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Applicable law and working conditions

Applicable law

When choosing the law applicable to the contract of employment of the posted worker, the Private International Law Act and the Working Conditions of Employees Posted to Estonia Act (ELTTS) applies. Regardless of the chosen law applicable to the employment contract, the posted worker must, in any case, be guaranteed the working conditions established in Estonia on the basis of the Working Conditions of Employees Posted to Estonia Act. If the provisions of foreign law regarding working conditions applicable to the employment contract are more favourable to the posted worker than the Estonian provisions, the more favourable provision shall be applied to the employee.

Compare with the same national law of your country, as the law of the more favourable country applies pursuant to Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I): http://www.posting-workers.eu/.

 

Wages

Pursuant to section 5 subsection 1 point 3 of the Working Conditions of Employees Posted to Estonia Act, an employee posted to Estonia must be guaranteed the wages and overtime compensation valid in Estonia. According to section 5 subsection 1 point 5 of the Employment Contracts Act wages is the agreed remuneration payable for the work, including remuneration payable based on the economic performance and transactions. Pursuant to section 29 subsection 6 of the Employment Contracts Act, an employee may not be paid less than the minimum wage established by the Government of the Republic. The minimum wage is therefore one of the types of pay that must be guaranteed to the posted worker. In addition to the minimum wage, the posted worker must also be guaranteed the payment of other types of wages, which are mandatory under Estonian law and extended collective agreements. Such types of wages can be considered, for example, additional wages for working on a public holiday and wages for night work, as well as wages for the time when the employee is not guaranteed a job.

Section 5 subsection 11 of the Working Conditions of Employees Posted to Estonia Act provides for the difference in wages to be paid to employees in the road transport sector. The employer must ensure that the employee in the road transport sector posted to Estonia is subject to the minimum wages established in Estonia.

For the purposes of annual leave, allowances paid in cash in connection with a mission shall be treated as part of remuneration, unless they are paid to cover travel, accommodation and subsistence expenses incurred during the mission.

 

Applicable working conditions

Pursuant to section 5 subsection 1 of the Working Conditions of Employees Posted to Estonia Act, the employer is obligated to ensure the following valid working conditions in Estonia for the posted worker:

NB! The minimum wage must also be guaranteed to posted road transport sector employees.

 

 

Duration of annual holiday

NB! Exception: This condition does not apply to postings of up to eight days if the posted worker is a skilled worker whose duty is the initial assembly or first installation of goods necessary for taking the ordered goods into use, if such work is an integral part of a subscription contract. The exception is not applied if the work done by the posted worker is connected with construction work involving the construction, renovation, maintenance, alteration, or demolition of buildings, including excavation work, earthmoving work, actual construction work, the assembly and disassembly of prefabricated elements, connection and installation works, modification, renovation, repair, disassembly, demolition, maintenance, painting, cleaning, or repair works. Whereas, in the calculation of a posting period of up to eight days, the periods of time worked by another employee posted to Estonia by the same employer to perform the same work in the year leading up to the commencement of the posting are taken into consideration.

In the case of the application of the annual holiday, monetary compensation in connection with the posting is considered a part of the wages, unless it is paid to cover travel, accommodation, or meal expenditures incurred during the course of the posting.

The employee must be compensated for expenses related to business trips (for example, vehicle costs and accommodation costs). If the conditions of employment applicable to the employment relationship do not specify whether the expenses incurred in the performance of duty are to be paid or in the case of payment, what part of it is paid to cover the actual costs of the posting and which part is the salary, all compensation for expenses incurred in the performance of duty are deemed to have been paid to cover actual costs arising from the posting.

In the event of the failure to comply with the conditions governing the payment for working time, rest time, remuneration, and compensation for overtime work of an employee posted to Estonia, the Labour Inspectorate has the right to assign a penalty of up to 300 fine units to a natural person and up to €3200 to a legal person (employer, a member of its management board or other representative, to whom the performance of the corresponding obligation had been delegated) pursuant to section 91 of the Working Conditions of Employees Posted to Estonia Act.

