Vladislav: Hello Andjelka. It is an honor that you have accepted to exchange opinions regarding the Labour Law. We could make this conversation like: you be you, and I will be a dissatisfied and insufficiently informed worker, with doubts resulting in questions. Then we will provide the answers together and discuss some legal and bookkeeping issues. But, let’s actually explain the essence of it.
Andjelka: Ok, Vladislav. Sounds interesting!
V: Let’s start with the questions then? Are you ready?
V: Ok, here is the first question:
It has been 24 months since I have started working under a fixed-term employment contract in a public company on a position of a typist. Now they have hired me through temporary and periodical jobs contract and somewhere I heard I will be fired after 120 days. Can they hire me after the expiration of these 120 days again on some other basis, based on temporary and periodical jobs contract?
A: These contracts on temporary and periodical jobs are for the jobs that are temporary and/or periodical by nature. They cannot last longer than 120 days during one calendar year. Temporary jobs are primarily short-term jobs such as sowing, harvesting, reconstruction of the works of art, surveying, etc. while the periodical jobs include short-term jobs that are not executed in continuity, but from time to time.
You should know that this is a contract for work out of employment. Therefore, you are not an employee of the company, but, let’s say, you “help”. This type of contract can be concluded with:
1. unemployed person,
2. part-time employee (official term is “employee not working full time”),
3. retired person.
Since you have been employed on the position of the typist before, and that, I presume, contract on temporary and periodical jobs was concluded for the same position, this is the way the employer tried to avoid legal provisions and find a way not to conclude a fixed-term employment contract with you, and still hire you.
Also, after the expiration of these 120 business days and the expiration of the contract on temporary and periodical jobs for which you are engaged with a current contract, the employer may without any legal obstacles conclude a new contract with you for temporary and periodical jobs for the execution of some other jobs at this company – that may also be named temporary and periodical.
V: So, I understand you now: in practice we can see that the employees are hired through temporary and periodical jobs contracts non-stop, regardless of the limit of 120 days per year, which I believe was not the intention of the employer. This is a paradox on its own: temporary job, periodical job, and the person is working non-stop.
A: I have no other choice but to agree with you.
V: OK...Next question:
I have been working continuously for 2 years and 2 months under a permanent employment contract and now I am out of work. Was I entitled to get a steady job?
A: First of all, Vladislav, we must stick to the legal terms. We cannot say “steady job” but a “permanent employment”.
V: Wow, you are strict….
A: Well, you have to be when you are a lawyer. This permanent employment could have been cancelled by the employer in case of a justified reason. These reasons are detailed and prescribed by the Labour Law. The procedure of dismissal depends on the reason.
V: Slow down, slow down. Let me translate what I just understood: so, the employer can fire me, but the employer must play under certain legal rules.
A: That’s right. The reason may be, for example, incapacity to work, violation of the work discipline, technological, economic or organizational changes, even the refusal to sign an employment contract annex…
Dismissal procedure is very strict. It includes the delivery of certain acts by the employer that you need to sign and legal advice, as well, so that you can dispute the legality of the dismissal in court, since you are entitled to it.
V: So, I need to get a paper that says I can go to the court with this?
A: Exactly. I must point out one more thing: the suit for the dispute of legality of dismissal can be filed with a competent court within 60 days from the reception of the dismissal notice. Have in mind that the 60-day deadline is preclusive, which means, if you do not file a suit in the stated period, this right can no longer be defended in court.
V: Wait, slow down with the “preclusive” … My name is not Webster. If I understood correctly, this means: as soon as I get the paper on dismissal, I go to see my lawyer immediately! To prevent 60 days from passing. After that, no regrets for not contacting you right away?
A: Vladislav, you can always contact a lawyer, but it is more difficult for a lawyer to defend you in court regarding dismissal after these 60 days. This is the current law.
V: Ok, got it. Moving on to the next question.
I was employed after 29 July 2014. I have been working for 6 months under a fixed-term contract, then I did not work for 4 months, then I worked for 5 months, then I did not work for 5 months and finally, by the third fixed-term employment contract, I worked for another 4 months. Will be employer hire me permanently now?
A: Let me read you something from the Labour Law: “Fixed-term employment may be concluded by the employer with the same employee for a period that cannot exceed 24 months with or without interruptions. Interruptions shall not include periods shorter than 30 days”.
Having in mind that a total of 24 months has passed since the beginning of the engagement with the employer, pay attention now – regardless of interruptions, you can no longer be employed by the same employer under a fixed-term contract. However, it is a matter of discretion and the desire to continue cooperating with you, whether the employer will conclude a permanent employment contract with you.
V: So, when 24 months have passed regardless of interruption in these 24 months, no more fixed-term, but permanent employment is possible. Can you clarify: what would happen if I was employed for a fixed-term before 29 July 2014? Does the passage of 24 months automatically mean that I am a permanent employee or not?
