Act on Labour Inspection will be repealed on March 2021. Although there is a large overlap between the new legislation and the current act, the promulgation of the law provides a good opportunity to review the (future) rules of labour inspection.
Under the regulation, the employment supervisory authority will be responsible for examining that the employer complies with the minimum requirements of the legislation governing the employment relationship. The minimum requirements are not specified by law, but according to the available information, these include mandatory provisions of labour law including cases where the parties derogate from a dispositive rule in an unlawful manner and provisions that declare obligations under EU Law. Typically, the minimum rules include mandatory provisions governing legal declarations and their mandatory content, statutory working hours, rest periods, their registration, or wages and the issuance of certificates.
Like in the current legislation, the authority will be entitled
- to classify the legal relationship between the employer and the employee, and to classify the relationship established on the basis of the transfer of the employee for the purpose of work and on the basis of the actual employment,
- to establish the identity of the employer on the basis of a presumption,
- to establish the existence of an employment relationship between certain parties, and
- to monitor compliance with the obligations overtaken in respect of employment aid.
The presumption of the responsibility and employer qualification of the entrepreneur managing the activity is described by law as a subsidiary rule in cases where the identity of the actual employer cannot be ascertained. In the case of a presumption as to the identity of the employer, the employer shall be:
- who is responsible for the coordination of the activity in accordance with the contract (agreement) between the parties carrying out the activity at the workplace,
- who effectively directs the activity at the workplace,
- the person on whose premises the work is being carried out.
The law stipulates that the employment inspection authority may carry out on-site inspections at all employment sites without a separate permit and obligation to prior notification. The law further states that, in addition to the powers provided to all authorities by the General Administrative Procedure Act (e.g., entering the area affected by the inspection, examine and make copies of any document), the authority is entitled to view the data recorded by the security equipment at the place of inspection and the data of the equipment recording the entry and exit at workplaces and to make copies thereof, and it is also entitled to check the identity of the persons involved in the inspection and to process their tax number and social security number, also to request the information necessary for the inspection and to interrogate such persons as witnesses.
The law also changes the system of sanctions that can be applied by the employment supervision authority. The possible legal consequences will now be in line with the provisions of the Law on Sanctions for Administrative Infringements, which will enter into force in January. In addition to the sanctions indicated therein (warning, administrative bail, administrative fine, disqualification and confiscation), the authority may prohibit the employment and impose labour fines.
The law also sets objective and subjective deadlines for the application of sanctions. No administrative sanction shall be imposed if one year has elapsed since the infringing conduct became known to the authority. After three years from the commission of the infringement, an administrative sanction may be applied if:
- the infringement has started more than three years ago is still exist at the time the official inspection is initiated, or
- the administrative court or the supervisory body has ordered the employment supervisory authority to conduct a new procedure.