This year, Act No. 285/2020 Coll. was adopted, which in particular amends Act No. 262/2006 Coll., the Labour Code (hereinafter the “Labour Code”). The law came into effect in part on 30 July 2020, but some legal constructs will not be effective until 1 January 2020, whereas one of them is also a shared work position. Shared work position is one of the forms of flexible employment and is a novelty in the Czech legal system.
Basic principles of a shared work position
The regulation of a shared work position is concentrated in a single provision, namely Section 317a of the Labour Code. By utilising the shared work position, two or more employees can be employed a tone position once several conditions are met, and those employees will take turns in the performance of work.
The prerequisites for creating a shared work positions are as follows:
- there must be two or more employees at the same employer;
- employees must have the same type of work;
- employees must have an employment contract with the employer with shorter working hours.
The employer must conclude a separate agreement with each employee, according to which the employees will schedule their working hours in shifts for the shared working position by mutual agreement so that each of them completes the average working hours in a maximum of four weeks. At the same time, the sum of the weekly working hours of employees at the one shared working position may not exceed the length of the specified weekly working hours, unless one employee represents the other.
Agreement for the shared work position
As mentioned above, the employer must conclude in writing a shared work position agreement separately with each employee. The content of the agreement should contain more detailed conditions for the organization of working hours and may be agreed for a definite or indefinite period.
The agreement can be terminated by both the employee and the employer, for any reason, even without stating a reason. The notice period is 15 days. This relatively short notice period allows both employees and employers to easily leave the shared work position regime. If the agreement on the shared work position of at least one employee expires, the regime of such work will apply to other employees within the same shared work position until the end of the current four-week period.
In addition to adjusting the schedule of working hours, we recommend that the agreement also includes an adjustment of the scope of work that will apply to individual employees, or other rules of operation of employees in a shared work position, notification and representative duties, etc. It is possible to define, for example, the specific competencies of each employee within the position.
Working time schedule
The employees themselves are responsible for submitting a joint written working time schedule to the employer in accordance with the terms of the agreement. The employer must receive a prepared schedule from the employees at least 1 week before the beginning of the period for which the working hours are scheduled. In the event that employees do not submit a joint working time schedule in time, the employer shall determine the working time schedule in shifts without undue delay. If employees want to propose changes to the schedule, they are obliged to inform the employer in writing at least 2 days in advance, unless they negotiate otherwise with the employer.
If one of the employees of one of the shared work position is absent due to an obstacle to work or leave, the employer may not require another employee in the same position to replace him or her without that other employee’s consent.
Consent may be given directly or may be given separately for a specific case of representation. We recommend arranging consent for employee representation in a shared work position agreement in order to reduce the administrative burden and ensure continuity of work.
Specific rules for mutual representation can be set out in a shared work position agreement, which we strongly recommend.
Advantages and disadvantages from the perspective of the employer
The main advantage of the shared work position regime is that the employer does not have to create shift schedules himself, as he would be obliged for part-time employees who do not have a shared work position. In the case of a shared work position, as mentioned above, employees are obliged to agree on a work schedule together and submit it in writing to the employer in advance.
The Ministry of Labour and Social Affairs also announced the possible provision of a contribution for employers who will use this legal concept, but the specific form and amount has not yet been published.
Disadvantages include the fact that a shared work position cannot be used for employees with agreements on work performed outside of the employment relationship, i.e. an agreement on work activities and an agreement on the performance of work. Another disadvantage is the need to conclude a shared work position agreement and adapt it for each employee, which can be more administratively demanding. Disadvantage is also the requirement for the consent of each employee to represent absent employees within the same regime.
In general, unfortunately, we consider the adopted legislation on the shared work position to be so formalistic and not sufficiently flexible for the use of this legal construct that we are afraid that the disadvantages for employers will outweigh the advantages.
Tour de GDPR and privacy
Given that employees of one shared work position have the same type of work and should be interchangeable, it is appropriate for the employer to assign one e-mail box to these employees, which they will share with each other.
This e-mail box should not contain the name of any of the employees, its name should be rather of a general nature, for example in the form of the name of the work position towards which the employees will take turns. This has advantage not only in terms of clarity for employees who will not have to forward work e-mails when they are not at work, but primarily for employers.
Employers who assign an e-mail box to employees that contains the employee’s name in the e-mail address (so called private work e-mail address) may encounter a problem when they need to access the employee’s e-mail box.
Private work e-mail addresses have a high level of privacy protection and the employer needs an objective reason for each individual entry into the employee’s e-mail inbox and can basically check only the e-mail headers (recipient, subject) and only after assessing that it is an email that may be relevant and only in such case may open it. This can be problematic especially in the case of a long-term illness of the employee or after the termination of the employee’s employment.
Therefore, we especially recommend that you assign general e-mail boxes to employees of one shared work position, because privacy is weaker for these mailboxes, making it easier for employers to check the mailbox after employment ends and pass it on to another employee.
The shared work position is currently probably the strongest manifestation of the so-called flexicurity in the amended Labour Code and has a number of positives and negatives. One of the biggest advantages is the potential reduction of the administrative burden related to work scheduling in connection with the increase of work flexibility for target groups of employees. Conversely, a requirement for an employee’s consent to represent colleagues outside of his or her own shift may be rather disadvantage.
Unfortunately, it is necessary to point out that in our opinion this is a legal construct rather unusable in practice and for its successful functioning in practice, the employer will have to create elaborated conditions so that the introduction of this construct does not burden the employer even more.
Whether the legal construct of the shared work position will work in practice only time will tell. Overall, however, there are certainly employers and employees who will welcome this legal construct and will serve them to facilitate the performance of work.
If you have any questions, do not hesitate to contact us.
Tereza Pšenčíková, LL.B., LL.M., junior lawyer – email@example.com
Mgr. Jakub Málek, partner – firstname.lastname@example.org
22. 12. 2020