A: Expiration of more than 24 months of the fixed-term employment does not automatically lead to a permanent employment.
However, what is possible, but actually very rare in practice is to file a suit for the determination of existence of fixed-term employment that occurred through legal change – when the employee in accordance with the law, initiated a fixed-term employment and after the expiration of such period continued to work for at least five business days. Then, the initial fixed-term employment grows into a permanent employment, on the first day of expiration of such period. In case the employer disputes such change, competent court shall determine the existence of permanent employment, under the condition such change is proven in court, by verdict.
V: If I can clarify: I am working under a fixed-term contract. Then the period for which I signed the contract expires. Then I continue to come to work for five more business days. Then, it is considered I am a permanent employee!
How can I get to that position? I can secretly come to work and have proof of coming to work for each of those five days? Or is the error of an employer necessary?
A: No, you cannot sneak your way to work. Upon the expiration of the fixed-term contract, the employer is obligated to adopt a decision on employment termination, since the employment cannot be terminated only by the expiration of time for which it was concluded. Paper is mandatory, you know how the legislation works . In case the employer does not adopt the said decision, or signs you off with competent services, or omits to inform you orally that cooperation with you shall not be continued, and you continue to come to work, upon the expiration of 5 business days it shall be considered that the permanent employment has been established. The tricky part is that this transformation into a permanent employment needs to be proven in court in case the employer disputes the employment subsequently.
V: Ok, it seems to me that this can be only done by a careless employer, or the one without the legal department to think about this (meaning they should call you ) or that feels that legal department is not necessary, but is not careful enough regarding obligations towards workers, and this happened.
Now I have a frequent question for all those that have become or are becoming moms since the adoption of the new Labour Law. Imagine I am a fixed-term employee that is currently on maternity leave. And I am coming back to work after more than 24 months. Am I automatically qualified to be a permanent employee?
A: Labour Law prescribes special protection of employees during pregnancy, maternity leave, leave for child care and leave for special child care. Namely the Law prescribes that the employer, during stated conditions, cannot cancel the employment contract for an employee. Employer is obligated to offer an annex to the employment contract to a fixed-term employee that extends the fixed term employment until the expiration of the right to use the leave, without detailing the fixed date of return.
On the other hand, upon the expiration of leave, the employer is entitled not to extend the employment contract, that is, not to offer a permanent employment contract, regardless of employee’s qualifications.
V: To clarify, if I am employed for a fixed-term and I leave for pregnancy and then follow by a maternity leave then – even though more than 24 months have passed, the employer gives me an annex to sign, but only until my maternity leave ends or, maybe, until my leave for child care ends. And the employer has no obligation to employ me permanently?
A: That’s right. Although, Vladislav, I really cannot imagine you pregnant and on maternity leave :) !
V: We’ll discuss it later. Here is one more question where I am pretending to be pregnant.
I am employed on 15 January 2017 for a fixed term of 3 months. On 15 February 2017 I notified my employer that I am pregnant. Three days after this, I was offered a contract annex where my salary was reduced three times, since my employer told me I abused his trust because I only started working a month ago. I am not receiving any information on extending the contract from my employer. What do I do?
A: Here we need to clarify two things: salary cut and the possibility of contract extension under these circumstances.
First, contract extension: Statement of the employer that you have abused their trust must not impact the preservation of your working position. We have already discussed a similar case, but let’s repeat: Labour Law prescribes special protection of employees during pregnancy, maternity leave, leave for child care and leave for special child care. Namely the Law prescribes that the employer, during stated conditions, cannot cancel the employment contract for an employee. Employer is obligated to offer an annex to the employment contract to a fixed-term employee that extends the fixed term employment until the expiration of the right to use the leave, without detailing the fixed date of return.
Cancellation of the contract would be annulled if, on the day of adoption of the decision on dismissal the employer was familiar with the circumstance of pregnancy, or if the employee, within 30 days from the termination of employment notifies the employer on pregnancy with appropriate certificate of a competent physician or other competent authority.
However, upon expiry of leave, employer is entitled not to extend the employment contract, that is, not to offer a fixed-term contract, regardless of your qualifications and expertise.
Now, regarding salary cut: Regarding this issue, such reduction is possible from a legal standpoint, but there are certain conditions as well. First, it would have to be followed by the offer to conclude an annex and the annex including clear elements for salary determination, with the advice on consequences of not signing such an annex, that is, with legal advice for the dispute of legality of the employment contract annex.
V: Full answer, no question there… I could conclude, in short: The employer may not fire you, but, unfortunately there is a way of saying: ok, here is a three times lower salary for you, then! This is followed by a condition that there is a way of clearly and legally allowing such reduction.
