Czech Republic: Posted workers

  • Observatory: EurWORK
  • Topic:
  • Posted workers,
  • Working conditions,
  • Industrial relations,
  • Published on: 07 Deireadh Fómhair 2010



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Disclaimer: This information is made available as a service to the public but has not been edited by the European Foundation for the Improvement of Living and Working Conditions. The content is the responsibility of the authors.

The Czech Republic has implemented the Directive no. 96/71 EC at the accession date to the European Union, i.e. on 1 May 2004, when the new wording of provisions under Article 6, Act no. 65/1965 Coll., Labour Code, became effective, concerning posting of employees to other member states of the European Communities. Simplification and detailing of the legal regulation has been brought by the new Labour Code.

QUESTIONNAIRE

1. Posted workers: basic facts

1.1 Please provide basic data on the workers posted in your country:

a) number (by gender); b) distribution across sectors

If possible, cover the period 2005-2008.

Since official data on posted workers are known to be at most limited, please refer also to other sources, whenever available. In sum, NCs are invited to consider data, including estimates and partial information (for instance, special investigations carried out by inspectorates in particular sectors or areas – in this cases please include details), provided by:

Monitoring authorities which expressly collect and disseminate information regarding terms and conditions of posted workers;

- As of: December 2005: 12,193 employees totally (1,473 women), mainly in: manufacturing industry (6,667 / 1,104), building (2,725 / 21), mining (1,236 / 2) etc.,

- as of: December 2006: 13,840 employees totally (1,800 women), mainly in: manufacturing industry (7,734 totally / 1,329 women), building (2,743 / 25), mining (1,537 / 3) etc.,

- as of: December 2007: 15,137employees totally (2,047 women), mainly in: manufacturing industry (8,710 totally / 1,532 women), building(3,014 / 34), mining (1,372 / 0) etc.,

- as of: 31 December 2008: 13,688 mployees totally (1,710 women), mainly in: manufacturing industry (7,226 totally / 1,126 women), building (3,084 / 29), mining (1,215 / 0), etc.

(Ministry of Labour and Social Affairs of the Czech Republic data - based on labour offices´ data).

1.2 Are there any information on the number (by gender) and distribution across sectors of workers posted to other countries by domestic companies? If yes, please provide details.

No data.

1.3 Are there any information on trade union affiliation and collective bargaining coverage of workers posted to your countries, including affiliation to foreign unions and coverage by foreign collective agreements, in addition and beyond the minimum requirements set by legislation? If yes, please provide details.

No information.

1.4 Are there any information on trade union affiliation and collective bargaining coverage of workers posted to other countries by domestic firms? If yes, please provide details.

No information.

1.5 Please refer the main content and results of major studies on posted workers (either in-coming or out-going), both quantitative and qualitative, which have been carried out in your country.

Analytical study “Directive 96/71 EC Concerning the Posting of Workers and the Problems of its Practical Application" deals with the practical problems of application of this directive, especially with the conditions of work, which has to be guaranteed to posted workers, and the concrete way, how the member states have fulfilled this obligation.

A broad range of topics and practical focus is characteristic for the publication by a team of authors “Employment of foreigners and posting employees and the self-employed abroad 2009”. In the publication emphasis is put particularly on legal duties and practical procedures for employers, relating to the performance of employment or self-employment by foreigners in the territory of the Czech Republic.

2. Regulation on posted workers

2.1 Please provide details on the current legislative framework for posted workers in your country:

a) Reference to the law adopting the posted workers directive: number, date, and link to the text, if available, in English;

The current legal regulation in the given area is included in:

Act no. 262/2006 Coll., Labour Code, of the 21 April 2006, which became effective on 01.01. 2007. The implementation is provided mainly in article 319.

http://business.center.cz/business/pravo/zakony/zakonik-prace/cast13h9.aspx ,

Act no. 435/2004 Coll., on employment, especially articles 87 and 102.

http://business.center.cz/business/pravo/zakony/zamestnanost/cast4.aspx

b) A brief account of any amendments or integrations introduced after the initial adoption;

The Czech Republic has implemented the Directive no. 96/71 EC at the accession date to the European Union, i.e. on 1 May 2004, when the new wording of provisions under Article 6, Act no. 65/1965 Coll., Labour Code, became effective, concerning posted employees to other member states of the European Communities. Unlike the wording contained in the Directive, the provision of Article 6 of the Labour Code was designed very broadly, thus leading to problems in interpretation and application in practice. The aforementioned provision concerned not only posted employees from another member state to carry out work in the Czech Republic but also, beyond the scope of the Directive, posted employees by Czech employers to carry out work in another EU member state.

