Tax Alert

Law on requirements for temporary assigning employees to a foreign country and their protection was published on 5^th of November 2015 and came into force on 13^th of November 2015. The application of this Law will commence after two months of entering into force. On the day this Law becomes applicable, former Law on protection of FRY citizens working abroad ('Official Gazette FRY'', no. 24/98, 101/2005 and 36/2009) will cease to exist. 

Scope of the Law

The Law regulates the rights of the employees which are temporary assigned to a foreign country, conditions, procedure and the responsibilities of the employer regarding the assignment of the employees abroad, cooperation between the competent authorities and organizations which perform public service in connection with the protection of the rights of the employees temporarily assigned abroad and supervision of the application of the Law.   

New Law defines the terms such as an assignee, business cooperation contract and intercompany movement.   

Legal basis for assignment

The Law also stipulates three bases when an employer may temporary assign an employee to a foreign country, as follows:

1. When an employer has a contract for executing investment and other project, and a service contract with a foreign employer and on that basis it assigns its employees (i.e. Business Cooperation Agreement);
2. When an employer has a business unit abroad where it assigns employees;
3. When an intercompany movement occurs.

Conditions for an assignment

When assigning an employee to a foreign country each employer should fulfill following basic conditions for an assignment:

• Assignment cannot be longer than 12 months (with the possibility of the extension), unless otherwise prescribed by law or an international contract;  
• Only employees employed for an indefinite period can be assigned. Exceptionally, employees employed on a definite period may be assigned under certain conditions;
• Written consent of the employee is necessary for an assignment, unless the assignment has already been stipulated in the employment contract;  
• Justified reasons for a refusal of the assignment are prescribed as well (pregnancy, special childcare, previous assignment, etc.).

Cases when the Law does not apply

One of the novelties in the new Law is strictly prescribed cases when the provisions of the Law do not apply:

1. When an employer assigns the employee to a foreign country in accordance with another law;
2. When an employer assigns the employee to an EU or EEA member state from the moment when Serbia becomes a full EU member state (the law of the state where the employee is assigned to will be applicable, in accordance with the 96/71/EZ Directive on the posting of workers;
3. When an employee is sent on a business trip abroad in accordance with the law, if the period of a business trip does not exceed 30 days consecutively, or any 90 days in a calendar year.

In addition, provisions of this Law will not be applicable if an international agreement, ratified by the Republic of Serbia, foresees that.

Employer’s obligations towards the employee

Employers’ obligations towards the employee deriving from this Law are, as follows:

1. Concluding an annex to the employment contract which includes all mandatory elements in relation with the assignment and work conditions abroad;
2. Providing social security to the assignee by the employer;
3. Ensuring safety and health in a work place in accordance with the Serbian legislation or the legislation of the state where the employee is assigned to if it is more suitable for the employee;
4. Providing accommodation, nourishment and transportation;
5. Ensuring employment income in accordance with the Serbian legislation, which cannot be lower than the minimum wage prescribed in the Host country;
6. Preparation for the assignment (providing information about the state and the place where the employee is being assigned to, providing transport, necessary work and residence permits and appointing a contact person in the place of work, etc.).

Employer’s obligations towards the competent authorities

In relation to the competent authority, the obligations arising for the employer are:

1.    Providing the Notice about the temporary assignment of the employees to a foreign country at least one day prior to the start of the assignment; 

2.    Providing the Certificate from the Central register database that comprises of a list of all employees temporary assigned to a foreign country to the competent Ministry, seven days upon the start of the assignment at the latest;

3.    Providing information and proof on fulfillment of conditions required for an assignment of the employees to a foreign country and their protection on the basis of labor and residence on the request of the competent Ministry.

This Law simplifies the procedure of providing the Notice to the competent authority in terms of simplifying the required documentation.

Fines in case of violations of the provisions of the Law

The Law prescribes significant pecuniary fines for the violation of the provisions. With regard to the previous Law, pecuniary fines have been significantly increased. Depending on the misdemeanor, the Law stipulates fines in the range from RSD 600,000 to RSD 1,500,000 for the legal entity.

Fines prescribed for an entrepreneur range from RSD 200,000 TO RSD 400,000, and for the responsible person in a legal entity, or the representative of the legal entity, fines in the range of RSD 30,000 to RSD 150,000.

In addition, a fixed pecuniary fine is prescribed for certain misdemeanors for which Labor inspection can issue a misdemeanor warrant. Those are the misdemeanors fined with RSD 100,000 for a legal entity, RSD 50,000 for an entrepreneur, and RSD 10,000 for the responsible person in a legal entity, or the representative of the legal entity.