The ABCs of work for employer
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THE ABCs OF WORK FOR EMPLOYER | 1
Author: Anni Koha and Piret Kaljula Editor: Agentuur La Ecwador OÜ Design: Agentuur La Ecwador OÜ Photos: stock.adobe.com © Labour Inspectorate, 2018 ISBN 978-9949-646-11-1 (pdf)
Contents EMPLOYERâ€™S LABOUR LAW
Recruitment of an employee Which contract to enter into with the employee? (incl. voluntary work, day of trial, practice) Entering into the employment contract Important agreements in the employment contract to pay attention to Other data in the employment contract / additional agreements Working and rest time
4 5 6 8 10 13
Holidays Annual holiday and holiday schedule
Other holidays Study leave Family holidays Time of paying the holiday pay Calculation of the holiday pay
18 18 20 21 21
Expiry and cancellation of employment contract Expiry of employment contract Cancellation of employment contract If a labour dispute arises? What does the Labour Inspectorate do? State supervision Resolution of a labour dispute Counselling and notification
22 22 22 24 25 25 25 26
WORKING ENVIRONMENT OF THE EMPLOYER Organisation of occupational health and safety Risk analysis Medical examination by an occupational health doctor Personal protective equipment Instruction and training Accident at work Occupational diseases Design and inspection of a place of work
28 28 33 36 36 38 39 40 41
EMPLOYER’S LABOUR LAW Recruitment of an employee A recruitment process could be performed before hiring an employee that, inter alia, will include a job interview, pre-contractual negotiations, etc. A job interview is the best opportunity to find out the personality and character, values and attitudes, abilities, needs and skills of the employee. When having a job interview with an employee, it is important to keep in mind that the job interview is processing of personal data in its essence and only the data for which the employer has a legitimate interest can be asked from the candidate. Legitimate interest should be assessed based on a specific employment relationship and requirements of the position to be filled. In addition to the laws and the employment contract, the requirements for the position may also be based on the practices and behavioural standards valid in the profession or field of activity. The interest is not legitimate for the questions that disproportionally handle the private life of the candidate or that are not related to the assessment of suitability to the offered job. Generally, the employer has no right to ask information about the family planning, incl. intentions to have a baby, about religious beliefs or political opinions, sexual orientation, beliefs, health, and other. This is because, otherwise the employer could exclude a candidate who has children or who is planning to have children, or other, or the employer cannot discriminate the applicant based on fulfilling the family responsibilities when hiring them. Pre-contractual negotiations are also important besides the job interview. This is the time before entering into an employment contract when the employer and the applicant express their opinions and wishes in order to understand their expectations for each other and whether entering into an employment contract is possible. During the pre-contractual negotiations, the parties shall consider each other’s interests and rights and provide only correct information. If the employer wishes to perform the background check of the employee before entering into the employment contract, it must be taken into account that it is not possible to ask information about the employee from their former employers without the consent of the employee. If the employer plans to google the employee, the issues related to the protection of personal data should also be considered. Although no law prohibits the employer from investigating data on the candidate from public sources, the candidate could request the employer to stop such activities. The candidate should be informed about data collection. The candidate should be informed about the nature and source of collected data and who is processing these, and the candidate has the right to demand rectification of data. Hence, when you google and find public information about the candidate that may influence hiring, it is reasonable to give the candidate an opportunity to give explanations.
