Authorisation agreement with a minor

Is it possible to enter into an authorisation agreement with a minor?

According to the practice of the Labour Inspectorate, if a contract concluded with a minor is titled an authorisation agreement and an entry is made in the employment register pursuant to which work is performed under another law of obligations contract, closer examination of the nature of the contract reveals that it is an ordinary employment relationship under an employment contract. This means that a minor or young person who commences work is unequivocally subject to the management and control of the adult who employed him or her. In general, there can be no other way, because a young person has no work experience and lacks the knowledge and skills necessary to perform a specific task. Therefore, he or she cannot provide a service independently, i.e. perform an authorisation agreement.

Legally, both an authorisation agreement and employment contract are agreements under the law of obligations where one party undertakes to do something for the other party. An employment contract is also, in essence, a subtype of an authorisation agreement, which is regulated by a special law in order to protect an employee who is not completely free in his or her decision to create value. The general principles of private law, which are regulated in Estonia in the General Part of the Civil Code Act, apply to all relations under the law of obligations. This law determines, among other things, the age from which a person has unrestricted active legal capacity and the time until for example parents are responsible for a young person, meaning until he or she still has restricted active legal capacity. Among other things, restricted active legal capacity means restrictions to the right to entry into contracts, i.e. to conclude a contract independently. Therefore, the contract of a young person under the age of 18 shall be approved by the parent or another legal representative.

While for an employment contract it is clear that an employee is subject to the management and control of the employer and the employer’s loyalty to the employee includes, among other things, that the employer is obliged to teach and train the employee, the preconditions for performance of mandate are different.

The Law of Obligations Act presumes that the person performing a mandate is a professional in their field who provides a service and performs a contract personally, acting similarly to an undertaking.

In practice, there are situations where it is also possible to enter into an authorisation agreement with a minor. For example, with a 16-year-old musician who comes to perform with his or her instrument. Why not? Presumably, the mandator who employed the young person cannot give him or her any instructions or guidance, meaning that the mandator only provides the minor with a time and a place for performing and pays him or her or does not pay, if it has been otherwise agreed and the chance to perform is considered remuneration.

It is also entirely possible to provide a service that is free of charge under an authorisation agreement. However, in the case of employment relationships, the law always requires the payment of remuneration.

Most of the written agreements concluded with minors that are submitted during the labour inspector’s visit are ordinary employment contracts in terms of content, i.e., they include:

1. specific tasks, including, for example, the work volume (e.g., the minimum amount of berries to be picked during the day);
2. fixed work time;
3. remuneration for the work performed.

Clarification of the circumstances has often revealed that there is in fact a specific person who teaches the young person how to perform the work, gives him/her ongoing guidance, provides tools and personal protective equipment (work gloves), and also checks the outcome of the work. In such conditions, there can be no chance that it is an authorisation agreement or contract for services. This is the most common employment relationship, i.e., an employment contract. Even if nothing is put down in writing.

In the case of oral agreements, it is also worth noting that the Employment Contracts Act always presumes an employment relationship when work is performed for which remuneration is usually paid, i.e. this is the primary premise on which the labour inspector makes decisions. The labour inspector may evaluate or re-evaluate the nature of a contract in the course of a monitoring procedure or misdemeanour procedure if another agreement under the law of obligations has been concluded between the parties.