Here is one question related to the start of the fixed-term employment, before the new Labour Law:
I have been working under a fixed-term employment contract since 01 October 2013, with 6-month contract extensions. On 01 October 2014 my employment was extended with a new employment contract in accordance with the new Labour Law. Does the calculation of 24 months include previous employment contracts or is the 24-month period calculated from the beginning with the adoption of the new law on labour and signing the new contract?
A: 24-month period includes previous employment contracts.
V: Andjelka, I am not sure about this. I really think that the 24 months are calculated all over again, that is, that the 24 months are calculated from the moment the law prescribed these 24 months. Before, it was 12 months, I think, and I think there were no 30 days of break that are actually not a break. Let’s open this as a topic of our next interview… we have got to leave something for the next “Vladislav and Andjelka” show.
Check out this question:
I have been employed under a fixed-term employment contract since 01 August 2014 and the next contract expires on 01 August 2016. Can the employer continue to extend the fixed-term contract or is it obligatory for the employer to deliver a permanent employment decision to me upon the expiration of these 24 months as prescribed by the new law?
I presume that you will quote formal terms now, but let’s try to get the average reader to understand this.
A: Pursuant to Article 37 paragraphs 1-5 of the Labour Law, the fixed-term employment contract can be concluded for employment predetermined in duration for justifiable reasons – by period, execution of a certain job or occurrence of a certain event, but for a period of 24 months maximum. For a longer period, such contract may be concluded only for the replacement of an absent worker – until the return of such worker; for work on a certain project – until its completion; with a foreign citizen – until the expiration of its work permit; in a first year of operation of the newly formed employer – for a maximum time period of 36 months; with an unemployed person that is missing a maximum of 5 years to reach one of the terms for retirement. Only the first three reasons out of these may be the basis for the conclusion of the new fixed-term employment contract with the same employee.
This all means that after 24 months in this situation, you cannot work with the same employer based on the fixed-term employment contract.
V: So, to put it more simply, in general case, after 24 months, the law prescribes:
• permanent employment,
• other form of engagement, or
• leaving the employer.
And what about public companies? Upon expiration of 24 months, can the employer hire me after, for example, 40 days on fixed-term basis, since, due to the Decision on Employment Prohibition, it is impossible to have permanent employment?
A: Look at the previous response once more. And I will add: in short, increased work volume cannot be considered a basis for the extension of the fixed-term contract after 24 months, unless it is a project, when the contract may last depending on project completion.
On the other hand, whether the employer will offer a permanent employment contract depends only on the process and organization of work, decision of the employer as well as meeting conditions in the process of acquiring consent for new employment and additional employment with the users of public assets, such as:
1) filling free, or vacant working positions;
2) total number of fixed-term employees due to increased work volume, persons engaged through service contracts, contracts on temporary and periodical jobs, through youth and student associations and persons engaged on other basis with a certain user of public assets cannot exceed 10% from the total number of employees with such user;
3) for the continuation of procedure for filling vacant jobs with the user of public assets that have started but have not been completed until the date of coming into force of the Law on Amendments of the Law on Budget System (“Official Gazette of the Republic of Serbia” number 108/13).
V: Ok, ok. That’s a detailed answer. I have a feeling that both employees and employers in public companies are in a dead-end. The first due to the inability to be employed, and the second for having their hands tied to employ new staff in case their work really increases. So, they manage through temporary and periodical jobs, youth or student associations, service contracts…
Now, for the end, here is a provocative question:
“There are no obstacles to establish a new fixed-term employment contract for another position with the employer after the expiration of 2 years under a fixed-term contract for a work position. The employer, in this case is not obligated to offer a permanent employment contract.” This is a comment from a web site. Is this true?
To the best of my knowledge, it is not possible for a legal entity to sign a new fixed-term employment contract with the same person, after the expiration of 24 months, except for these exceptions you just explained. No changes of positions or reporting are not allowed. What do you say?
A: Vladislav, you are right. This was not possible under the old law, as well, but the problem and confusion were created by a bad practice of employers and lack of control of competent inspections.
Legal provisions of the fixed term employment contract are related to the issue of contract duration with the same employer, not the issue of a position. Therefore, the difference between the old and the new law is that the old law prescribed a maximum duration of 12 months for the fixed term employment contract and the new law prescribes a maximum of 24 months, with certain exceptions.
V: See, Andjelka. I hope you realized all the doubts employees may have in practice. This is why we hired you as the expert in this area .
A: The new Labour Law brought novelties with the purpose of protecting the rights of employees, but, as with any other law, it has some specific provisions, so it should be studied in detail, in order to be applied properly.
V: Thank you, Andjelka for the interview. I hope we will have some more good interviews on this topic?
A: Feel free to call me, Vladislav.