an employer objectively does not have work for its employees as a consequence of the COVID-19 pandemic, these objective operational reasons exist. Only an employee with an employment contract, who has worked for the employer for at least 3 months, may be posted to a user employer. This means that it is not possible to temporarily post workers working on the basis of agreements outside the employment relationship (such as the agreement on student work, or agreement on work activity).

Temporary posting of an employee is based on the following:

• a written agreement on the temporary posting concluded between the employer (which is posting an employee) and the employee, and
• a written agreement on the temporary posting concluded between the employer (which is posting an employee) and the user employer (to which the employee will be posted).
  
  

These agreements must contain the details prescribed by the law.

Performance of Work and Payment of Wage During the Temporary posting

During a temporary posting, the user employer gives work tasks to the temporarily posted employee and organizes, manages and controls the employee’s work. For this purpose, the user employer also gives instructions to the temporarily posted employee, creates favourable working conditions and ensures occupational safety and health protection.

However, the temporarily posted employee continues to be paid his or her wage, wage compensation and reimbursement for travel expenses by his or her (usual) employer, i.e. not by the user employer. Nevertheless, the employee’s s employer may agree with the user employer on compensation for these expenses. This type of temporary posting should not be, however, made for consideration (for a fee), as only temporary-work agencies with the relevant permission are authorized to carry out business activities related to temporary posting (i.e. with the purpose of obtaining a financial profit from these activities).

In the case of temporary posting, the working conditions (including the wage conditions) and the terms and conditions of employment of the posted employee must be at least as favourable as those offered to a comparable employee of the user employer. This means that if an employer posts its employee to another employer due to a lack of work, the former must provide the employee with at least such working conditions (including the wage and other benefits) as those provided by the user employer to its employees in the same or comparable working position. This may mean that the employer may have to pay a higher wage to the employee (for which, however, the employer may be compensated by the user employer).

Hence, the employee’s wage should continue to be paid by his or her regular employer. However, if this employer does not pay the temporarily posted employee a wage that is at least as favourable as that paid to a comparable employee of the user employer, the user employer “guarantees” this obligation, so to speak. In this case, the user employer is required to pay this wage to the employee, or pay the difference between the wage of a comparable employee of the user employer and the wage paid to the employee by the employee’s regular employer, as the case may be.

Temporary posting is also subject to other restrictions and conditions, which are not discussed here for the sake of keeping this information brief and simple. This post was prepared in March 2020 and does not provide comprehensive legal advice, but only a brief summary of the relevant legislation.