Simplification and detailing of the legal regulation has been brought by the new Labour Code. Its provision relates solely to posting employees of employers from another EU member state to carry out work in the Czech Republic, as a part of global service provision. That means, if as a part of provision of services a Czech employer posts his employees to perform work in another EU member state, this posting is not governed by the Czech Labour Code any longer but solely by the respective legal regulations of another EU member state depending on the place of the employee’s performance of work.

c) A description of the current legal framework regarding posted workers, especially:

- as regards the way employment conditions are enforced, as required by art. 3.1. of the Directive (see the briefing note for the text of the article):

i. by law, regulation or administrative provision, and/or

In the Czech Republic there is a special Section 319 of Labour Code specifying which of its provisions shall apply as regards the working conditions of posted workers. And that is:

  • the maximum length of working hours and the minimum of rest periods;
  • the minimum length of annual leave or its proportionate part;
  • the minimum wage, minimum wage rates and overtime premiums;
  • occupational health and safety;
  • the conditions of work for adolescent employees, pregnant or breastfeeding employees and female employees until the end of the ninth month after childbirth;
  • working conditions in the case of using an employment agency;
  • prohibition of discrimination and equal treatment for male and female employees.

This is not applicable, if the rights from the statutory provisions of the Member State (from which the employee is posted) are more advantageous for the posted worker. The provisions concerning the minimum length of annual leave, minimum wage and bonus for overtime work shall not apply if the period of expatriation of an employee to work in the Czech Republic shall not exceed 30 days a year. This shall not be applicable if such employee is posted by an employment agency.

ii. by collective agreements or arbitration awards which have been declared universally applicable;

The Czech regulations apply a legal institute to extend bindingness of higher-level collective agreements to other employers. Act no. 2/1991 Coll., on collective bargaining provides in Article 7, Section 1, that contracting parties may mutually propose an announcement of the Ministry of Labour and Social Affairs (Ministerstvo práce a sociálních věcí ČR, MPSV ČR) to be published in the Collection of Laws, that the collective agreement is binding also for other employers with a prevailing business activity within the sector. If this extension of bindingness is implemented, such collective agreement as far as the posted workers to the CR are concerned is binding only in the extent of Article 3, Section 1 of the Directive, or in the extent of provisions of Article 319 of the Labour Code (see above).

- whether the law requires the application to posted workers of:

i. the whole system of labour law or only minimum terms expressly identified with reference to the list in art. 3.1 (see the briefing note for the text of the article).

See above- only minimum terms expressly identified.

ii. the whole content of collective agreements or arbitration awards which have been declared universally applicable or only minimum terms expressly identified with reference to the list in art. 3.1 (see the briefing note for the text of the article).

Se above – only minimum terms expressly identified.

- when the employment conditions are set by collective agreements or arbitration awards, please specify which is the legal instrument which make them universally applicable:

i. according to the law. Please specify the law reference number and year and whether it includes certain requirements for universal application. In this latter case, please specify such requirements.

Not relevant.

ii. according to a ministerial decree. Please specify which minister or political authority can issue the decree and whether certain requirements are needed. In this latter case, please specify such requirements.