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Which contract to enter into with the employee? (incl. voluntary work, day of trial, practice) The Law of Obligations Act regulates all contractual relationships as a framework law in Estonia. Employment contract relationships are governed by the Employment Contracts Act as a specific law, but in addition, the provisions of the general part of the Law of Obligations Act and the provisions about Authorisation Agreement are applied. An employment contract is a contract under the law of obligations but all contracts under the law of obligations are not employment contracts. The will of the parties and the nature of the contractual relationship specify whether it is an employment contract or another contract (e.g. contract for services, authorization agreement, agency contract or other). The contract entered into between the parties should indicate the actual will of the parties – matters on which the parties agreed during the negotiations. Only the heading of the written contract and sometimes even the content do not determine the actual legal consequence of the agreement. If there is no written contract, the contractual relationship still exists. The Employment Contracts Act presumes that if work is performed for remuneration, it is an employment contract. At the same time, there is a principle that where the person obligated to perform the work is to a significant extent independent in choosing the manner, time and place of performance of the work, it is not considered as an employment contract. The above-indicated means that if according to the working conditions actually agreed on between the Parties, the employee is in subordination to the management and control of the employer, it is an employment contract. However, with the contract for services, one person (contractor) shall be obliged to produce or change a thing or achieve another agreed outcome (work) with providing the service, and the other person (contracting entity) shall be obliged to pay remuneration for it. Which contract shall be entered into will depend on the following: • An authorization agreement is entered into if the aim is to regulate the performance of a specific assignment (e.g. performing a show or a concert, writing an article or other independent activity); • A contract for services is appropriate if it is necessary to regulate the achievement of a specific outcome for a specific date without interference by the customer (e.g. installation of a door, laying parquet, sewing a dress); • The employment contract shall be entered into when the aim is to regulate the process of achieving an outcome and control the activity. An employment contract gives the employee more extensive rights and better protection than the other contracts. Hence, the employment contract should be preferred. In case of the employment contract, the employee is subordinated to the management and control of the employer. THE ABCs OF WORK FOR EMPLOYER | 5
The employment contract, inter alia, provides the employee with the following: • work for a longer period; • payment of remuneration at least once a month; • tools and work-related training at the expense of the employer; • breaks during working hours, daily and weekly rest time; • additional remuneration for working on a public holiday, for overtime and night work; • safe working environment and regular medical examinations; • a right of the annual holiday. Unpaid days of trial, practices and “voluntary work” are not allowed by law in a profit-making enterprise. According to the valid law, the test assignment can be done within the framework of employment service only by an unemployed person registered in the Estonian Unemployment Insurance Fund. Also, in that case, the test assignment can be performed only for one day. The law (incl. the Employment Contracts Act or the Law of Obligations Act) does not stipulate other opportunities for trial work. The Employment Contracts Act stipulates the probationary period for trial work. There are only two cases for performing the traineeship in an enterprise: 1) the school sends the student to the professional traineeship; 2) a person is unemployed and the Unemployment Insurance Fund offers the professional traineeship opportunity as the employment service. Voluntary work can be presumed only in two cases: 1) in case of a company providing the employment service and a registered unemployed person who performs voluntary work; 2) in case of a company whose activities presume involvement of volunteers. The direct purpose of the voluntary work cannot be business activity, gaining profit or saving of labour costs. Also, it is not possible to perform voluntary work for which usually mainly the paid labour force is used.
Entering into the employment contract A form of the employment contract An employment contract shall be entered into in writing. An employment contract shall also be deemed entered into if an employee commences work which, under the circumstances, can be expected to be done only for remuneration. The employment contract is entered into in two copies of which one remains with the employer and one with the employee. The employer undertakes to retain it during the whole employment relationship and ten years after the termination of the employment relationship.
