The agreement may contain provisions limiting the host offering employment to the posted worker during or for a certain period after the posting. 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 host usually pays a posting fee to the person posted at regular intervals during the period. This fee can only be an amount that covers the cost of the display or, more likely, include a winning element. In any case, the posting costs will be subject to VAT if the postman 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 the seconded person. 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. Home > South Africa > Ten essential conditions of posting agreements The Host Party must ensure that the seconded person can be compelled to perform any work he or she may perform during the posting and must therefore try to identify any changes to the work required during the period.
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 will want to stress the need for confidentiality during secondment and possibly introduce new restrictive provisions to prevent the seconded person from competing with the seconded person or poaching staff on his or her behalf. When you agree to participate in a secondment, the terms of the posted person`s employment contract are inevitably changed. The posting agreement must therefore provide that the seconded person accepts the modification of the conditions of employment. The employer must therefore ensure that the posted person accepts the agreement before concluding the posting agreement. The seconded person must be a party to the agreement or otherwise accept the terms and conditions that affect the seconded. Secondments may take place within an employer or a group of employers. In these cases, the agreement can be relatively informal. The posting agreement should also specify what happens if the posted person terminates his or her employment relationship during the posting.
The most likely option is for the posting to end at the end of the posting notice period, but the seconded person will want the posting to end briefly if the seconded person leaves without notice. There are certain key terms that an employer and a host must take into account when concluding a posting agreement: if the disclosure includes information outside the European Economic Area, the posting entity must ensure that adequate protection exists and may need to include specific provisions in the posting agreement. Regardless of the legal situation, the secondment and the host may contractually agree on who bears the costs of responsibilities to the seconded person (e.g. B for its health and safety) and for the actions of the posting during the posting, and include appropriate compensation in the agreement. 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. 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. There will be certain circumstances in which the secondment must end with immediate effect. The agreement may specify certain events that lead to termination, e.B. the misconduct of the detached person or a long-term illness. 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. A posting occurs when an employee (or group of workers) is temporarily assigned to another organization or part of their employer. 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. In the absence of an agreement to the contrary, ownership of the intellectual property created by an employee in the context and extent of his employment is transferred to the employer. Therefore, in cases where the posting involves the creation of new intellectual property, the host and the employer must indicate in the agreement who will be the owner of the intellectual property created by the delegate in order to avoid disputes at a later date. In order to avoid service-related problems, it is advisable to determine the hours of work, the type of work and the person or team to whom the seconded will reimburse for the duration of the secondment.
The seconded person must disclose the personal data of the publication to the host as part of the secondment and it is unlikely that this disclosure will require the explicit consent of the seconded 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 will need the express consent of the seconded person. The Host Party will ensure confidentiality, in particular as regards the information that the seconded party may receive during the secondment, the request of its staff and the risk that the seconded person or seconded person may be placed in the competition. 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 seconded person, the employer and the host must negotiate the terms and manner in which the host pays for the services of the seconded. The parties must also determine who, if any, is responsible for the payment of the costs incurred by the seconded party during the provision of the services. 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 compensation and benefits agreements as accurately as possible to avoid disputes. 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. Net Lawman offers two models of secondment contracts for commercial and non-commercial organizations. Before concluding a posting agreement, it is necessary to review the existing conditions of the posting person`s employment contract, in particular to establish that a posting agreement must indicate that the seconded person complies with the guidelines and procedures of the host manager.
Discipline remains the responsibility of the employer. However, a violation of host policies requires the host`s cooperation for the purposes of a disciplinary hearing. If the seconded person is a citizen or resident of the Republic of South Africa and is seconded to work in South Africa, there are no restrictions on the duration of a posting contract. .