Sending Employees to Temporary Work Abroad
Sending Employees to Temporary Work Abroad – the Legal Framework of the Republic of Serbia
For decades, going to the countries of Western Europe or across the Atlantic, in a pursuit of a more prosperous future or the realization of the American Dream, has been an ideal for people from the Balkans. However, many, due to the love for their family and friends, nostalgia for their homeland and the hedonistic way of life they are used to live here, hesitated about migrating to the West, and some returned to their motherland because of the mentioned values. It seems that the balance between higher earnings in the West and the warmth of a family home, as well as for all things in life, is the best option for many – that is, to go to work abroad only temporarily (at least for the beginning).
From the aspect of numerous domestic employers, temporary sending of employees to work abroad at their partner companies on the basis of business cooperation, or in their business unit abroad, or on the occasion of inter-company movement realized within the affiliated companies, accompanied by a certain monetary compensation or any other concession and benefit for the temporary work of the employer’s workforce abroad, represents a convenient option to increase the company’s capital.
Therefore, within this text, we will present the conditions and procedure for sending employees to temporary work abroad, which is regulated in the Republic of Serbia by the Law on Conditions for Sending Employees to Temporary Work Abroad and Their Protection (“Official Gazette” RS No. 91/2015 and 50/2018), hereinafter: the „Law“).
The mentioned desire of the employees in the Balkans and the intention of many domestic employers may have been the same for decades, but the legal regulations have changed in the meantime. The legislator recognized the tendency of certain employers to employ a number of people exclusively in order to send them to work abroad immediately, while avoiding the procedure of obtaining a permit from the Ministry of Labor for employment mediation, and therefore prescribed certain restrictions and conditions under which employees can refer to temporary work abroad. Thus, the employer cannot, by a contract concluded with a foreign entity, envisage the assignment of employees to that or some other foreign entity, and temporary employees may be sent to work abroad only exceptionally, if all legal conditions are met.
On the other hand, the latest amendments to the Law abolished the legal obligation of the employer to submit a notification to the Ministry of Labor with regards to the employees who shall be sent to work abroad, which simplifies the posting procedure in order to act faster and more efficiently. Another reason for the abolition of this employer’s obligation is that the Central Register of Compulsory Social Insurance has data on employees sent to work temporarily abroad, and that the labor inspection has access to this data.
The concept and types of employees’ posting abroad
Legal framework with respect to sending employees for temporary work abroad applies to work and to professional training and development for the needs of the employer, both of which are taking place in foreign lands. Precisely, the sending may be carried out for the purposes of: work, within the performance of investment and other works and provision of services, on the basis of a business cooperation agreement, work or professional training and development for the needs of the employer in the employer’s business units abroad, and lastly, work or vocational training and development for the needs of the employer within the inter-company movement. The employees’ sending can last for a maximum of 12 months, with the possibility of extension.
Business trip to foreign lands
Sending employees to work / for the purpose of professional training and development should be distinguished from business trips to foreign lands – business trips represent the period of employees’ stay abroad for business purposes, lasting a maximum of 30 days in a row, or 90 days in total with interruptions during the calendar year.
The matter of business travel is not regulated by the Law, but is ceded to employers in the private sector to determine it freely, while, in the state sector, this matter is regulated by the Regulation on Reimbursement of Expenses and Severance Pay for State Officers and State Employees („Official Gazette of RS“ No. 98/2007, 84/2014 and 84 / 2015). Although this Regulation is not legally binding for the private sector, it can also serve to the employers in the private sector as a benchmark for regulating the terms and conditions of employees’ business stay abroad, especially regarding the amount of daily allowances that differ according to the Regulation, depending on the country where the business trip is taking place.
Conditions for sending employees to temporary work abroad
- A) Conditions relating to the employment status of employee with the employer and the personal status of the employee:
Solely employees who are employed indefinitely could be sent by their employer to work abroad.
Exceptionally, the employer may send an employee who is employed for a definite period of time as well, provided that the time spent on temporary work abroad is not counted in the legal limitation of the duration of this employment relationship. The second condition is that this employee’s work cannot last longer than the time for which the employment contract was concluded.