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What should the employment contract contain? All important conditions shall be agreed in the employment contract, which are generally the following: • description of duties; • remuneration payable for the work; • working time; • the place of performance of work. The employer shall notify the employee in writing also about other data provided in the Employment Contracts Act on which the parties have not agreed in the employment contract, e.g. duration of the holidays, established work organisation rules and terms for notifying about cancellation of the employment contract. The employer shall communicate the data of an employment contract to the employee in good faith, clearly and understandably. Besides the data about which the employer has to notify the employee in any case, there are terms of which the employer notifies the employee in case of agreement by both parties. If the agreement is written in the employment contract, additional notification is not necessary. Terms to be established in an agreement: • a probationary period shorter than four months or working without a probationary period; • the reason for and duration of entering into a fixed-term employment contract if the work is of temporary nature or entered into for a specified term; • application of the restriction of competition; • working outside the ordinary location or place of business of the employer (teleworking); • an employee works for a third party (temporary agency work); • working on the basis of calculation of the total working time. Unilaterally, the employer can assign the employee an obligation to maintain confidentiality of secrets by determining the content of the production or business secret in writing but only when the employee starts to perform the duties where the employer has a legitimate interest in keeping the production or business secret. The parties may agree on a contractual penalty for breach of the obligation of preservation of business secrets. The obligation to maintain the confidentiality of secrets may be valid during the employment relationship as well as after it. The employer and the employee can also agree on other terms in the employment contract that will not contradict the law or are not prohibited. At the same time, it is important to know that an agreement which is worse for the employee than the one prescribed by law is not valid. The employment relationship is based on the principle of applying the more favourable provision for the employee. NB! Even if the employee agrees to a more harmful agreement when entering into the employment contract, it will not deprive the employee of the right to address the labour dispute committee or court for protecting their rights. THE ABCs OF WORK FOR EMPLOYER | 7
Important agreements in the employment contract to pay attention to Probationary period The Employment Contracts Act provides that the probationary period of an employee is automatically 4 (four) months. This means that the duration of the probationary period shall not be separately agreed but it would be reasonable to indicate it in the employment contract to avoid misunderstandings. But if the probationary period is shortened or not applied, it should be indicated in writing. The probationary period is intended for the employer to assess whether the employee’s health, knowledge, skills, abilities and personal characteristics are of the required level for performing the agreed work. The employer is obliged to guide and train the employee during the probationary period. The employee, in turn, can assess whether this work suits them. It would be reasonable to give constant feedback during the probationary period – if the employee has some shortcomings, attention should be drawn to these. It is important to know that although extending the probationary period may seem grounded in certain cases (e.g. employee’s long-term incapacity for work during the probationary period), considering current judicial practice, it is not desirable to agree on extending the probationary period since it is considered a void agreement. If it is not possible to assess the employee during the probationary period and the employee cannot do their work properly after the probationary period, the employer will have an opportunity to cancel the employment relationship due to the employee’s inadequacy. It is also worth knowing that it is not allowed to establish a new probationary period in the employment relationship. If it becomes obvious during the work that it would be suitable to offer the employee some other work, establishing a new probationary period would not comply with the idea of the law. If the employer sees in the employee potential for performing other work, it shows the employer’s faith that the employee will cope with new work. NB! In the case of a fixed-term employment contract, the probationary period can be maximum half of the duration of the fixed-term employment contract, but not longer than four months. This means that in the case of the six-month contract, the probationary period can be maximum of three months. Employment relationship entered into for a specified term A fixed-term employment contract may be entered into for up to five years if the work is of temporary nature (except substituting another employee). Temporary nature of the work can be based on, for example, an increase in work volumes, seasonal character of work, or the need for substitution. Otherwise, a fixed-term employment contract can be entered into when the obligation to enter into is based on a specific law (for example the Basic Schools and Upper Secondary Schools Act). In the case of entering into a fixed-term employment contract,
