A secondment is the temporary assignment of an employee either internally within an organization or externally to a separate company. Three (3) parties are involved in the posting: the seconded person may benefit from sufficient protection on the basis of the existing provisions of the posted person`s employment contract. However, it is likely that it wishes to insist on the need for confidentiality during the posting and that it wishes to introduce new restrictive provisions to prevent the detached entity from competing with the sending company or debauchery of employees. Make sure you know exactly how the publication will end. Make sure you have a job that you can return to once the posting is complete, and that it`s the same one you left. Given the complications and potential disputes that may arise, it is important that the terms between the three parties are recorded in writing as evidence of what has been agreed. Here are our tips to make the most of the opportunity you`ve been given and to make sure your posting experience is positive: It`s important to make sure your posting agreement states that your legal employment period will remain uninterrupted even if you work at another company. The idea behind a secondment is that the original employer or former „lends” the display to the host, but remains their employer. In this way, the employee`s continued performance is preserved, the original employer retains control of the employment relationship, and the posted person remains in compliance with the duties and obligations of the common law, such as .B the duty of loyalty, related to the original employer. In rare cases, however, the employment relationship is considered to be transferred to the host, perhaps because the original employer has relinquished control over the posted worker. To avoid ambiguity and disputes, employers should include in the posting agreement a clause stating that the posted person will remain in the employment of the original employer.
The practical arrangements should also take into account this existing regime. Less common is the display role in a separate company, via an external display. Even then, there is usually some kind of connection between the two companies, such as a business partnership. The liability and indemnification clauses of a secondment contract are central provisions, but often not enough thought is given to how they are structured and formulated. A common mistake is to include liability and indemnification provisions that are appropriate for a service contract, but are absolutely not suitable for a secondment contract. This may be the case if the author misunderstands the nature of a secondment and how it differs from a service contract in certain fundamental respects. In the case of a service contract, the recipient pays for the provision of a service. 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 accidents at work. In order to determine who assumes the responsibilities towards the posted worker, it is essential to determine his status, i.e. whether he is a worker, employee or independent contractor (less likely) of the posting company and/or a guest. This will affect the statutory rights of workers, how a payment is imposed, what health and safety obligations apply and the extent to which there is a duty of care towards the posted person. If you are the one who wants the display and your company does not know it, it is advisable to discuss it first with them before contacting the department or company to which you wish to be seconded. When one agrees to participate in a secondment, the terms of the employment contract of the seconded person are necessarily varied. The posting agreement must therefore provide that the seconded person accepts the modification of the terms and conditions of employment. The employer must therefore ensure that the posted person accepts the agreement before concluding the posting agreement. The posted person must be a party to the agreement or otherwise accept the terms affecting the posted person.
The employer and the host must determine who is responsible for the remuneration of the seconded person for the duration of the secondment. If the employer agrees to pay the posted worker, the employer and the host must negotiate the terms and manner in which the host pays for the posted worker`s services. The parties must also take into account who is responsible for paying the costs incurred by the seconded person in providing the services, if any. Unless otherwise agreed, the contractual agreements between the employer and the seconded person on old-age provision and medical assistance remain unchanged. It is important to enter all compensation and benefits agreements as accurately as possible to avoid disputes. Posting usually means separating someone from their usual organization in order to temporarily send them to another location. Posting agreements are used in many different situations. For example, companies may outsource employees to their customers or customers for a period of time (typically between three and twelve months) to work within the customer`s organization.
Expatriate assignments are also often set up as assignments, both for assignments within a group of companies and between unrelated companies. For some external missions, the original company pays the salary, but it is more common for the host company to take care of it. Ideally, the agreement determines the duration of the display. There are other circumstances in which the parties wish to provide for the termination of the agreement. For example, the parties must check whether they should terminate the contract in the event of a mandatory impossibility of performance or by termination due to a breach of contract or whether the delegate proves unfit for the work. The parties may also provide for cancellation with notice or agreement. The host will ensure confidentiality, in particular with regard to the information that the seconded person may receive during the posting, the request of its staff and the risk that the seconded person or the seconded person may compete. The host usually pays a display-to-view fee at regular intervals during the period. This fee can only be an amount that covers the expenses of the hearing person or, more likely, includes a winning element. In any case, the posting costs will increase VAT if the entry is registered for VAT. The posting agreement should provide for changes to the fee during the period of posting, in particular to take account of any increase in the salary of seconded persons. This article describes the employment relationship between the main employer and the posted employer, as well as other important employment issues.
If you are an employee considering applying for a position or an employer considering appointing someone to another organization, we hope this reading will be helpful. If the posted person is a citizen or resident of the Republic of South Africa and is seconded to work in South Africa, there will be no restriction on the duration of a posting agreement. There is a risk that, despite the provisions of the posting agreement, an excessively long posting will give rise to an expectation of employment for the client. It is therefore advisable to define the purpose and duration of the secondment. The agreement may contain provisions on the possible extension of the posting. Where disclosure is information that goes outside the European Economic Area, posting ensures the existence of adequate protection and may require the inclusion of specific provisions in the posting agreement. A secondment occurs when an employee (or group of employees) is temporarily assigned to another organization or part of their employer. Net Lawman offers two templates for displaying agreements for commercial and non-commercial organizations. The seconded party must disclose personal data about the publication to the host as part of the publication and it is unlikely that such disclosure will require the explicit consent of the posted person, as this is in the „legitimate interest” of the employer (paragraph 6, Annex 2, DPA). However, if the seconded person wishes to disclose sensitive personal data, he or she needs the express consent of the seconded person.
However, complications can arise, especially if the employee is seconded to a completely different employer. A secondment is equivalent to a tripartite agreement between the employee, his or her home employer and the host employer, so there may be problems in the management of the work, the protection of commercial interests and the decision of the employer who retains overall control over the employee. .