Also, the employee must be employed by the employer for at least three months before the day of posting, and less than three months only if the posting of employees is done within the predominant activity of the employer, registered in the RS Business Registers Agency, and if the number of this type of employees (who are employed by the employer for less than three months and are supposed to be sent to work abroad), are up to 20% of the total number of employees with the employer on the day of posting.
These conditions do not apply to employees sent abroad on the basis of the Agreement between the Federal Executive Council of the Assembly of the Socialist Federal Republic of Yugoslavia and the Government of the Federal Republic of Germany, referring to the Sending Yugoslav Workers of Associated Labor Organizations from the Socialist Federal Republic of Yugoslavia and Employment in the Federal Republic of Germany on the Basis of Contracts for the Performance of Works (“Official Gazette of the SFRY – International Agreements”, No. 11/89), i.e. based on the Detachman, whose matter we have covered in its entirety in the previous text.
Finally, the employer cannot send to temporary work abroad an employee under the age of 18.
- B) Employee’s consent:
After the employee is informed about the living and working conditions abroad by the employer, the employee should decide whether he/she wants to be sent by the employer for temporary work and / or training abroad, since the sending can be carried out only with the prior written consent of the employee.
If the employee’s employment agreement predicts the possibility of sending him/her to work/train abroad, in that case it is considered that the employee has already agreed to the same by signing the employment agreement, and his additional prior consent is not required. However, the employee has the right to refuse the sending due to justified cases, such as pregnancy, special child care, his/her child’s age (up to 3 years of child’s age, and if the employee is a single parent, then up to 15 years of child’s age the refusal is considered justifiable), if three months have not elapsed since returning from work abroad, which lasted for at least 11 months continuously, as well as in other cases determined by the collective agreement or the employment rulebook. In addition, the employer may accept other reasons that justify the employee’s refusal to be sent to work abroad.
Procedure for sending employees to work abroad and obligations of the employer:
The first step is to provide the appropriate basis for sending employees to work abroad – concluding a business cooperation agreement between the domestic and foreign employer to which the employees shall be sent, obtaining an act on sending employees to work in case the employees are sent to the employer’s business unit abroad, or an invitation letter, in case the posting is done within the inter-company movement.
The employer is obliged to define the conditions of residence and work of the employee abroad, and especially the issue of covering all costs. The Law explicitly stipulates that the employer is obliged to provide the employee who is sent abroad with the following: health, pension and disability insurance and unemployment insurance; accommodation and meals according to the standards valid in the country to which the employees are sent, or in accordance with the conditions of accommodation and meals determined by the collective agreement / rulebook, if they are more favorable for the employee; transportation for arrival and departure from work or reimbursement of expenses for those purposes; transport to the place of work abroad and return to the Republic of Serbia; salary – cannot be less than the guaranteed minimum salary in the Republic of Serbia, as well as the guaranteed minimum salary according to the regulations of the country to which the employee is sent; health examination and preventive health measures of employees in preparation for the work abroad; assistance in obtaining work and residence permits, which are obtained abroad, according to the rules of procedure valid in the country to which the employee is sent, and securing that all the costs for visa and/or required permits for stay and work/train abroad are covered.
Therefore, the employer is obliged to secure that the enumerated conditions of employees’ residence and work abroad are met, while the manner in which the employer will do so (whether he will directly cover these costs or he will ensure that they are covered by the foreign employer to whom the employee is sent) is left to the employer’s choice and possibilities. The Law explicitly stipulates that, in the case of unequal living and working conditions in Serbia and the country to which the employee is sent, the employer is obliged to provide more favorable conditions. Otherwise, the employer is exposed to misdemeanor liability for which a fine in the legal range of 600,000 to 1,500,000 dinars is prescribed. The same is the penalty in case of the employer’s failure to provide the above-mentioned living and working conditions of the employees in the country of sending.
