The Act Amending the Act on the Employment of Temporary Workers and Certain Other Acts entered into force on June 1 2017. It introduces important changes and limitations concerning temporary work and aims to improve the temporary work market and counteract abusive practices. The amendment concerns all employers that hire temporary workers.
18-month limit
Following the amendment, employers can use the same temporary worker for no more than 18 months over a period of 36 subsequent months, regardless of whether the temporary worker is recommended to the employer by a single or multiple work agencies.This rule aims to counteract previous market practices of recommending the same worker to the same client for subsequent 18-month periods by using multiple agencies. Circumvention of the limits imposed by the amendment by entering into a personnel outsourcing agreement will now entail material risks, as exceeding the limits may result in the establishment of an employment relationship directly between the employer and the temporary worker.
Temporary worker record
The amendment requires employers to keep an individual record of temporary workers in written or electronic format, including their start and end dates during the 36 months. The record should be
maintained for the following 36 months.The record aims to enable the enforcement of the temporary worker time limit and facilitate audits carried out by labour inspectors. In practice, maintaining the records requires coordination between the employer and the temporary work agency. It is not enough for the agency to maintain said data instead of the employer.
Remuneration and bonus regulations
Employers must make available to the temporary work agency not only the information on remuneration for work assigned to temporary workers, but also information on the internal remuneration regulations in force. Employers must also inform the agency of any changes to said regulations. Further, they must provide the text of the regulations together with all amendments to the agency for review on request.The aim of extending the scope of information made available to agencies by employers is to limit the unequal treatment of temporary workers. Previously, the unequal treatment or employees may have occurred unintentionally, as a result of an agency having incomplete information concerning anemployer’s internal remuneration policies. This amendment also potentially increases the risk of claims by temporary workers for payment of benefits of which an agency was unaware, which will now be easier to track.
Pregnant temporary workers
The amendment guarantees that pregnant temporary workers who have been assigned to a company for two months will be employed until their delivery date. In such a case, an employment contract which would have been terminated after the lapse of the third month of pregnancy must be prolonged until the delivery date. Therefore, the rights of pregnant temporary workers and regular employees with full-time employment contracts are equal.
Penalties
The amendment introduces a misdemeanour liability for employers or persons acting on their
behalf. A fine may be imposed ranging from Z1000 to Z30,000 for:
- giving a temporary employee particularly dangerous work;
- giving a temporary employee work of the same type as that previously performed by a regular employee with whom an employment contract was terminated for reasons not concerning the employee within the three months preceding the predicted start date of the temporary work;
- benefiting from the work of the same temporary worker for a period exceeding 18 months in 36 subsequent months;
- not maintaining the work record for temporary workers for the scope and on the terms applicable to regular employees.The misdemeanour liability for an employer’s representatives has thus been broadened to cover the requirements introduced by the amendment. The fine is now at the same level as in the case of that full information is provided to the agency and assess the risk of potential claims of temporary workersmisdemeanours against employee rights pursuant to the Labour Code.
Comment
In light of the amendment, the following actions are particularly recommended for employers that benefit from temporary workers: Contracts with temporary work agencies should be audited to check if any amendments are required under the new provisions.The terms of remuneration of temporary workers and regular employees should be reviewed to ensure.
The complete article is available for download as a PDF.