This article will be dealing with the conditions for capacity performance of the employment agency´s responsible representative. A responsible representative is a specific natural person who guarantees that a legal person (agency) meets the professional requirements to mediate employment. A qualified professional representative is one of the conditions to grant a permission being issued by the Secretary General of the Labour Office of the Czech Republic.
Who may be a responsible representative?
The conditions for responsible representative capacity performance are regulated by Section 60 of the Act No. 435/2004 Coll., on Employment, as amended (hereinafter referred to as the “Employment Act”). The agency´s responsible representative may be only a natural person whereas the law admits this function to be performed also by a foreign natural person after meeting special conditions [1].
A natural person may be assigned to a responsible representative function only at one agency and he/she must not hold simultaneously a permission to mediate employment as a natural person. Due to this legal regulation the demand for responsible representatives exceeds significantly their supply in the current labour market.
Responsible representative capacity performance is subject to cumulative meeting of the following requirements:
- age of 18 and full legal capacity;
- impeccability;[2]
- residence in the Czech Republic;
- professional competence.
A requirement on professional competence of the employment agency´s responsible representative consists of two basic components – of the achieved level of education and exercise of professional practice. The minimum required level of achieved education is secondary education completed by a school-leaving exam. Achieved education is subsequently documented by a verified copy or transcript of a school-leaving certificate, eventually university diploma. If a responsible representative obtained his/her education abroad, it is necessary to document also a recognition (incorporation) of such foreign education, which is made by regional authorities.
As regards the condition concerning the performance of professional practice, the performance of such practice is demonstrated by officially verified copies or transcripts of documents provided that professional practice was performed in the Czech Republic or in countries outside the European Union, European Economic Area and Switzerland.
In other cases it is necessary to document the practice by the so-called decision on recognition of professional practice, which is an individual decision on professional competence, being rendered in a separate administrative procedure by the Ministry of Labour and Social Affairs. In such case a person who performed professional practice in the territory of another member country of EU/EEA or Swiss Confederation must ask the Ministry of Labour and Social Affairs as soon as possible for rendering a decision on recognition of professional qualification, pursuant to the Act No. 18/2004 Coll., on Recognition of Professional Qualification and Other Competences of Nationals of Member States of the European Union and Nationals of Other Countries and on the Amendment to Some Other Acts (Act on the Recognition of Professional Qualifications), as amended.
It depends always on an applicant to submit the documents proving personal and systematic performance of activities in relation to a sector for which the mediation of employment is to be allowed, eventually in relation to mediation of employment in general. The most frequent type of a document concerning performed professional practice is e.g. Employment Contract and another document documenting the practice duration (e.g. Agreement on Termination of Employment, employment records, eventually confirmation on employment duration). Performance of a specific trade by a natural person might be assessed as performance of professional practice as well.
Because no exhaustive list of specific documents necessary to document the performance of professional practice is stipulated anywhere, it is appropriate an applicant contacts some of the employees of the employment agencies department, in case of doubts, and asks for consultation concerning a specific matter, which prevents from any later need to complete an application based on a written call of the Labour Office, which extends uselessly the process of granting a permission.
When assessing the performance of professional practice it is important to meet also the condition of its minimum duration. In case of achieved secondary education completed by a school-leaving exam, professional practice of 5 years must be proved. In case of achieved university education, the required duration of professional practice is 2 years (regardless the study field).
An important aspect to assess professional practice is also the fact which field/fields, which the mediation of employment will be permitted for, are marked by an applicant in an application. If an applicant selected specific fields, he/she must prove professional practice in every individual field. In addition to that, he/she may ask for occupational scope “without limitation”. In this case he/she must document the practice as an employment agent in the Labour Office or in an employment agency. These cases require usually previous practice at the Labour Office or in the already existing agency, which is documented by an Employment Contract, eventually also by job description.
When selecting a suitable representative, the agency must make sure such a person has not performed the office of a responsible representative in the last three years at a legal person, statutory body or legal person´s body, which the permission to mediate employment was withdrawn by reasons specified in Section 63 (2) (a) to (f) of the Employment Act, or Section 63 (3) of the Employment Act, concerning the reasons of withdrawing a permission for mediation (Section 60 (2) of the Employment Act).
Any breach of the above-mentioned conditions may lead even to withdrawal of a permission for employment mediation by an agency, which would mean factual liquidation of such agency.
Relationship between employment agency and responsible representative
Based on an amendment to the Employment Act, increased requirements are imposed on responsible representative capacity performance, with effects since the end of July 2017, and closer interconnection of a responsible representative and agency is embedded as well, which shows itself mainly in the obligation to conclude an Employment Contract between a responsible representative and employment agency. Thus, a responsible representative must not be active based on an Agreement to Complete a Job or Agreement to Perform Work. Employment agencies whom the permission was granted before 29 July 2017 had to adjust their relationship with a responsible representative within three months after such amendment had come into effect. It was necessary to modify the employment relationship with a responsible representative from an agreement to an Employment Contract. This obligation still applies therefore it is definitely recommended to the agencies, which have not realized it yet, to remedy their omission immediately.
As regards the responsible representative´s working hours, they must be agreed with an employment agency at least within the scope of 20 hours weekly. However, exemptions will be applied from this obligation for those responsible representatives who perform, in addition to this function, also a function of statutory body or statutory body member in such employment agency. A responsible representative who is a statutory body by himself/herself does not have to conclude an Employment Contract for responsible representative capacity performance.
However, forced employment is not very practical with respect to the responsible representative´s activity. A responsible representative is like any other employee subordinated therefore it is difficult to imagine that he/she should give an agency any authoritative instructions falling within his/her expertise and be fully responsible for such instructions (see employee´s limited liability for damage caused by negligence).
If an employment agency breaches the legal regulations within the scope which assumes withdrawal of a permission for employment mediation, a responsible representative may not automatically perform his/her function for a period of next three years though he/she did everything that might be reasonably required from him/her to hinder from any breach of legal regulations. These aspects of a valid and effective legal regulation may be considered as unreasonably strict aspects and it would be appropriate, for sure, to enable in the future to the responsible representatives to prove they met their function properly and in accordance with legislation, though a permission for employment mediation was withdrawn from their agency, and to preserve an opportunity for them to continue being active in the field of employment mediation.
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[1] In accordance with Section 60 (6) of the Employment Act: “A foreign natural person documents his/her impeccability also by corresponding documents issued by a state where he/she is a citizen, as well as by states where he/she has constantly stayed for more than 6 months in the last 3 years, or in case a state does not issue such a document, by a sworn statement made at a relevant administrative or judicial authority of such state. Documents must not be older than 3 months.”
[2] The meaning of impeccability, pursuant to the Employment Act, conforms to the fact a person must not be lawfully convicted of an intentional criminal offence or criminal offence against property. A document to prove such fact is an Extract from the Penal Register not older than 3 months.