This is done via announcement of MPSV ČR that the collective agreement is binding also for other employers within the sector in the Collection of Laws (under Article 7, Section 9 of the Act no. 2/1991 Coll., on collective bargaining). In the announcement MPSV ČR specifies a location where one can learn about the contents of the collective agreement. For approval by the MPSV ČR regarding the extension of the higher-level collective agreement (see above), it is necessary that members of the employer association that concluded the collective agreement employ the highest number of the staff within the given sector or the trade union that concluded the collective agreement acts on behalf of the highest number of employees in the respective economic sector. Act on collective bargaining in Article 7, Section 9 provides also prescribed particulars which the proposal for extension of the higher-level collective agreement must include (e.g. it must contain lists of employers for whom the higher-level collective agreement is binding and their total headcount or the total number of employees the respective trade union represents, etc..), as well as other terms the proposal must fulfil (e.g. written form, etc.).

iii. according to rules on mandatory representation which make collective agreements (in practice) universally applicable.

Not relevant.

- when the employment conditions are set by collective agreements, please specify which collective agreements are relevant:

These are higher-level collective agreements the binding character of which was extended to other employers in the given sector.

i. intersectoral or sectoral. Please provide examples.

Sectoral (see above).

ii. national or territorial. Please provide examples.

Not relevant.

d) whether the legal framework sets a maximum period for considering a worker a “posted worker” rather than a “resident worker”. If yes, please specify this maximum period.

No.

e) whether there are special rules for certain sectors (for instance, construction). If yes, please specify the sectors and briefly illustrate such special rules.

There are no special rules for certain sectors.

2.2 Monitoring of implementation of regulation

a) whether a monitoring system for collected data and information on the number and employment conditions of posted workers was set up. If yes, please provide details on such system (bodies involved, structure, methods of collection and dissemination of information, etc.) and its effectiveness;

The requirement to make a declaration imposes an obligation on the recipient of the service.

The Act on employment (see above) provides that if a citizen of the European Union or his/her family members are hired, the employer or a legal or natural entity to whom these persons are posted by the foreign employer based on the contract, are obliged to inform the relevant Labour Office about this fact in writing on the day when such persons start performing the work at latest. The written information contains data maintained in records which must be kept by the employer in accordance with provisions of Article 102, Section 2. The records contain employees´ identification data (name, or names, surname, or maiden surname, citizenship, birth-certificate number or a date and place of birth, if a birth-certificate number was not assigned, and residence) – by residence it is understood for a citizen of EU/EEA and Switzerland or for his/her family member an address of permanent or temporary residence in the Czech Republic, and if s/he has no such place of residence, then an address of the place where s/he usually stays in the Czech Republic; the address in the country of permanent residence and a delivery address, furthermore, a passport number and the name of the body that issued it, type of work, location of the work performance and time for which the work should be performed, sex and economic business classification (OKEČ/NACE) of the natural persons, the highest education adjusted, education required for performance of occupation, start and termination days of employment or the date of posting by the foreign employer to perform work. Each change of these data must be announced by employers not later than by 10 calendar days since the day the change occurred or they learnt about it. The employer is also obliged to inform the respective Labour Office about workers´ termination of employment or posting not later than by 10 calendar days.

The Labour Office keeps records of EU citizens and their family members who started employment. The records contain foreigners´ identification data, place of work performance, type of work, employer’s identification data for whom the work will be performed, additional data necessary to perform the work and moreover, sex and classification of business activities of these natural persons, the highest education adjusted and education required for performance of occupation. Data about natural persons registered in such way can be disclosed only if these persons give a written consent to it, or in situations when prescribed by a special law or international treaty the ratification of which was approved by the Parliament of the Czech Republic and which is thus binding for the country.

Provisions of the Employment act relating to the obligation to keep the aforementioned records are observed by most employers, which can be proved by the fact that e.g. in the first half of 2006 deficiencies in employers´ observance of duties prescribed by the Act on employment, Article 2, Section 102 (see above) amounted to a mere 1.6% from the total number of 2,333 deficiencies detected during employer inspections carried out by Labour Offices.

b) whether measures were introduced to make the information on the terms and conditions of employment generally available to foreign service providers and to the posted workers concerned.

Pursuant to the law (Act no. 251/2005 on labour inspection, Article 4, Section 2, Letter d) the State Labour Inspection Office (Státní úřad inspekce práce, SUIP) and its subordinate regional inspectorates are obliged to provide information to employers and employees. They provide, free of charge, basic information and consulting relating to labour relations and working conditions. On their web sites SUIP has also published a leaflet in Czech, Polish and Ukrainian called “Posting workers of an employer whose residence is outside the Czech republic, to perform work in the Czech Republic“, containing information about legal regulation of this area in the Czech republic. Information about this topic are also provided by MPSV ČR, as a central body of the government administration for labour and social policies. Posted-workers-related information is provided by MPSV ČR especially on their web sites where they also specify a contact person responsible for answering potential questions.