When it comes to social insurance of a sent employee, it is worth noting that the Republic of Serbia has concluded a number of bilateral agreements with other countries that regulate this matter, mainly by keeping the employee insured in the Republic of Serbia, while the duration of this insurance varies, depending on the agreement in question, i.e. the country to which the employee is sent.
Before sending to work / training abroad, the employer is obliged to inform the employee about the living conditions in the place where the employee should be sent (climatic conditions, currency, socio-political situation, specific health and other circumstances), with regards to the accommodation and food conditions provided to the employee during the stay and work abroad, about the distance from the place of residence to the place of work, etc., as well as on the contact person in the place of work abroad, who will be authorized to provide information to state and other bodies on sending employees and to provide additional information and notifications to employees who are temporarily working abroad.
The next step is the conclusion of an annex to the employment agreement between the employer and the employee, which provides the necessary written consent of the employee to be sent abroad under the conditions offered by the employer (hereinafter: the „Annex“).
This Annex must contain provisions relating to: the country, place of work and the period to which the employee is sent to work abroad; the job position and description of the work that the employee will perform abroad, if they change in relation to the work performed in Serbia; the amount of basic salary and the currency in which the salary will be paid, the elements for determining the salary, other pecuniary and non-pecuniary benefits related to the stay abroad; and to the working hours, vacations and holidays. A collective agreement, employment rulebook, or employment agreement may determine greater rights and more favorable working conditions than the rights established by the law, as well as other rights of employees sent to temporary work abroad. In the event that the listed acts determine greater rights, or additional rights of employees, or more favorable working conditions than those established by the law, and the employer has deafened to them and did not include them in the Annex, the employer has committed a violation for which a fine in the amount of 150,000 dinars is prescribed.
When the Annex is signed, and the sending of employee abroad has become certain, health examinations of the employee are organized at the expense of the employer and the procedure for obtaining a visa to stay and work abroad is initiated. Apon the finalization of this process, and the departure of the employee to work abroad, the employer is obliged to change the basis of insurance for this employee in the single database of the Central Register of Compulsory Social Insurance.
The rights and obligations arising from the employment, which relate to the employee who is sent to work abroad by the employer, are suspended ex lege while the work abroad is performed, except for the rights and obligations for which the law, employer’s general act or employment agreement (including its annex) otherwise determine, and the employer is issuing a decision on this employee’s suspension of employment during his/her work abroad.
The posted employee’s return
The legislator leaves the regulation of posted employee’s return matter to employers. Before the expiration of the work abroad period, the employee has the right to return to the country at the expense of the employer in cases and in line with the conditions determined by the collective agreement, employer’s rulebook, or employment agreement. Thus, it is possible to predict that the termination of the work abroad prior to the agreed deadline may be initiated by a decision of the domestic employer, foreign employer to which the employee was sent, by the employees’ will in case of legitimate reasons occurence, due to the force majeure, etc. Additionally, in the event of work termination initiated by the employee for unjustified reasons, it should be predicted by the above-mentioned acts that the employee shall return to the country at his own expense and is obliged to compensate the damage suffered by his employer due to this action of the employee.
In regular circumstances, the employee returns to the country after the expiration of work abroad period defined in the Annex, and has the right (which is also his/her obligation) to return to work with the employer within 15 days from returning from work abroad.
If the employee does not return to work with the employer within this period, such behavior of the employee is a reason for termination of the employment agreement by the employer. On the other hand, in case the employer denies the employee to return to work after returning from work abroad, the employer is subject to misdemeanor liability, for which a fine in the legal range of 400,000 to 1,000,000 dinars is prescribed, and, additionally, the responsible person at the employer will be fined in the legal range of 20,000 to 40,000 dinars.
Sanctioning employer’s actions outside the legal framework
Finally, sending employees to work abroad that deviates from the stated legal framework is a misdemeanor, for which a fine in the legal range of 600,000 to 1,500,000 dinars is prescribed, while the responsible person in the legal entity can be fined for this misdemeanor in the legal range of 30,000 to 150,000 dinars.