When concluding an employment contract with a temporary-work agency, certain statutory requirements and specific restrictions apply.
Parties to the employment contract
The principal parties to this type of employment contract are:
- The worker or employee
- The employer – an undertaking registered with the Employment Agency as a provider of temporary employment. Companies that do not have such registration are not entitled to conclude employment contracts under Article 107р of the Labour Code.
The conclusion of an employment contract for temporary work makes it possible for the worker or employee to be assigned to work for a fixed period at a user undertaking. It is important to emphasise that no legal relationship arises between the worker and the user undertaking. No contract or supplementary agreement is signed. It is the employer providing the temporary employment, and not the user undertaking, that undertakes to pay the employee's remuneration.
Requirements for the employment contract
The contract between the temporary-work agency and the employee must be concluded in writing and contain all the particulars required under Article 66 of the Labour Code. The employer is obliged to register the contract with the НАП within three days of its signing, but before the employee is assigned to the user undertaking.
For the employment relationship to take effect, the temporary-work agency must issue a written instrument assigning the employee to the user undertaking. The instrument is provided to the employee after he has received his copy of the employment contract and a copy of the notification of registration with the НАП.
The assignment instrument must be served on the employee against signature at least one day before the start of work at the user undertaking. If the work does not correspond to the employee's qualifications or state of health, or is located in a different populated area, the employee is entitled to refuse the work, which is done in writing upon receipt of the instrument. In the event of such a refusal, no employment relationship arises.
Grounds on which the employment relationship does not arise
If the employee does not commence work within the agreed period, the employment relationship is deemed not to have arisen. Should the employee fail to report for work at the user undertaking, the latter must inform the temporary-work agency, which in turn notifies the НАП in order to delete the registration of the contract.
Specific conditions of the employment contract under Article 107р of the Labour Code
In a contract under Article 107р of the Labour Code, the place of work must be specified as the address of the user undertaking, and not that of the employer. It is important to record that the employee will perform work at the user undertaking under its direction and supervision, since this is a mandatory condition.
The contract is always for a fixed term, and may be concluded in the following cases:
- For the completion of a specific job
- To replace an absent worker or employee
Where the contract is for the completion of a specific job, that job must be described precisely as to its nature, volume and quality. The work obligation should not be defined by a specific end date, so as to avoid its recharacterisation under Article 68(1)(1) of the Labour Code.
If the contract is for the replacement of an absent employee, it must state the name of the person being replaced and his position, as well as the duration of his absence.
Restrictions applicable to a contract under Article 107р
An employment contract with a temporary-work agency may not introduce clauses restricting an employment relationship between the user undertaking and the employee, whether during or after the expiry of the period for which the employee is assigned.
In addition, the temporary-work agency is prohibited from charging the worker any fees for intermediation or for assistance in taking up employment.
Prohibitions and working conditions
An employment contract under Article 107р may not be concluded for the performance of work under first- and second-category labour conditions. If there is any suspicion that this requirement is being circumvented, the Labour Inspectorate carries out an inspection of the actual working conditions.
Likewise, it is not permitted to assign workers to a user undertaking in order to replace employees on strike, where the strike is lawfully organised.
A restriction also exists as to the number of workers assigned to the user undertaking. Their number must not exceed 30% of the total number of the undertaking's workers employed under other types of contract.
Pursuant to Article 107у(5) of the Labour Code, a user undertaking may not hire workers through a temporary-work agency unless at least six months have elapsed since a collective redundancy, so as to avoid replacing permanent staff with employees on temporary contracts.
Conditions when working in another State
It should be noted that the exception laid down in Article 12(1) of Regulation No 883/2004 does not apply to undertakings that provide temporary employment and assign their employed persons mainly or wholly to work in one or more Member States other than the country in which the registered seat of the temporary-work agency is located. This exception is significant for determining the social-security legislation applicable to the worker or employee. According to the judgment of the Court of Justice of the EU in Case C-784/19, for an undertaking established in Bulgaria to be recognised as "normally carrying out its activities" in the country, it must perform a substantial part of its activity of supplying temporary workers to user undertakings that are likewise established and operating within the territory of Bulgaria.
Termination of the employment contract
In addition to the standard grounds for termination of an employment contract, a contract under Article 107р also has a special ground – the worker may terminate the contract without notice upon concluding a contract with a new employer that does not provide temporary employment. The employer may claim compensation for the notice period not observed in the event of a dispute.
If you need legal advice in connection with the requirements for an employment contract with a temporary-work agency, contact us on telephone 0887550706 or by e-mail: [email protected]
