Occasional Assignment of Workers
The occasional assignment of workers is regulated in articles 295 to 308 of the Cape Verdean Labor Code (hereinafter CLCV).
However, and despite regulating its regime, the CLCV, has not established or defined in any of its legal precepts, a notion of occasional assignment of workers.
However, we can find this notion in article 288 of the Portuguese Labor Code, which provides that “The occasional assignment of workers consists of the temporary and eventual availability of the employee’s own staff of an employer to another entity, to whose management power the worker is subject, without prejudice to the maintenance of the initial contractual bond“.
Analyzing the referred content, it appears that there is no change regarding the person of the employer or the rights and duties that they are subject to, except for the fact that the transfer allows the transferee company to legally exercise the power of direction over the transferred worker. In turn, the transferor company maintains the exclusive power to discipline the transferred worker, unless an agreement between the worker and the transferor and transferee companies.
However, for a better understanding of the subject, it is necessary to first understand the concept, both of the transferor company, as well as of the transferee company.
Therefore, the transferor company is the one that transfers the worker, in turn, the transferee company is the one to which the worker is assigned.
The occasional assignment of a worker is only allowed / admitted when the following conditions are cumulatively met:
- Temporary and exceptional addition of activities in the transferee company;
- Establishment of a concession period;
- Worker agreement.
It should also be noted that the assignment contract should regulate the responsibility of the assignor and assignee for contributions to Social Security, for compulsory insurance for accidents at work, the exercise of the right to vacation, as well as subsidies and other rights that have expired or will expire in favor of the assigned worker during the period of the assignment contract.
However, recourse to this occasional legal provision mechanism presupposes the fulfillment of some formal requirements, especially, the assignment agreement must appear in a written document, signed by the assignor, the assignee and the employee; must identify the assigned worker; must substantiate in detail the need for the assignment, the function that it should perform, the start date and duration of the assignment and also the time and place of work.
It should be noted that the assignment contract can only be considered legal if it contains the express declaration of agreement of the worker.
In the concession contract, a trial period of a maximum of 30 days may also be established, but it can never be longer than ¼ of the duration of the contract.
Having just cause the worker can terminate the assignment contract under the terms and conditions set out in the Labor Code for termination of the contract on the employee’s initiative.
However, it is a specific cause for the termination of the assignment contract, the modification by the assignee entity of the previously established working conditions, without, for that, the worker having had the agreement or consent.
Once the contract is terminated, the worker re-enters the transferor company, which cannot oppose the re-entry, whatever the reason for the resolution.
During the assignment period, the law established joint and several liability of the assignor and assignee companies to the employee, for obligations entered into by either one or the other.
Duties of the assigned worker.
During the execution of the occasional assignment contract, the employee is subject to the applicable employment regime in the transferee company with regard to the mode of execution, working hours, hygiene, safety and medicine at work and access to social facilities.
The exercise of disciplinary power is, during the execution of the concession contract, the transferor company, unless there is agreement between the company and the worker.
Rights of the assigned worker.
Concerning the rights of the seconded employee, the Labor Code stipulates that it receives the consideration that the company had transferor, but if, eventually, the employees of the transferee company receive equal treatment for better work, the transferred worker will also be entitled to such treatment.
The assigned worker will also have the right to all regular and periodic allowances due by the assignee to their workers for identical work, not being harmed in the holiday period to which he is entitled in the year of the assignment, which cannot be replaced by the payment of the corresponding fee.
Consequences of the unlawful recourse to the occasional worker transfer mechanism.
The Labor Code establishes that the unlawful recourse to the occasional assignment of workers, the absence or irregularity of the document that certifies it, grant the assigned worker the right to choose to join the staff of the transferee company, under the fixed-term employment contract regime and the seniority resulting from his work at the transferor company. The aforementioned option right must be exercised until the end of the assignment, by means of communication to the assignor and assignee companies by registered letter with acknowledgment of receipt, assuming receipt of the same, on the day after the shipment, when, for reasons not attributable to the worker, it is not received.
Therefore, occasional employee surrender is a mechanism that the legislator has made available to companies, thus allowing a more effective and efficient management of its workers, mainly, of its workforce.