Did the legislator really intend on giving smaller employers so much freedom when engaging agency workers?
Employment Relationship Act (Zakon o delovnih razmerjih, ZDR-1) extends certain benefits to smaller employers (i.e. employers with 10 employees or less), with the intent to simplify their business operations. One of these benefits is an exemption from the agency worker cap.
ZDR-1 exempts smaller employers from the provisions that cap the number of agency workers, employed for a fixed-term by an agency (these agencies are employers who are licensed to assign workers to work under the direction or supervision of another employer), that an employer (user undertaking) may engage. This exemption is related to Article 59(3) ZDR-1 which states: “The number of workers assigned to the user undertaking may not exceed 25 per cent of the number of workers employed with the user undertaking, except if otherwise provided by a branch collective agreement.” It should be noted however that the cap does not include workers who are employed for an open-ended term with the agency.
Since the purpose of this cap was to restrict employers from using mainly agency workers instead of employing their own workers, there seems to be no justification for exempting smaller employers from this cap. The abovementioned provision actually allows smaller employers to engage a virtually unlimited number of agency workers, irrespective of whether their employment contract with the agency is open-ended or fixed-term.
Although the circumstances surrounding these abusive practices have not been examined by the courts yet, some legal experts stated that, in order to protect the rights of workers, the “principle of primacy of fact” should apply. Agency workers conclude their employment contract with the agency, but are assigned to work with a user undertaking for a certain period. If the workers were only formally employed by the agency but actually worked for the same user undertaking for an open-ended term (and not fixed-term), applying the “principle of primacy of fact” should lead to the conclusion that there is an employment relationship between the worker and the user undertaking (since the user undertaking would be using the agency only to procure the services a pre-chosen worker). However, we will have to have to see whether case law follows suit.