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the reason for a specified term must be indicated in the employment contract. The term can be specified by date as well as the occurrence of an event. The fixed-term employment contract can be entered into in two consecutive occasions or extended once without the contract becoming a contract for an unspecified term. If the fixedterm employment contract has been entered into for more than two consecutive occasions or extended for more than once, the contract shall be deemed to have been entered into for an unspecified term from the start. Description of duties The duties shall be written in the employment contract, or, for example, in the job description. During the employment relationship, the employer shall have the right to demand from the employee just the work that is agreed in the description of duties and the employee will not be obliged to perform other works (unless the performance of the duty/order was based on urgent necessity, i.e. in case of possible damage or a threat of such damage to the employer’s property or other amenities). Additional duties that are not listed in the written document of the employment contract can be given to the employee only upon agreement by the parties and the employee has the right to refuse from performing the additional duties that do not follow the nature of work since the employee shall not perform the order that is not related to the employment contract. The description of duties shall be sufficiently clear and understandable to ensure that the employees know what is expected from them when they start working. Performance of other duties shall not automatically mean an increase in remuneration and hence when the parties agree that the employee performs other duties, an additional remuneration shall also be agreed if the employee presumes that. Remuneration payable for work The amount of remuneration is indicated in the employment contract in numbers and as a gross amount. The amount of remuneration, method of calculation (monthly wages, hourly rate, piecework pay, or other), procedure of payment (in cash/bank transfer) and the pay day should be understandable to the employee. The remuneration may consist of different components (hourly rate, percentage of the fee from turnover, piecework pay, etc.). The employment contract shall include all the fees that the employee receives for performing work. In the case of an agreement of payment of additional remuneration, the terms for payment of the additional remuneration shall be indicated. If the employee’s remuneration consists of several parts, it is important that they get the monthly remuneration in the amount of at least of the minimum wage. For example, if the employee receives the basic wage, performance pay and/or additional remuneration THE ABCs OF WORK FOR EMPLOYER | 9
and all the fees together are within the range of the established minimum remuneration, it is an appropriate agreement because the objective of the law has been complied with (an employee shall receive remuneration in the amount of minimum wages). NB! If additional remuneration/bonus is a fee for performing work, it is generally part of the remuneration. The employer cannot decrease or change remuneration unilaterally. The Supreme Court in its decision no. 3-2-1-118-10 has taken a view that the instruction for payment of the performance pay established by the employer (incl. unilaterally) is part of the employer’s valid salary administration, and it becomes a part of the employment contract. The amount of the remuneration (net salary) with deducted taxes shall be transferred to the bank account of the employee. The employer shall indicate in the employment contract which taxes shall be withheld from remuneration (income tax, contribution to mandatory funded pension and unemployment insurance premium) and which taxes the employer pays for the employee (social tax and the employer’s side unemployment insurance premium). Additionally, the employer is obliged to pay also: • remuneration for night work (22:00-06:00) (if not included in the wages) by 1.25 times or grant paid time off (§ 45 of the Employment Contracts Act (ECA)); • upon agreement, fee for overtime work by 1.5 times or grant paid time off in case of lack of agreement (§ 44 of ECA); • remuneration for working during the public holiday by two times or grant paid time off (§ 45 of the ECA); • remuneration for not granting work (an average wages) (§ 35 of the ECA); • an average wage when attending training, etc. The place of performance of work It is presumed that the place of performance of work is agreed with the precision of the local government (city, rural municipality). An agreement of a place of performance of work broader than the local government shall be grounded. Place of performance of work can be a certain address or several different countries. The place of performance of work indicated in the employment contract shall reflect the actual situation. In case of absence of agreement, the law shall apply, i.e. the place of performance of work is the employer’s place of business, which has the strongest connection with the employment relationship.
Other data in the employment contract / additional agreements Agreement on proprietary liability By an agreement on proprietary liability, an employee assumes, regardless of guilt, liability for the preservation of the property, given to them for the performance of duties. An agreement on proprietary liability is valid only if: • it has been made in writing; • it has been determined reasonably and recognisably for the employee in terms of space, time and objects;
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• the property entrusted to the employee can be accessed only by the employee or a definite circle of employees;
• the upper financial limit of liability has been agreed on; • the employer shall pay the employee a reasonable compensation, considering the upper limit of liability.
