It will be possible for aliens to also work as temporary agency workers in Estonia beginning from 2016

Triniti

In the general process of liberalizing the regulations concerning Estonian labour market and the employment of employees (aliens) coming from the third countries (i.e. outside the European Union) in Estonia, a possibility will be added by the amendments to the Aliens Act (AA) since the beginning of 2016 that aliens can also work in Estonia as temporary agency staff. In a sense, this is interesting and good news but on the other hand this may cause several questions and may not be implemented correctly in the reality, i.e. as desired.

Current possibilities to work as a temporary agency worker

In brief, pursuant to § 6 (5) of applicable Employment Contracts Act (ECA), we are dealing with temporary agency work if an employer and an employee agree that the employee will perform his/her duties in the form of temporary agency work by temporarily subjecting to the third person’s (user undertaking) instructions and supervision. Pursuant to the specific nature of the AA regulations applicable to aliens which are related to the residence permit for employment, the use of aliens as temporary agency employees has been precluded until now (and is also precluded currently) in a legally sound manner. This means that only citizens of Estonia or some other member state of the European Union as well aliens who are not limited by restrictions arising from the type of the residence permit issued to them (e.g. aliens having a residence permit to settle with the spouse) can work as temporary agency employees in Estonia.

Amendments since the beginning of 2016

However, this situation should change beginning from 1 January 2016 when the amendments to AA enter into force by which a possibility is created also for aliens to work as temporary agency employees in Estonia so that an alien will be able to apply for a residence permit issued for employment as a temporary agency employee.

According to the adopted amendment which will presumably enter into force from 1 January 2016, an alien may work as a temporary agency employee both on a short-term basis (based on a short-term employment registration) and on a long-term basis (based on a residence permit issued for employment). It is true that the law establishes different criteria which have to be complied with so that a residence permit on such basis would be issued but it is important to know that this possibility has been created.

Whereas, it is important to keep in mind that while upon issuing the so-called ordinary residence permit for employment the employer’s area of activity or average (depending on the situation) Estonian monthly salary are relevant in e.g. determining the salary criteria, the amount of average monthly salary paid in the user undertaking’s principal activity has to be taken as a basis in case of a temporary agency employee. It is also important to keep in mind that in addition to the so-called routine background check of an employee, the Police and Border Guard Board (PBGB) also performs the background check of a user undertaking. It is also important that neither of them have e.g. any tax arrears.

It is equally important that in case of the residence permit issued for employment as a temporary agency employee the employer’s area of activity has to be temporary employment agency activities and the employer has to be solvent; for that purpose the law prescribes, inter alia, the requirement to deposit money in a certain amount in a credit institution registered in Estonia.

In conclusion

The above-described amendment is one of several fundamental amendments to AA which will enter into force from 1 January 2016. Taking into consideration the limited nature of labour market and relatively low unemployment rate, this amendment seems to be reasonable and necessary in every way in the signatory’s opinion. All that remains is to hope that this plan will be implemented properly and as planned.

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