Act No. 307/2019 Coll. amending Act No. 311/2001 Coll. Labour Code, as amended and amending certain laws (hereinafter referred to as the “Amendment”) entered into force in October 2019. The Amendment will become effective on 30 July 2020. The main purpose of the Amendment is the transposition of Directive (EU) 957/2018/EU of the European Parliament and of the Council of 28 June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services (hereinafter referred to as the “Directive”). The Amendment has brought changes in the posting of workers from the territory of another EU Member State (and/or a state which is a party to the Agreement on the European Economic Area) to perform work in the territory of the Slovak Republic within the framework of the cross-border provision of services.
Below is an overview of some of the most important changes introduced by the Amendment compared to the existing legislation:
- Short-term and long-term posting
The Amendment distinguishes between a short-term posting lasting for a maximum of 12 months (or 18 months if the extension of the short-term posting and its reasons are communicated to the National Labour Inspectorate in advance) and a long-term posting lasting longer than 12, or 18 months.
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- In the case of a short-term posting, the employment relationship of a worker posted to perform work in the territory of the Slovak Republic will be governed by Slovak labour law only to a limited extent, i.e. within the scope of the so-called core terms and conditions of employment (e.g. work period and rest period, period of leave, minimum wage, prohibition of discrimination etc.), which, however, have been extended by the Amendment compared to the existing legislation. The extension of the core terms and conditions is discussed in Section 4 below.
- In the case of a long-term posting, the employment relationship of a worker posted to perform work in the territory of the Slovak Republic will be governed by Slovak labour law in its entirety, i.e. not only by the core terms and conditions of employment. The only exception will be the provisions concerning the establishment, commencement, termination and cessation of an employment relationship, the performing of other gainful activity and restriction of gainful activity after termination of the employment relationship. These will continue to be governed by the laws applicable to the posting employer (i.e. the employer from another EU state).
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This means in practice that, for example, if a worker of a German employer is posted to perform work in the territory of the Slovak Republic for 6 months and a worker of a Romanian employer for 20 months, the employment relationship of the worker of the German employer will be governed by the Slovak laws solely within the scope of the (extended) core terms and conditions of employment, whereas the worker of the Romanian employer will also be subject to other provisions of Slovak labour law (nearly the entire Labour Code). If the terms and conditions of employment under the law of the posting state (for example, according to German law) are more favourable than the terms and conditions of employment under the law of the host state (where the worker is posted; for example, Slovakia), the more favourable conditions may nevertheless apply – which means that the requirements under Slovak law (if a worker is posted to Slovakia) represent the minimum standard, but the worker may also enjoy better terms and conditions (first and foremost, the worker may continue to enjoy at least the same standard as that provided by his or her main employer in the state from which he or she is posted); this principle has applied also before and has remained unchanged.
- Further posting of a temporarily posted worker to another employer
Another change introduced by the Amendment is that, in the case of temporary cross-border posting of a worker to a (Slovak) user employer in the territory of the Slovak Republic, the Amendment allows the (Slovak) user employer to post the posted worker to perform work for another employer in the territory of another EU Member State. The Amendment allows such posting (although this option is not explicitly provided for, it follows indirectly from the Amendment and is explicitly allowed by the Directive); however, the user employer is obliged to inform the posting employer thereof well in advance. For example, if a Hungarian temporary-work agency temporarily posts a worker to perform work for a Slovak employer that intends to provide a service in the territory of Germany through that worker, the Slovak employer is obliged to inform the Hungarian temporary-work agency of this posting in advance, so that the Hungarian agency is able to fulfil its obligations related to the posting, e.g. compliance with the terms and conditions of employment and wage conditions in Germany, the fulfilment of obligations toward German authorities etc.
- Calculation of the duration of a posting and successive postings
Further to the division of postings into short-term and long-term postings, the Amendment also defines rules for the calculation of the duration of a posting and has introduced the inclusion of so-called successive postings in the duration of a posting. This means that if a posted worker replaces another posted worker who performed the same task in the same place, the time worked by both workers will be included in the duration of the posting. This prevents possible abuse of the law consisting of shortening the duration of a posting by evasion of laws (e.g. if two posted workers take turns every 12 months to perform the same task for the sole purpose of making it appear a short-term posting, to which only the so-called core terms and conditions would apply).
- Extension of the core terms and conditions
The Amendment has extended the so-called core terms and conditions of employment, that is, the provisions of Slovak labour law that must apply to the employment relationship of a worker posted to perform work in the territory of the Slovak Republic.
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- In the area of remuneration, these relationships will no longer be governed solely by the applicable Slovak laws regulating the minimum wage, minimum wage claims, and allowances for overtime work (as it has been until now), but also by the provisions regulating allowances for Saturday work, Sunday work and holiday work, allowances for night work, compensation for work performed in difficult conditions, other mandatory parts of the wage and holiday allowance.
- Furthermore, the extension of the core terms and conditions means that, according to the Amendment, workers posted to perform work in the territory of the Slovak Republic will be entitled to reimbursement of expenditure to cover travel, board and lodging expenses when on a work trip (for example, within the territory of Slovakia) to the extent and under the conditions of reimbursement paid to Slovak employees while applying the principle of avoiding double payment of expenses.
- The core terms and conditions of employment have also been extended to include the conditions of accommodation provided by an employer, which means that the conditions of accommodation for temporarily posted workers must be governed by the laws of the host state (i.e. if a worker is posted to the territory of the Slovak Republic, Slovak law will apply),not by the laws of the posting state. A worker may, of course, enjoy more favourable conditions. With this extension, the Directive seeks to ensure that posted workers are provided accommodation adequate to the standards of the state to which they are posted and also responds to frequent cases of “concealing” of accommodation costs actually incurred by workers in the host state by including them in remuneration for work (which is not possible within the meaning of the case-law of the EU Court of Justice).
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This legal summary was prepared in October 2019 exclusively for the purpose of providing general information and should not be viewed as legal advice. The aforementioned overview is not comprehensive, but only provides a brief summary of the relevant legislative changes. If you are interested in more detailed information on the aforementioned legislative amendment, please do not hesitate to contact any of your contact persons at Čechová & Partners.