Agreement on restriction of competition The parties may agree on the restriction of competition. Under an agreement on restriction of competition an employee shall not work for the employer’s competitor or engage in the same economic or professional activity as the employer. The agreement shall be (otherwise it is void): • formulated in writing; • drawn up for protecting special economic interest; • determined reasonably and recognisably in terms of space, time and objects. An agreement that will be valid also after the employment relationship shall be (otherwise it is void): • formulated in writing; • determined reasonably and recognisably in terms of space, time and objects; • such that a monthly reasonable compensation is paid to the employee for it; • entered into for up to one year. The employer may cancel an agreement on restriction of competition at any time, notifying the employee thereof no less than 30 calendar days in advance. An employee may cancel the agreement on restriction of competition, notifying the employer thereof 15 calendar days in advance if keeping the agreement is no longer reasonable, or within 30 calendar days if the employee has cancelled the employment relationship due to the breach by the employer. Agreement on compensation for training expenses The employer and employee may agree that the employer shall incur additional expenses for training the employee in comparison with reasonable expenses for training the employee, and the employee shall work for the employer during an agreed period (binding period) for the purposes of compensating for these expenses. An agreement on compensation for training expenses is valid only if: • the agreement has been made in writing; • the agreement specifies the content and expenses of the training; • the binding period does not exceed three years; • the binding period is not unreasonably long considering the training expenses. If an employee cancels the employment contract before the expiry of the binding period, they shall compensate the expenses arisen from the agreement on compensation for THE ABCs OF WORK FOR EMPLOYER | 11
training expenses in proportion to the time remaining until the end of the binding period. Similarly, the employee shall compensate expenses if the employer is forced to cancel the employment relationship due to a fundamental breach of the employment contract by the employee. The employee will be exempt from reimbursement of expenses in case of extraordinary cancellation of the employment contract due to fundamental breach of the employment contract by the employer. An agreement on compensation for training expenses, made with a minor, or for compensation of expenses related to the fulfilment of the employer’s obligation of compulsory training provision pursuant to law, is void. Business trip If the employer sends an employee outside the place of performance of work, it will be a business trip. Employee’s permission is required in case of a business trip exceeding 30 calendar days. A pregnant woman and an employee raising a child under three years of age, or a disabled child and a minor and their representative shall give their consent in case of a business trip shorter than 30 calendar days. In the case of sending an employee on a business trip, the employer shall compensate reasonable expenses and in the case of an assignment abroad, pay the daily allowance. An assignment abroad means that the destination abroad is at least 50 km from the border of the settlement where the place of work is located. The minimum daily allowance for assignment abroad shall be 22.37 euros per day. Tax-exempt maximum rate is 50 euros per first 15 calendar days a month and 32 euros thereafter. The daily allowance rate, incl. the case when the daily allowance is paid at the minimum rate can be reduced up to 70% in the case free catering is ensured to the seconded employee during the stay at the destination. For instance: • 30% for one day, the daily allowance is decreased due to the dinner ensured by the receiver; • 70% for one day, the daily allowance is decreased due to the hotel with breakfast paid by the employer and the lunch and dinner ensured by the receiver; • 50% for one day, the daily allowance is decreased due to the hotel with breakfast paid by the employer and the lunch ensured by the receiver. The daily allowance shall be paid for the day of departure for an assignment abroad if the means of transport, travelling abroad departs no later than 21:00. The daily allowance shall be paid for the day of arrival from an assignment abroad if the means of transport arrives after 3:00. The Employment Contracts Act does not regulate the compensation for the time of going on a business trip. Since the time of going on a business trip is not considered a working time, payment of wages cannot be expected for this time.
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Working and rest time In the case of a full-time work, the working time is 40 hours a week, or 8 hours a day. The employer and employee may agree on part-time working time. The parties may agree on summarising the working time. This means that in some time unit or accounting period, the working hours can be divided differently (working based on the working time schedule). The period of summarising may generally be up to four months. The overtime and undertime shall be clarified at the end of the accounting period. The employer shall notify the employee about the accounting period in writing (summarised months), working time schedule period (i.e. whether the working time schedule is prepared for the accounting period or shorter period) and the time of a prior notice of the working time schedule to the employee. The employer shall inform the employee in writing about when and how the employee can examine the working time schedule. Overtime Overtime is working over the agreed working time. The parties shall agree on overtime each time. The employer may demand overtime work from an employee in exceptional cases if working overtime is necessary due to unforeseeable circumstances. For example, for prevention of damage or if an employee does not show up in a timely manner for the shift work and performance of work cannot be interrupted. In the case of a summarised working time, the overtime work is determined at the end of the accounting period. Overtime work shall be compensated by granting time off that shall be given to the employee as soon as possible after performing overtime work. The time off is given equally to the overtime from the working time of the employee and it shall be remunerated like an ordinary working time. The employee and the employer may agree that the overtime work is compensated in money with the 1.5 times the wages. The employer cannot demand overtime work from a pregnant woman or an employee who has the right to pregnancy and maternity leave. Also, a minor cannot perform overtime work. Daily rest period The employee must rest at least 11 consecutive hours within the 24-hour period of time. The length of the shift together with the overtime work shall not exceed 13 hours. Exceptions related to the daily rest period
• The restriction of daily rest period shall not be applied to health care professionals and welfare workers.
