According to the Employment Act, the working relationship is the contractual relationship between the employee and the employer, which is based on the employment contract. In the working relationship, the employer and employees are obliged to comply with the provisions of the Employment Act, other laws, international agreements, other regulations, collective contracts, and regulations related to the working relationship.
Also, according to the provisions of the Employment Act and the factual work i.e., the de facto working relationship can be converted into a formal working relationship with the fulfillment of certain general and special conditions.
Employment relationship for a indefinite period of time is the basic form of the employment relationship, but not the only form of the employment relationship. Besides it there are other forms of the employment relationship, as follows:
- Employment relationship with a probation work
- Employment relationship for a definite period of time
- Employment relationship for performing higher-risk jobs
- Part-Time employment relationship
- Employment relationship for performing jobs outside the employer’s premises
- Employing household help and
- Employment relationship with trainee.
Conditions for Establishing of Employment relationship
Years of life and other requirements to work at specific jobs
An employment relationship may be established with a person who is at least 15 years old and satisfies other requirements to work at specific jobs as specified by law i.e. rule book on organization and systematization of jobs (hereinafter: rule book).
The rule book establishes organizational units at the employer, name and description of jobs, type and level of required qualification, i.e. education and other special requirements for work on those jobs, while the number of employees for each job position may also be determined. To work in certain jobs, exceptionally, no more than two successive level of qualification i.e. education may be a prerequisite in accordance with the law. The rule book is adopted by the competent authority of the employer, i.e. a person determined by law or bylaw of the employer.
The duty of adopting the rule book does not refer to an employer employing 10 or less employees.
An employment relationship may be established with a person under 18 years of age with the consent in writing of a parent, adopting parent or a guardian, provided that such work does not put at risk his health, morality and education, i.e. provided that such work is not prohibited by law. A person under 18 years of age may establish the employment relationship only with a competent medical certificate attesting that he is capable to perform the activities of the job he is getting, and that such activities do not harm his health.
Costs of medical examination for persons who are listed in the unemployment records kept by the state organization in charge of employment, are covered by that organization.
Legal instruments and other evidence of fulfilment of requirements to work in jobs the employment relationship is established for
At the establish of the employment relationship a candidate shall furnish the employer with legal instruments and other evidence of fulfilment of requirements to work in jobs the employment relationship is established for, as specified by the rule book.
An employer may not request from the candidate information relating to family, i.e. marital status and family planning, i.e. submission of legal instruments and other evidence which are of no direct importance for the performance of jobs the employment relationship is established for.
An employer may not condition establishment of the employment relationship with the pregnancy test, unless the relevant jobs involve considerable risk for the health of the woman and child, as determined by a competent health-care agency.
An employer may not condition establishment of the employment relationship with giving prior statement regarding the cancellation of employment contract by the candidate.
Employer’s duties prior to the conclusion of employment contract
An employer shall, prior to the conclusion of employment contract, inform the candidate about the job, the conditions of work, rights and duties relating to employment relationship, and the rules of the employer in relation to carrying out contractual and other duties in the sphere of employment.
A persons with a disability
A person with a disability establishes the employment relationship under the conditions and in the manner specified by the Employment Act, unless otherwise specified by a special law.
A foreign national
A foreign national or a stateless person may establish employment relationship under the conditions specified by the Employment Act and a special law.
The employment relationship is established by an employment contract.
An employment contract is concluded between an employee and an employer. The employment contract is considered concluded when signed by the employee and the employer.
An employment contract may be concluded either for an indefinite or definite period of time. An employment contract where the period of time of its validity is not determined is considered to be a contract for an indefinite period of time.
An employment contract is concluded in writing before the employee starts to work.
Starting to Work
An employee shall realize the rights and duties deriving from employment relationship as of the day he starts working.
Should an employee fail to start working on the day specified by the employment contract, it is considered that he has not established the employment relationship, unless he was prevented from starting to work due to justifiable reasons, or unless the employer and the employee agree otherwise.
On the basis of the employment contract or other contract on conducting activities concluded in accordance with the Employment Act, the employer is obliged to file a joint application for mandatory social insurance in the time period specified in the law governing the Central Register of Mandatory Social Insurance, at the latest prior to the moment the employee, or other person engaged for work starts working.
Under the factual work, it shall be considered the work engagement without a legal basis, therefore without an employment contract or any other contract which shall regulate the work outside of the employment relationship. According to the provisions of the Employment Act should an employer fail to conclude in writing the employment contract with an employee before the employee starts to work, it is deemed that the employee has established the employment relationship for an indefinite period of time, as of the day he started working.
In order to convert some factual employment into formal employment, you need to fulfil the general and special conditions. The general conditions are already given by the Employment Act, while we shall know the special conditions by the interpretation of the Employment Act and court practice in cases of factual work.
The fiction of the existence of an employment relationship is clearly limited to the employment contract and in order that someone would be protected by it, he has to fulfil the general conditions to establish an employment relationship.
If the person who is already in a full-time working relationship with the second employer shall be factual engaged, the person may not seek to conclude the employment contract, or request from the court to recognize his work as a working relationship. This rule is because the person is already in a full-time working relationship that cannot be duplicated.
The special conditions for a de facto employment relationship to be converted into a formal employment relationship, which relate to the nature of their employment, the deals which they perform and the relationship with other employees and the employer are:
- It is necessary that there is work engagement, i.e. that the engaged person shall perform some work. That work must be constant, as well as the need for it. According to these interpretations, the Employment Act “converts” factual work into employment relationship only if the common intention of both the employer and the engaged person who performed the factual work was to establish permanent employment relationship that will endure as long as it is needed endures because of the existing scope of work – which is the essential feature of employment relationship for an indefinite period.
- Part-time work is not an obstacle to the fiction’s application to the existence of an employment relationship.
- Payment of wages by the employer for the invested work to the person who is de facto employed. This salary must be under an informal, verbal agreement between the employer and the engaged person, and it is one of the critical elements of the distinction.
- The employed person has been treated as an employee, i.e., there was no difference in the treatment of that person and other employees. Primarily it shall be meant to issue work assignments, which automatically implies at least two components of daily work: precise determination of the work that the working person performs and a permanent place in the hierarchy of employees.
If all the above conditions are met, the working engaged person may address the Court and initiate a working dispute in which it will request the determination of the existence of a working relationship with the employer for an indefinite period. At the same time, it may address the work inspection that will perform inspection supervision, submit misdemeanour charges against the employer and provide documentation that can be used later in a work dispute to prove the existence of working relationship elements.
Criminal liability of the employer, i.e., the responsible person with the employer, is also envisaged, in especially severe cases of violation of the legal obligation to register employees and conclude employment contracts.