The obligation of employers as well as Labour Offices to keep the above-mentioned records and the structure of the contents of such records are part of the information provided by MPSV ČR, among others, on their web sites, which also specify a contact person responsible for answering potential questions.

c) whether the law envisages the implementation of special labour inspections devoted to verify the number and employment conditions of posted workers. If yes, please provide details on how these are organised and on their effectiveness and outcomes.

Observance of duties related to posted workers by employers is checked by respective Labour Offices as well as by the afore-mentioned Labour Inspectorates. Labour Offices, within the scope of their authority, check abiding by provisions of Employment Act, i.e. in the given situation observance of keeping records and announcement duty of employers as well as duties prescribed by the Employment Act for work agencies. Inspectorates perform a general supervision over adherence to labour-law regulations, therefore also over the employers´ activity regarding posted workers. Both Labour Offices and regional Labour Inspectorates carry out inspections at employers based on approved inspection plans or based on deficiency announcement. In case of deficiencies detected, these inspection bodies may impose fines on employers.

2.3 Please specify if particular rules have been devised to deal with specific situations of posted workers:

a) the current rules for the posting of temporary agency workers in your country, especially whether the law requires the application to temporary agency workers of:

i) the whole legislation on temporary agency work or only minimum terms expressly identified with reference to the list in art. 3.1 (see the briefing note for the text of the article).

Legislation on the agency work is covered by Articles 308 and 309, and also by Article 13, Section 2, Letter h, Article 39, Section 6 and in Article 319, Section 1, letter g) of the Labour Code. Pursuant to provisions of Article 319, Section 1, letter g of the Labour Code it holds that if an employee has been posted by the employer to perform work within global provision of services from another EU member state to the Czech Republic, the legal regulation of the Czech republic applies to him/her, as far as working conditions at agency work are concerned. This rule shall not be applied only if rights resulting from the regulations of the EU member state, from which the employee has been posted to perform work within global provision of services, are more convenient for him/her. Convenience is evaluated for each law relating to the labour-law relation separately. This legal regulation has been brought not earlier than by the Act no. 262/2006, Labour Code, effective from 01.01.2007 (see above), since until that time employers were only obliged to provide workers posted from other EU member state with working conditions pursuant to the Czech Labour Code only in limited segments, for example, concerning hours of work and rest, under certain conditional length of holiday, minimum wage and minimum wage tariffs and overtime bonuses. Occupational safety and some other specified working conditions. The aforementioned new Labour Code, however, applies all the working conditions at agency work in general to agency workers, therefore including the principle that working and wage conditions of temporary assigned agency employee must not be worse than conditions which are or would be applicable for the user’s employee (Article 309, Section 5 of the Labour Code). For these agency employees posted from EU member states it is not enough to provide a minimum wage only, or the lowest level of the guaranteed wage (as it holds otherwise pursuant to Article 319 of the Labour Code), but generally, an identical wage at least and other working conditions must be secured for them comparable to the employee of the Czech user. However, if such employee’s entitlements are more convenient pursuant to the legislation of the country he is posted from, the more favourable legislation applies to him/her. Duty to ensure the above-mentioned working conditions of agency workers from other EU member states applies to their foreign employer – work agency. This duty should be placed on the user only if the governing law for this commercial-law-based relation is the law of the Czech Republic.

ii) the types and requirements for temporary agency work established by national legislation (compared to those envisaged by the legislation of the country of origin). For example, can temporary agency workers be posted under contractual arrangements – such as indefinite duration staff leasing - which would not be available for national temporary work agencies?

