What is temporary agency work?
Temporary agency work is a tripartite employment relationship. Whereas regular employment relationships have two parties – an employee and an employer – a user undertaking as a third party is involved in the employment relationship in the case of temporary agency work. In the case of a temporary agency work relationship, the employer, i.e. the temporary-work agency, enters into an employment contract with a temporary agency worker, pursuant to which he or she temporarily sends the temporary agency worker to work in subordination to and under the supervision of a third party, i.e. the user undertaking.
Notification obligation in the case of temporary agency work
The employer has various notification obligations with regard to temporary agency workers:
- Pursuant to clause 28 (2) 91) of the Employment Contracts Act, an employer is obligated to notify an employee who is performing duties by way of temporary agency work of vacant positions in the user undertaking corresponding to his or her knowledge and skills with regard to which an employment contract can be entered into for an unspecified term. If the user undertaking has notified the employee of the vacant positions, the employer has no notification obligation. For example, an employment relationship for a specified term was established with a temporary agency worker to work in the user undertaking as a website administrator and at the same time, the user undertaking creates the position of a website administrator for an unspecified term in the undertaking. In the future, the employer is obliged to inform the temporary agency worker of this position. However, if the user undertaking has already informed him or her in advance of this vacancy, the employer has no separate notification obligation.
- Pursuant to clause 20 (1) 1) of the Employees’ Trustee Act, the employer is required to inform the undertaking’s trustee of temporary employees if the changes and planned decisions have a significant effect on the employer’s structure and staff. For example, the employer shall provide information on how many temporary agency workers and in which positions work in the user undertaking.
In practice, however, there are cases where temporary-work agencies seek to prevent temporary agency workers from taking up employment at the user undertaking by imposing restrictive conditions in their employment contracts and contracts concluded with the user undertaking. Such conditions which are unfavourable for the employee may be contained in the contract between the temporary-work agency and the user undertaking, in an employment contract concluded between the worker and the temporary-work agency or in a collective agreement applied to the employment relationship. However, the temporary-work agency’s right to obtain reasonable compensation from the user undertaking for the services provided by the temporary agency workers in connection with the assignment, recruitment and training of temporary agency workers cannot be regarded as an unfavourable condition precluding the conclusion of an employment contract. Considering the temporary nature of temporary agency work which makes entering into an employment contract for a specified term easier (subsection 10 (2) of the Employment Contracts Act), temporary agency work may be considered a more precarious form of employment for an employee with regards to stability of employment. Therefore, if a temporary agency worker has the opportunity to enter into a more stable employment relationship, they may not be prevented from doing so.
Conclusion of an employment contract with a specified term.
Conclusion of an employment contract with a specified term is regulated by section 9 of the Employment Contracts Act. An employment contract entered into for a specified term may be concluded between an employer and an employee if it is justified by good reasons arising from the temporary fixed-term characteristics of the work, especially a temporary increase in work volume or performance of seasonal work. In the case of temporary agency work, an employment contract can also be concluded for a specified term with a temporary agency worker if it is related to the temporary nature of the work of the user undertaking. Therefore, an employer can conclude an employment contract with a temporary agency worker for a specified term in two cases:
- an employment contract may be entered into for a specified term if it is justified by reasons arising from the temporary fixed-term characteristics of the employer’s work (for example, an employer needs a substitute or work volume has temporary increased);
- an employment contract may be entered into for a specified term if it is justified by reasons arising from the temporary fixed-term characteristics of the user undertaking’s work (for example, the user undertaking needs an employee who performs duties as a temporary agency worker to substitute another employee or the user undertaking requires additional workers for seasonal work).
Restriction on consecutive entry into and extension of employment contract for specified term
Section 10 of the Employment Contracts Act provides a restriction on the conditions of consecutive entry into and extension of employment contract for specified term by an employer for the protection of employees. For temporary agency work, the restriction on consecutive entry into and extension of employment contract for a specified term shall be applied separately to each user undertaking. For example, if an employer concludes an employment contract for a specified term with a temporary agency worker for the same user undertaking more than twice, the employment contract shall be considered to have had an unspecified term from the outset. If a temporary agency worker performs work under an employment contract with an unspecified term for different user undertakings, the restriction on consecutive entry into and extension of the employment contract for the specified term shall be considered separately for each user undertaking.
Equal treatment of temporary agency workers
Pursuant to subsection 111 (2 1) of the Equal Treatment Act, employees who perform duties by way of temporary agency work shall not be subjected to less favourable conditions of occupational health and safety, working and rest time and remuneration for work than those applied to comparable employees of the user undertaking. Employees who perform duties by way of temporary agency work are entitled to use, during the period of performing duties, the benefits of the user undertaking, first of all meal, transportation and childcare services, on the same conditions as comparable employees of the user undertaking.
