By Petra Gajerová, Firm: Nitschneider & Partners
Changes to the Slovakian Labour Code currently underway would clarify employers and employees rights and obligations for remote work, how employees can be transferred between parent and subsidiary and change the rules on liability for illegal cross-border employment among other things. This article provides details.
Amendments to the Labour Code and its related regulations in Slovakia are currently in the legislative procedure. They will address in particular the topics set out below.
Defining rights and obligations for remote work
The main aim of the proposed change is to define the exact terms and to specify the rights and obligations of the employee and the employer arising from work from home/telework and casual work performed in exceptional circumstances (‘Home Office’).
Currently, during Home Office the employer is not obliged to fulfil other obligations related to remote working, such as providing, installing and performing regular maintenance of technical equipment. This means Home Office represents a more favourable and convenient option for the employer. Even though it shouldn´t be, Home Office is often used several times per month on a regular basis, including without any exceptional circumstances being present. According to the explanatory memorandum to the amendment, remote work should not be considered casual or performed in exceptional circumstances, if some pattern of regularity may be identified.
The amendment also puts limits on work scheduling while working from home. Working time may be scheduled by the employee, or by the employer in a form of flexible working time. The proposed changes would tighten the current regime under which the employer is not legally limited in the way it schedules working hours using flexible working time. On the other hand, if the employee schedules his/her work time him/herself, s/he will lose some benefits. Similar rules were already in place but will be now further clarified, especially the issue of stoppages. If these are caused by the employee, s/he will not be entitled to wage compensation.
Also, the measures to be taken by the employer for work from home/telework should be more precise. The biggest change compared to the current wording of the Labour Code, is the direct legal obligation on the employer to reimburse the employee for increased costs related to remote work. At the moment, this obligation has to be derived by analogy with other provisions of the Labour Code and the protection of safety and health at work regulations.
On the other hand, the employee would be obliged to inform the employer without delay of problems with technical equipment, software, or internet connectivity that prevent him/her from carrying out the work.
The employee should have the right to disconnect. This applies during:
- uninterrupted daily rest and uninterrupted weekly rest, if stand-by work or overtime has not been ordered or agreed;
- taking paid holidays and public holidays when work is cancelled;
- obstacles to work.
In practice, this means that if an employee refuses to work during these periods, the employer will not be able to consider this conduct a breach of duty.
Meal vouchers or a financial contribution for meals
An employer who does not provide meals in its own catering facility or other employer's catering facility must allow employees to choose between catering through meal vouchers or a financial contribution to meals. At the same time, it is proposed to keep exceptions to the option where a financial contribution for meals has been applied so far.
According to the explanatory memorandum to the amendment, employers will be obliged to adjust the rules on how employees’ selection is carried out. Due to the diverse size and conditions of employers, the law leaves these issues to employers and only regulates the minimum rules, allowing them to issue an internal rules for these purposes. Based on the employee’s choice, the employer provides the employee with meals through a legal entity or a natural person who is authorised to provide catering services in the form of a meal voucher or provides the employee with a financial contribution for meals.
The financial contribution for meals must be at least 55% of the minimum value of the meal voucher according to currently valid provisions of the Labour Code.
The conditions for the temporary assignment of employees between parent and subsidiary companies
The amendment proposes more flexible arrangements for temporary allocation of employees between controlling entities and controlled company if the need arises. The issue of objective operational reasons will not be examined, and no minimum employment duration conditions will have to be met. In order to ensure that there is no unauthorised temporary employment agency activity (i.e. placement of employees for profit) without a permit, temporary assignment of an employee in an employment relationship between the controlling entity and the controlled entity is only permitted free of charge (with the exception of the reimbursement of costs of wages and other benefits associated with the performance of work).
Employee and employer representatives
‘Representativeness’ within the meaning of special regulation (Act no. 103/2007 Coll. on tripartite consultations at the national level and on the amendment of certain laws (the “Tripartite Act”)) means the ability of employers´ and trade union associations to represent the employers or employees in the social dialogue between the state and employers and employees at the Economic and Social Council of the Slovak Republic (i.e. fulfilment of all legal conditions of the definition of a representative employers' association or trade unions´ association).
The amendment suggests that at least three associations should be chosen for each party (employees and employers) to be members of Economic and Social Council. If three associations do not meet the statutory criteria (size, number of employees, the scope of influence), the proposal is to proceed with employer´s or trade unions´ association applying for membership which does not meet the criteria of the number of employees, but meet other criteria. The association with the most employees will become a member.
Thus, chosen representative employers´ and trade unions´ association will have to prove its representativeness at the request of any other employers' or trade unions´ association once they express their doubts about representativeness regarding to its size (number of employees).
A new model of adequate liability for illegal employment
This amendment also stipulates changes to the joint responsibility of recipients of work or services with providers for illegal employment of employees in the event of cross-border service provision.
Currently, joint responsibility for illegal employment arises only when a service received from a foreign provider exceeds five days in a period of 12 months from the first provision of the service or work.
According to the amendment, joint responsibility in the event of cross-border service provision will only arise in cases of long-term service provision. For this purpose, the currently established period is extended from five days in 12 months to thirty days in 12 months.
This extended period should help and protect recipients who need to receive a short-term service but do not have time to verify the seriousness and legality of the employment with its service providers reliably.