The legal relation between the Czech user and foreign work agency is not governed by the legislation on agency work, provided in the Labour Code, automatically. This situation concerns a relation according to the commercial law, where a selection of legislation is allowed. Thus, if the legislation of the Czech Republic is not to be applied, it is not even necessary for the agency and the user to conclude an agreement on temporary posting pursuant to Article 308, Section 1 of the Labour Code.

b) the current rules for employment conditions in public procurement, notably whether the law:

i) requires explicitly the application of specific terms and conditions of employment to be awarded public procurement contracts. If yes, please specify what kind of terms and conditions of employment must be applied (comprehensive terms or only minimum levels?).

See the above-mentioned employer’s (user’s) duty prescribed by the Employment Act which is in force generally.

ii) requires explicitly the application of specific collective agreements to be awarded public procurement contracts. If yes, please specify what kind of agreements must be applied (national, sectoral, territorial) and to what extent (the whole agreement or only certain and minimum provisions?).

No.

iii) allows awarding authorities to require the application of specific collective agreements to be awarded public procurement contracts. If yes, please specify to what extent this possibility is used (almost always, often, rarely, almost never) and what kind of agreements are more often considered for such clauses (national, sectoral, territorial).

No.

iv) envisages specific clauses in the case of posted workers. If yes, please briefly illustrate the contents of such rules.

No.

3. Positions and actions of the social partners and government on posted workers

3.1 Please indicate the positions and main initiatives that the social partners and the government have taken with reference to posted workers, either in-coming or out-going, and especially indicate:

No factual information. In the Czech Republic, specifically the topic of “posted workers” remains, in our opinion, outside the centre of attention of social partners and the government in the CR.

a) the presence of a debate on the relevance and consequences for national labour law and industrial relations institutions of recourse to posted workers. If such debate is present, please refer its main contents and whether it refers to specific sectors.

See above.

b) any positions expressed or actions taken in view of the recent rulings by the European Court of Justice (cases Laval un Partneri - C-341/05, Rüffert - C-346/06, Commission v Luxembourg – C-319-06).

No.

3.2. The main campaigns or initiatives undertaken by the social partners specifically aimed at posted workers or firms posting workers. If such campaigns or initiatives are present, please indicate their main features and whether they refer to specific sectors. Please cover, in particular:

No campaigns or initiatives were undertaken.

a) Trade union initiatives with regard to:

No information.

b) Employers initiatives with regard to:

No information.

c) Any kinds of joint action undertaken by the social partners with regard to the issue of posted workers

No information.

4. Collective disputes and case law on posted workers

4.1 Please indicate whether collective disputes involving posted workers are frequent or increasing in recent times.

We have no information on collective disputes especially involving posted workers.

4.2. Please provide information on any major collective disputes which concerned the utilisation of posted workers in your country. Please include for each case:

See answer above.

4.3 Please provide information of existing case law in your country involving posted workers. Please include

We have no information on existing cases involving posted workers.

Commentary

The topic of posting workers does not fall among issues which is nowadays or has been recently paid a special attention to by the government or trade unions and employers, or an issue for which crucial standpoints and decisions were adopted. This holds though the topics of employment of (non-EU) foreigners or work agencies in general and agency employment as such rank among highly frequent areas continuously monitored by the government as well as social partners –both in terms of the current Czech legislation and especially its application, no matter whether it concerns deficiencies in the legal regulation of activities of work agencies or non-observance of regulations relating to employment of foreign workers. However, in these areas the focus of problems lies mainly outside the scope of the topic regulated by the Directive 96/71 EC.

References

  • Chlebcová, R., Directive 96/71 EC Concerning the Posting of Workers and the Problems of its Practical Application, Brno, Tribun EU s.r.o., 2007.
  • Employment of foreigners and posting employees and the self-employed abroad 2009, Anag 2009.
  • Barancová, H, Lacko, M.,, Olšovská, A., Randlová, N., Škubal, J., Posting of Workers, Plzeň, Aleš Čeněk s.r.o., 2008.
  • Labour Code (full translation) No. 262/2006 Coll. "Zákoník práce" , published in full by official network address of the Ministry of Labour and Social affairs http://www.mpsv.cz/files/clanky/3221/labour_code.pdfttp://www.mpsv.cz/files/clanky/3221/labour_code.pdf

Jaroslav Hála, VUPSV

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