‘Comparable employee’ means an employee working for the same employer, who is engaged in the same or similar work, due regard being given to the qualifications and skills of the employee. Where there is no comparable employee employed by the same employer, the comparison shall be made by reference to the applicable collective agreement. Where there is no collective agreement, an employee engaged in the same or similar work in the same region shall be deemed to be a comparable employee.
Job mediation is the provision of work to a person seeking employment and the necessary labour to an employer.
Job mediation is regulated by:
- the Labour Market Services and Benefits Act (sections 38 and 391);
- the General Part of the Economic Activities Code Act.
Pursuant to section 391of the Labour Market Services and Benefits Act, an undertaking engaged in job mediation shall not charge a fee for job mediation from a person wishing to find a job. Similarly, an undertaking engaged in job mediation shall not charge a fee from an employee for sending the employee for temporary agency work.
A legal person governed by private law and a sole proprietor who is engaged in job mediation or enters into an employment contract with a person to send the person for temporary agency work for the purposes of subsection 6 (5) of the Employment Contracts Act shall submit a notice of economic activities to the Register of Economic Activities prior to commencement of economic activity.
If you have been the victim of fraud, you can get help from the Labour Inspectorate or the police. If a job mediation undertaking has unfairly charged you, you can turn to the Labour Inspectorate. The Labour Inspectorate exercises state supervision over private job mediation service providers and can prohibit the economic activity of a job mediation service provider if it has established a significant violation (e.g. violation of the prohibition on charging remuneration). The Labour Inspectorate can also issue precepts, for example, if an undertaking engaged in job mediation has not submitted a notice of economic activity or if false information has been entered into the register of economic activity. If a job mediation agency has charged you and then not provided you with the work they promised, it may be a fraud. In this case, you can contact the police or the prosecutor’s office. In order to detect fraud, documents that provide evidence are required (e.g. payment checks, receipts, contract).
Temporary agency workers and representation of employees
When evaluating the need for working environment representatives, temporary agency workers are taken into account in the user undertaking – for example, employees shall be provided the opportunity to elect a working environment representative if the enterprise has 3 so-called own employees and 8 temporary agency workers. However, it is not necessary to organise the election of representatives in a temporary-work agency with 3 own employees and 30 temporary agency workers, as they will elect their representative in the user undertaking.
Occupational health and safety of temporary agency workers
Pursuant to subsection 12 (1) of the OHSA, the user undertaking shall ensure that a temporary agency worker complies with the occupational health and safety requirements at the user undertaking.
Occupational health and safety of temporary agency workers shall be ensured equally to regular workers.
Pursuant to subsection 12 (2) of the OHSA, a user undertaking shall not allow a temporary agency worker to work if he or she lacks the necessary professional knowledge or skills or knowledge about occupational health and safety.
The user undertaking shall carry out the supervision and training of the temporary agency worker. Considering that training on occupational health and safety shall take into account the qualifications and experiences of an employee, the temporary-work agency and user undertaking shall exchange information about the employee before the start of the training. It is also important that the supervisor knows how to communicate with the employee he or she is training and give him or her guidance in an understandable manner. In addition to other obligations, the user undertaking is obliged to acquire work clothes and personal protective equipment for the temporary agency worker.
If a labour inspector visiting the undertaking discovers violations of occupational health and safety requirements related to a temporary agency worker, the user undertaking is issued a precept.
Pursuant to subsection 131 (1) of the OHSA, an employer shall organise a medical examination for an employee whose health may be affected by environment hazards or nature of work. For example, exposure to noise or vibration, working in a constraining posture, work with display screen equipment for more than half of the working time.
Pursuant to the second sentence of subsection 12 (1) of the OHSA, the user undertaking shall organise medical examination of an employee in the case of temporary agency work. The law does not prevent the temporary-work agency from entering into a special agreement with the user undertaking, pursuant to which the user undertaking shall organise the health examination at the expense of the temporary-work agency. In this case, the temporary agency worker undergoes the exact same medical examination as the user undertaking’s own employees, the health examination meets the expectations of the user undertaking and the employees are treated no differently. At the same time, the user undertaking does not have to bear unreasonable costs.
Registration and investigation of occupational accidents and diseases
Pursuant to subsection 24 (1) of the OHSA, an investigation conducted by the employer shall reveal the circumstances and causes of occupational accidents and diseases. However, subsection 12 (1) of the OHSA also places this obligation on the user undertaking, meaning that if a temporary agency worker gets into an occupational accident, the user undertaking for whom the temporary agency worker was performing work at the time of the accident shall register the occupational accident and ascertain all circumstances.
Pursuant to law, the employer shall present the investigation report to the injured party or a person representing his or her interests and the Labour Inspectorate. The report provides, among other things, the measures taken by the employer to prevent a similar occupational accident and disease. As the report on the accident that a temporary agency worker was involved in is prepared by the user undertaking, the accident report shall also be forwarded to the employee’s actual employer, i.e. the temporary-work agency.