Secondment Legal Issues
A “secondment” is the process by which an employee moves to another company for specific purposes for a certain period of time. Assignments can take place nationally and internationally. At Cantwell & Goldman PA, our international business lawyers can prepare posting agreements on behalf of foreign and U.S. employers, as well as review and negotiate posting agreements on behalf of senior executives. If the posted person is a foreigner, the period of posting is limited to the duration specified in the posted person`s work visa. Section 19 of the Immigration Act 2002 requires foreign nationals who intend to work in South Africa to obtain a work visa (in the form of a general work visa, an essential skills work visa or an internal transfer visa). General work visas are valid for the duration of the employment contract with a maximum period of five years; Work visas for essential skills are valid for up to five years, and internal transfer work visas are issued for a period of four years and cannot be renewed or renewed. Net Lawman offers two models of secondment contracts for commercial and non-commercial organizations. The displayed person also wants to be protected from the host, who employs the displayed person directly at the end of the posting period or who competes with the displayed person based on the information received during the posting.
A posting occurs when an employee (or group of workers) is temporarily assigned to another organization or part of their employer. The employer and the seconded person must undertake to treat as confidential all information received by the seconded person from the host Member State during the period of posting. This obligation should continue to exist after the termination of the contract. The parties must also agree on the circumstances in which confidential information may be disclosed. An international posting is the cross-border transfer of the posted worker to an international company. A formal agreement, called a “secondment agreement” between the employer, assignment and host, is required to govern the relationship between the employer, assignment and host. The posting agreement must take into account the laws of the employer`s country and the host country. If it is possible to make a dismissal, it is necessary to determine the duration of the dismissal and whether the seconded person will have the opportunity to serve the notice period in order to terminate the posting or simply his or her employment relationship with the posting. However, such liability and compensation provisions are generally inappropriate in a posting agreement. In the case of a secondment, the sending company provides an employee instead of providing a service.
A shipping company is sometimes only compensated for the employee`s costs (perhaps with a minimal administration fee) as opposed to a full service fee. During the secondment, the employee works within the host company`s organisation and is controlled and monitored by the management of the host company. In the performance of daily tasks, the seconded employee is often indistinguishable from the host company`s own employees. In these circumstances, why should the posting undertaking be held responsible for the work of a worker over whom it has no control (or very little control) during the period of posting? Many of the risks and liabilities arising from the posted worker`s work are better borne by the other party – the host company. The structure and design of the liability and compensation provisions in secondment agreements need to be carefully considered so that liabilities are allocated significantly given the nature of the relationship and in light of the insurance policies of both companies. Applicable local laws should also be considered in determining how the posting may affect workers` compensation and personal injury insurance to ensure that all parties receive adequate protection. There are a number of different terms used to refer to the three parties involved in a detachment. This section assumes that the secondment is with another organization, that the original employer (or seconded employer) is called “employer” or “dismantler”, that the employee can also be called “seconded” and that the organization that is to use the services of the seconded person is called a “host”. This article describes the employment relationship between the primary employer and the posting employer, as well as other important employment issues. If you are an employee who is considering applying for a secondment or an employer who is considering sending someone to another organization, we hope this reading will be helpful. An employee`s contractual right to leave cannot be restricted without his or her consent.
In general, the parties agree that the seconded person is entitled to annual leave, as specified in the employment contract. However, the employer and host must determine how leave requests are to be handled during posting, by . B to whom requests for leave must be submitted for approval. The agreement may contain provisions limiting the host offering employment to the posted worker during or for a certain period after the posting. If the disclosure concerns the fact that the information is provided outside the European Economic Area, the seconding officer must ensure that adequate protection exists and may need to include specific provisions in the posting agreement. If the secondment is made to a separate legal entity, e.B to another member of the employer group, the employer and the host may wish for a formal agreement. In most cases, the agreement involves the secondment of a specific person. However, if the assignment officer or host chooses the employee to provide the services, the process must be carried out in the same manner as a normal recruitment.
As a rule, the seconded person continues to pay the salary of the seconded person and all associated costs (in particular income tax and social security contributions). If the detachment is a commercial agreement, the host will usually reimburse these fees. However, it should be clear that liability and indemnification clauses in a secondment agreement are central provisions, but often insufficient thought has been given to their structure and design. A common mistake is to include liability and indemnification provisions that are appropriate for a service contract, but are absolutely not suitable for a posting agreement. This can happen if the author misunderstands the nature of a secondment and how it differs from a service contract in some fundamental respects. In a service contract, the recipient pays for a service to be provided. The service provider is generally fully responsible for the provision of the service, including monitoring its employees and ensuring that the work is performed to an appropriate standard and within the agreed deadlines. A service contract often contains provisions that transfer responsibility for the work to the service provider, including compensation to protect against the negligence of the service provider`s employees in the performance of the work or against accidents at work. Ideally, the agreement determines the duration of the secondment. There are other circumstances in which the parties wish to provide for the termination of the contract.
For example, the parties must check whether they should terminate the contract in the event of a mandatory impossibility of performance or by termination for breach of contract or whether the seconded person proves to be unfit for work. The parties may also provide for cancellation by notification or by appointment. Unless otherwise agreed, ownership of the intellectual property created by an employee in the context and extent of his employment shall be transferred to the employer […].
