Can a temporary employment agency assign us workers from outside the EU?

A manufacturing business cannot staff its shifts and an agency offers it a ready-made team of welders from Serbia or operators from Ukraine. For the agency and for the business the workers are to join, the decisive point is the basis on which the foreign nationals work in Slovakia. The Employment Services Act (Act No. 5/2004 Coll.) in principle prohibits the assignment of third-country nationals and permits it only within a narrowly defined regime.

The basic rule: assignment prohibited

An employer or a temporary employment agency may not temporarily assign a third-country national under subsection 1(a) to (h) to perform work for a user undertaking. […] A temporary employment agency that has been operating for at least three years before filing the application under Section 21b(1)(a) may temporarily assign a third-country national under subsection 1(b) or (h) to perform work for a user undertaking in an occupation with a shortage of labour in the region under Section 12(ad).

— Section 21(4) of Act No. 5/2004 Coll. (unofficial English translation)

The reference to “(a) to (h)” covers all foreign nationals working on the basis of a Blue Card, a confirmation that a vacant post may be filled, or a work permit. The prohibition does not apply to nationals under Section 23a, who need no permit or confirmation at all; these include, for example, holders of permanent residence, persons granted asylum or temporary refuge. For them, assignment is governed by the ordinary rules of Section 58 of the Labour Code.

The exception for experienced agencies

An agency seeking to rely on the exception must satisfy every condition at once:

• three years of activity as a temporary employment agency before filing the application for a confirmation;
• a national holding temporary residence for the purpose of employment on the basis of a confirmation of a vacant post, or with an accepted application for such residence;
• an occupation with a shortage of labour in the region where the work will be performed;
• a confirmation from the labour office issued for the specific assignment; the agency’s written undertaking must also contain the user undertaking’s consent to the assignment (Section 21b(2)(a)).

Many of the conditions are assessed at the user undertaking rather than at the agency. The user must not have been fined in the last five years for breaching the prohibition on illegal employment (Section 21b(4)(a)); it, not the agency, must notify the vacant post to the labour office (Section 21b(4)(b) and Section 62(6)); and for shortage occupations it must have fewer than 45% third-country nationals among its total workforce (Section 21b(7)(f)). Assigned nationals count towards that share at the user undertaking, but not at the agency (Section 21(6)). The office may also request the assignment agreement between the agency and the user.

Once the assignment ends, the agency may assign the same national once more within their residence to a different user undertaking, on pay terms at least as favourable and on the basis of a new confirmation (Section 21(4), third sentence).

Duties during the assignment

The agency informs the labour office of the start and end of such an assignment within seven working days (Section 23b(2)) and hands the user a copy of the confirmation no later than on the starting date. The user undertaking should request and retain a copy of the residence document and of the confirmation, and if the national does not start within seven working days of the agreed date, it notifies the office (Section 23b(12)). The office revokes the confirmation if the assignment ends prematurely or if the agency’s licence is suspended or revoked (Section 21b(14)(d) and (e)).

And in Czechia?

Czech law does permit agency employment of a foreign national holding an employee card; for agency employment, the card application must be accompanied by a document identifying, among other things, the user undertaking, the type of work and the place of its performance (Section 42h(1)(g) of Act No. 326/1999 Sb.). A holder of an employee card issued for a specific vacant post may not, however, change employer or take up a further position where the future employer would be an employment agency (Section 42g(7) of the same Act). Further Czech conditions we assess case by case.

What follows from this

Before making an offer, an agency should verify each national’s residence title and compliance with the conditions of the exception; the user undertaking should verify whether the assignment creates a risk for it. How a customer is liable for a supplier’s workers is covered in our answer on liability for a supplier’s illegally employed workers. We structure agency contracts and processes through legal services for employment agencies and handle applications for confirmations and notifications to the labour office through employment of foreign nationals. Notifications on directly employing a foreign national are explained in our answer on what to notify the labour office when a foreign national starts.