 

Duration and extension of the posting

The employer must apply the working conditions prescribed in section 5 subsection 1 of the Working Conditions of Employees Posted to Estonia Act to an employee who has been posted to Estonia for a posting of up to 12 months. If the posting lasts for more than 12 months, the employer is required to guarantee the employee all working conditions in force in Estonia (except for the rights and obligations related to concluding and terminating the employment contract, including the restriction on competition that is valid following the termination of employment and occupational pension schemes). If the employer has replaced the posted worker with another posted worker performing the same duty in the same place, the duration of the postings of the employees is added up (e.g. if the first posted worker installed pipes on the site and left after eight months, and another posted worker took their place installing pipes on the same site, it is sensible to add up the durations of the two postings of the posted workers in Estonia. If the other employee works for more than four months, they are considered a long-term posted worker after the completion of four months and the other employee becomes subject to all Estonian employment law from the fifth month of their employment).

A 12-month period can be extended to 18 months. To obtain an extension, a reasoned notice must be submitted to the Labour Inspectorate in a form that can be reproduced in writing. The notice must be reasoned, i.e. it must be stated why the posted worker needs to remain in Estonia for more than 12 months. The request for an extension must be sent to the Labour Inspectorate’s e-mail address posting@ti.ee

If the posting lasts for more than 18 months, all working conditions in force in Estonia must be applied to the employee (except for the rights and obligations related to concluding and terminating the employment contract, including the restriction on competition that is valid following the termination of employment and occupational pension schemes). If the long-term posted worker is a temporary agency worker, the user undertaking must inform the employer which working conditions shall apply to the employee after 12 or 18 months have passed.

It is important to note that the duration of the posting of employees posted to Estonia is not limited in any way. The posted worker may also remain in the country of destination as a posted worker for a longer period of time; however, in that case, all  working conditions in force in Estonia must be applied to the employee. For example, if a posted worker must be guaranteed the duration of his or her annual leave from the beginning of his or her posting in accordance with Estonian law (section 5 subsection 1 point 4 of the Working Conditions of Employees Posted to Estonia Act), Estonian employment law will apply to him or her after 12 or 18 months.

In the case of posted workers who are staying in Estonia at the time of the entry into force (30 July 2020) of the new wording of the Working Conditions of Employees Posted to Estonia Act, this period will begin to be calculated from the day following the entry into force of the Working Conditions of Employees Posted to Estonia Act.

Working conditions valid in Estonia

Employment relationships

 

 

Working environment

 

Further information on the working conditions applicable to employees can be found in the Employment Contracts Act, the Occupational Health and Safety Actexplanations of the Ministry of Social Affairs to the Employment Contracts Act (PDF), and the Working Life Portal.

 

Collective agreements of general application

Collective agreement on health care workers

 

The collective agreement on health care workers (PDF) concluded in the field of healthcare has been concluded between the Estonian Hospitals Association, the Union of Estonian Medical Emergency, the Estonian Society of Family Practitioners, the Estonian Medical Association, and the Union of Estonian Healthcare Professionals, covering a total of 25,000 employees pursuant to the Estonian Collective Agreements Register. The collective agreement in question extends to all institutions and enterprises that provide health care services on the basis of an activity licence issued by the Health Board and whose activities are financed under a health care financing agreement concluded with the health insurance fund or from the state budget, and to employees working in the above institutions and enterprises.

The general agreement on the carriage of passengers

 

The general agreement on the carriage of passengers regulates the employment, professional, and social relations of persons engaged in the carriage of passengers by bus who are members of the Union of Estonian Automobile Enterprises and members of the Estonian Transport and Road Workers’ Trade Union. The terms and conditions of working and rest time and of remuneration provided for in the general agreement on the carriage of passengers extends to and is compulsory for all employers and employees engaged in the carriage of passengers by bus and coach for the purposes of the Public Transport Act, regardless of the type of contract concluded with them.

