Agency work in Slovak Republic

Introduction

The basic premise presented in unison within the European as well as the Slovak labour market is the positive role that agency work plays in job creation and the following decrease in unemployment. The benefit of agency work for improving access of specific (disadvantaged) groups to the labour market is viewed just as favourably (Pichrt, 2013:55). Job seekers disadvantaged on the grounds of, for example, age or ethnicity, are also in terms of the Slovak Republic deemed to be the primary representatives of the group of the long-termunemployed, as well as a frequent example of the so-called poverty prone to intergenerational conflict. The reported advantage of agency work liesespeciallyin the opportunity to employ persons that would otherwise never be offered a vacancy by the host employer, unless there were some prior incentives such as reduction of costs and of the administrative burden arising from their employment.

There is astrong general view that sees positive sides of agency work in the opportunity to harmonise employee’sprofessional and family life, as well as in the opportunity to use it as a means of the EU-countries to fight the economic crisis. It should be noted that in the SlovakRepublic, nonetheless, based on insufficient legislation and negative practice on the labour market, agency work is becoming a problem. Gradual departure of employers from the traditional form of employment – employment relationship for an indefinite period – to agency work based on employment relationship for a definite period with a possibility of avoiding its existing restrictions, poses a threat to the principal function of labour law – protection of employees’ human dignity. Labour law protection of agency workers is made significantly more difficult, since their representation at the workplace in the form of trade unions or a works council is non-existent. Furthermore, they are governed by immense fear of losing their job, should they dare defend their rights against their employer or by legal means.

Legal framework of agency work in the SlovakRepublic

Legislation concerning agency work is contained in Act No. 311/2001 Coll., the Labour Code and Act No. 5/2004 Coll. on Employment Services. The Labour Code focuses chiefly on the basic regulation of agency work with regard to employees’ working conditions, legal relations between a temporary employment agency and an employee or between a temporary employment agency and a host employer. The Act on Employment Services contains basic conditions for foundinga temporary employment agency, obtaining a licence to performthe requested activity, and it also introduces obligations of a temporary employment agency in relation to state authorities. To refer to agency work, the Labour Code uses the term temporary assignment. This however represents a broader concept since apart from agency work it also covers the institute of temporary assignment by an employer that does not have the status of a temporary employment agency (Barancova, 2012:120). In labour law relation of temporary assignment of an employee to perform work for another employer, the legal position of an employer is held not only by the real employer of this employee or the recruitment agency, but also by the host employer. A labour law relation of temporary assignment of an employee to perform work for another employer is a legal relation consisting of three participants that therefore depends on the will of these three participants. Except for the employer and the employee, the third participant of this legal relation is an entity that is temporarily borrowing the employee, i.e. the host employer. A labour law relation of temporary assignment of an employee to perform work for another employer supposes two legal acts, namely a contract between the employee and the employer and a contract between the employer and the entity that is temporarily borrowing the employee, i.e. the host employer.

An employment contract between the agency and the employee concluded for a definite period states in particular - name and registered office of the agency, name and registered office of the host employer, purpose of temporary assignment to another employer, day on which temporary assignment comes into effect, duration of temporary assignment, type of work to be performed for the other employer, place of performance of work, wage conditions and conditions of unilateral termination of work performance before the lapse of the temporary assignment period. Relations between temporary employment agency and host employer are governed not only by the labour law (the Labour Code stipulates only certain content features of an agreement on temporary assignment concluded between the employer and the host employer concerning the particular temporary assignment, e.g. personal data of the temporary assigned employee, type of work, duration of temporary assignment, working conditions). The Labour Code does not expressly provide for the contract of the two employers that would include particular commercial law conditions,and therefore application of one of the Commercial Code contractual types can be supposed.

Employment relationship for a definite/indefinite period – non-existence of a synchronization ban

A specific feature of agency work in the SlovakRepublic is its unlimited duration. The so-called synchronization ban that is included in some other national legislations (in the past also in the Federal Republic of Germany) is not applied in the SlovakRepublic. The synchronization ban supposes maintaining agency workers’ employment relationship even after their current temporary assignment to an employer to perform work for a definite period has been terminated, i.e. conclusion of employment relationship for an indefinite period in agency work (Horecký, 2013:15).

In the SlovakRepublic, an employer or a temporary employment agency can assign an employee to perform work for another (so-called host) employer for an unlimited period of time. This is because there are no legal restrictions of temporary assignment’s duration.Such a temporary assignment is in fact carried out on the basis of an employment relationship for a definite period. The employee does not know how long he/she is to work for the particular host employer, neither how long his/her employment relationship is to last at all, since the duration of an employment relationship for a definite period is agreed for the time of temporary assignment to an employer.

Certain limitation set forth by the Act on Employment Services is that within 24 successive calendar months, temporary employment agencies are not allowed to temporarily assign an employee to a host employer more than 5 times. Should there be any further assignment, the employment relationship between the agency and the employee is automatically terminated and a new employment relationship between the former agency worker and the host employer, to whom the employee is temporarily assigned, arises.

The viewpoint for assessing positive and negative sides of agency employment in the Slovak Republic is therefore in the legal framework within which employees perform work on the basis of their temporary assignment to a host employer. The primary phenomenon is concluding an employment relationship for a definite period between a temporary employment agency that assigns an employee to perform work for a host employer and an employee. Naturally, also the traditional employer (not the temporary employment agency) can temporarily assign an employee to perform work for another host employer. However, this phenomenon is not as frequent. The duration of an employment relationship for a definite period is not expressly stipulated by any identifiable criterion and depends solely on the duration of the temporary assignment to a host employer. We point out that the Slovak law does not state any restrictions on the duration of a temporary assignment to a host employer and that such an assignment can in theory last for anywhere from several days to several decades. Employment contracts of employees state that the duration of their employment relationship is for a “definite period“ within the formulation “until the termination of works for the host employer”. And thus some examples taken from practice show that a temporary employment agency’sassignment of an employee to a producing company can at present already be exceeding an 8-year period.