Equal working and wage conditions of temporarily assigned employment agency workers
March 31, 2016
Employment agencies and employers using agency-contracted workforce (hereinafter referred to as the “Users”) shall ensure that working and wage conditions of temporarily assigned employees are not worse than conditions of Users’ other employees in comparable positions under provision of Sec 309(5) of Act No. 262/2006 Coll., Labour Code (hereinafter the “LC”). Unfortunately, the LC or any other executive regulation fails to define what particular working and wage conditions need to be provided to temporarily assigned employees if provided to Users’ employees.
Relevant working and wage conditions defined by Guidance Note No. 2/2016
The General Inspector’s Guidance Note No. 2/2016, which was recently issued by the State Labour Inspection Office (hereinafter the “Notes”), effective from 2 March 2016, determines relevant working and wage conditions to be considered by Regional Labour Inspection Offices when assessing whether provisions of Sec 309 (5) LC are being breached. According to these Notes, the relevant working conditions must meet these two requirements: Firstly, the LC must govern the possibility or obligation of employers to provide specific working conditions. Secondly, expenses borne by employers for providing such working condition must be exempt from tax under Act No. 586/1992 Coll., on Income Taxes. Further, the Notes list examples of working conditions that need not be provided to temporarily assigned employees in identical extent as to Users’ employees in comparable positions, e.g.:
1) Reimbursement of expenses not regulated by provisions of part VII LC (e.g. pocket-money in case of domestic business trips)
2) Contributions to meals in amounts exceeding limits for exemptions from tax under Act No. 586/1992 Coll., on Income Taxes.
3) Contributions to meals provided from social programmes or from Employers’ own profit
4) Financial contributions provided from social programmes run by Employers (e.g. loans, holiday allowances, re-settlement allowance etc.)
5) Life and pension insurance benefits
6) Anniversary, long service and retirement bonuses
7) Financial contributions exempted from tax under Act No. 586/1992 Coll., on Income Taxes, not relating to the employees’ exercise of work (e.g. housing allowances, transfer allowances etc.)
Readers should note that while these Notes were drafted by the State Labour Inspection Office, it does not represent a binding document in civil lawsuits and when the court is asked to rule on an agency employee’s potential claim we cannot presume how the court may interpret the actual extent of the applicable ‘working and wage conditions.’
As to relevant wage conditions, according to the Guidance Notes, all remunerations and compensations available for user´s employee in relation to the exercise of his or her work must be likewise secured to temporarily assigned employment agency worker.
Who is responsible?
Generally, it is a shared responsibility of employment agencies and the Users to comply with provision of Sec 309 (5) LC. Nevertheless, if the temporarily assigned employees feel that their rights to equal working and wage conditions are being violated, it is the employment agency´s obligation to take appropriate corrective measures. It should however be noted that usually the employment agency would be entitled to claim expenses for such corrective measures against Users (employers) consequently.
Although the Guidance Notes are primarily intended to unify processes at individual Regional Labour Inspection Offices when conducting their checks, the Guidance Notes may also serve employers as an important reference when assessing what working and wage conditions need to be provided to temporarily assigned employees. In addition, the Guidance Notes might serve as a useful tool for companies in financial difficulties searching for avoidable expenses in order to make necessary savings and which concurrently wish to avoid unnecessary claims from employment agency workers.
Mgr. Hedvika Klímová