 

The general employment agreement on domestic road haulage

 

The general employment agreement on domestic road haulage regulates the employment, professional, and social relations of persons engaged in domestic road haulage who are members of the Union of Estonian Automobile Enterprises and members of the Estonian Transport and Road Workers’ Trade Union. The terms and conditions of working and rest time and of remuneration provided for in the general employment agreement on domestic road haulage extends to and is compulsory for those who are engaged in domestic freight transport and those temporary agency employers and the employees (including self-employed persons) whose contract actually corresponds to the characteristics of an employment contract and whose principal function under the contract is the carriage of goods. The conditions above also apply and are mandatory for skilled workers and self-employed persons involved in the repair of rolling stock who are employed or leased by freight transport employers, with whom the contract for the repair of rolling stock actually corresponds to the characteristics of an employment contract. The terms and conditions for remuneration set forth in a general employment agreement do not apply to employers and employees engaged in the domestic haulage of round timber and the hiring of labour for that purpose.

Minimum monthly salary agreement

The agreement on the minimum monthly salary, which is approved by the Government of the Republic, applies across the sector. In 2020, the minimum salary is €3.48 per hour (gross) and the minimum monthly salary for a full-time employee is €584 (gross). A minimum salary for basic school and upper secondary school teachers has also been adopted, which is €1,315 (gross) per month.

 

Terms and conditions for temporary agency work

Pursuant to section 111 subsection 21 of the Equal Treatment Act, employees who perform duties by way of temporary agency work shall have equally favourable conditions of working and rest time and remuneration as well as access to the user undertaking’s catering, transportation, and childcare services.

Notification obligation

An employer has various notification obligations in regard to temporary agency workers:

  1. The employer must inform the employee of the data specified in section 5 subsection 1 of the Employment Contracts Act, including duties and remuneration, while also reaching an agreement in writing with the employee regarding working conditions in special cases specified in section 6 of the Employment Contracts Act. Temporary agency work is considered one such special case. Therefore, the employee must be informed that the work is being performed as temporary agency work.
  2. Pursuant to section 6 subsection 5 of the Employment Contracts Act, the employer shall notify the employee that the duties are performed by way of temporary agency work in the user undertaking. If there is no written agreement, it is presumed that an agreement has not been entered into (section 6 subsection 9 of the Employment Contracts Act).
  3. Pursuant to section 28 subsection 2 point 91 of the Employment Contracts Act, the employer is obligated to notify an employee who is performing duties by way of temporary agency work of vacant positions in the user undertaking corresponding to their knowledge and skills with regard to which an employment contract can be entered into for an unspecified term. If the user undertaking has notified the temporary employee of its vacancies, the employer is under no obligation to notify. For example, a temporary agency worker has entered into a fixed-term employment relationship with a user undertaking to work as a website administrator, and at the same time the user undertaking creates a website administrator job in its company, for which an open-ended employment contract is concluded. In the future, the employer is required to notify the temporary agency worker about this position. However, if the user undertaking has already informed the temporary agency worker in advance regarding this vacancy, the employer is not subject to a separate notification obligation.
  4. Pursuant to section 20 subsection 1 point 1 of the Employees’ Trustee Act, the employer shall inform the company’s trustee of temporary agency workers if the changes and planned decisions significantly affect the structure of the employer and the staff. For example, the employer must provide information on how many temporary agency workers are working in the user undertaking and which positions they are occupying.

 

Entry into employment contracts for a specified term

Entry into employment contracts for a specified term is regulated in section 9 of the Employment Contracts Act. An employer and an employee may enter into an employment contract for a specified term if it is justified by good reasons arising from the temporary fixed-term characteristics of the work, especially a temporary increase in work volume or performance of seasonal work. In the case of temporary agency work, an employment contract for a specified term may be entered into if it is associated with the temporary characteristics of the work in a user undertaking.

Therefore, a temporary agency worker can enter into a contract for a specified term with the employer in two instances:

  1. entry into a contract for a specified term is justified by good reasons arising from the temporary fixed-term characteristics of the employer’s work (for example, the employer requires a replacement or the volume or work has temporarily increased).
  2. entry into a contract of employment for a specified term is justified by reasons arising from the temporary nature of the user undertaking’s work (for example, the user undertaking needs an employee who performs duties as a temporary agency worker in place of another employee or needs additional labour in due to the user undertaking’s seasonal work).

 

Restriction on consecutive entry into and extension of employment contract for specified term

For the protection of employees, section 10 of the Employment Contracts Act places restrictions on the conditions under which an employer may consecutively enter into or extend an employment contract for a specified term with an employee. In the case of temporary agency work, the restriction on consecutive entry into or extension of an employment contract for a specified term is applied to every user undertaking separately. For example, if an employer enters into a fixed-term employment contract with a temporary agency worker to work for the same user undertaking more than twice, the employment contract is deemed to be an employment contract entered into for an unspecified term from the start. If the temporary agency worker performs work under employment contracts with a specified term at different user undertakings, then the restriction on consecutive entry into or extension of an employment contract for a specified term is applied to each user undertaking separately.

Submission of a notice on economic activities and the prohibition on charging a fee for intermediating a temporary agency worker

Two important basic principles are prescribed in the Labour Market Services and Benefits Act:

  1. Pursuant to section 38 of the Labour Market Services and Benefits Act, an undertaking shall submit a notice of economic activities if the undertaking is engaged in job mediation and/or operates as an intermediator of temporary agency work. Thus, there must be an entry for an undertaking providing job mediation services or temporary agency work in the register of economic activities. If there is no entry, the undertaking is operating illegally.
  2. Pursuant to section 391 of the Labour Market Services and Benefits Act, an undertaking engaged in job mediation shall not charge a fee for job mediation to a user undertaking from an employee for the performance of work tasks or for concluding an employment contract with a user undertaking.

The Labour Inspectorate exercises supervision over compliance with the requirements set forth in section 424 of the Labour Market Services and Benefits Act. If the employer has failed to fulfil the registration obligation or the employer has demanded a fee from the temporary agency worker for their mediation, the Labour Inspectorate will initiate supervision proceedings against the employer.

 

The employer must ensure that the following working conditions are applied to the employee:

 

 

 

 

 

Rules for the application of the social security system for people working in the European Union, the European Economic Area, and Switzerland

In order for a person to be able to freely choose their country of residence and employment in the European Union (EU), they must also be guaranteed the right to free medical care, sickness benefits, pensions, benefits for accidents at work and occupational diseases, unemployment benefits, and family benefits for their children.

It is not always possible to guarantee social protection to a migrant worker by applying the law of one country alone. Therefore, regulations have been adopted in the EU for the coordination of social security systems. These are found in Regulation (EC) No. 883/2004 of the European Parliament and of the Council and in implementing regulation (EC) No. 987/2009. The rules on how social security institutions determine which country’s social security applies to a person are set out in section II of the specified regulations.

The general rule is that employees moving within the European Economic Area (all EU Member States, Norway, Liechtenstein, Iceland, and Switzerland) as well as self-employed persons are subject to the social security scheme of only one Member State at a time. As a rule, this is the social security system of the country where the employee is working or is self-employed, regardless of the country in which the employee or self-employed person resides or in which country the employer is located.

However, in a situation in which a person is linked to more than one EU Member State due to employment or self-employment, it is necessary to determine which country’s social security applies to that person. Examples of these types of situations are the temporary posting of employees and simultaneous employment/operation in several countries. The decision as to which country’s social security and applicable laws apply to a person in such a situation is made by the social security authorities on the basis of the legislation in force and the person’s actual situation. When the decision is made on which country’s social security legislation applies, that country will issue the person an A1 certificate.

An A1 certificate (‘Certificate concerning the social security legislation which applies to the holder’) is a certificate issued by the European Commission, which allows a person who has been posted or who is working in more than one country to prove to the host country’s authorities that they are already covered by another country’s social security legislation. In other words, the holder of the certificate is not obliged to pay social security contributions in other countries; instead, all of their employers pay social security contributions in the country from which they were issued the A1 certificate, thus guaranteeing all social rights and benefits under the law of that country.

In case the employee is working in multiple countries, the A1 certificate must always be applied for from the country in which the employee resides and, in the case of posting, from the country from which the worker is to be posted.

Read more on the website of the Social Insurance Board.