• Exceptions to the restriction on daily rest period may be made by a collective agreement THE ABCs OF WORK FOR EMPLOYER | 13
in the cases where the employee’s working and living place are far from each other or that require constant uninterrupted continuation of the service/production, also at production of gas, water and electrical energy, in the case of security and supervision employees, port and airport employees and employees related to carriage of passengers.
• If an employee works more than 13 hours over a period of 24 hours, additional rest time, immediately after the end of working, equal to the number of hours by which the 13 working hours were exceeded, shall be given to the employee. For example, when the length of the employee’s work shift was 16 hours, the subsequent rest time shall be at least 14 hours (11 hours of daily rest period + hours exceeding 13 hours, or 3 hours). Weekly rest period The employee must rest at least 48 consecutive hours over the period of seven days. In the case of a summarised working time, an employee must rest at least 36 consecutive hours within the period of seven days. Break during business hours The employer is obliged to give an employee a 30-minute break after working for at least 6 hours. The break during the business hours shall not be counted as working time. The break during the business hours shall be counted as working time if it is not possible to give a break due to the nature of work. In that case, the employee shall have an opportunity to rest and have lunch during the working time. Hence, when the nature of work allows the employees to use the so-called lunch break at their own discretion, it shall not be counted as working time. But if the employee has to have lunch without leaving the place of work (cannot go to the coffee shop or other places), the lunch break shall be counted as working time. Working time limit An employee may not work in a week an average of more than 48 hours with an accounting period of 4 months, or 12 months in the case of the health care professionals, welfare workers, agricultural workers and tourism workers by a collective agreement. An employee may not work for more than 52 hours during a 4-month accounting period upon performing additional overtime work. The parties shall agree on performing an additional overtime work, provided that an additional overtime work shall not harm the health of the employee. In order to determine the maximum time for performing work in a recording period (incl. overtime work), the calendar days of the accounting period must be divided by seven and multiplied by 48. Recording of working time upon refusal to work According to § 19, clause 1) of the Employment Contracts Act, the employee has the right to refuse to perform work if they are on a holiday, have a certificate for sick leave, or other.
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Based on this principle, the working time of an employee shall be decreased by the time of being away. If the working time schedule has been prepared by the time of refusing to work, the calendar-based standard for working time shall be decreased by the hours prescribed in the working time schedule. If the working time schedule has not been prepared by the time of refusing to work, the employer shall follow upon preparing the working time schedule, the calendar-based working time, or the calendar-based working time is decreased by the working days of absence. Shortening of a working day before public holidays The employer shall shorten the working day preceding the New Year’s Day, the anniversary of the Republic of Estonia, the Victory Day and the Christmas Eve by 3 hours. If the working time is not shortened, an agreement shall be achieved with the employee. There will be no agreement without consent of an employee. If the employee gives their consent to it, the three hours that are not shortened on a working day preceding the holiday shall be counted as overtime. For the employees who work with the summarised working time, the overtime will be determined by the end of the accounting period.
Holidays Annual holiday and holiday schedule Duration of an annual holiday An employee is entitled to have an annual holiday of at least 28 calendar days each calendar year. Duration of the holiday shall not depend on whether the employee works part or full-time. The law stipulates a 35-calendar day holiday for minors and employees with partial or no work ability, of which the Social Insurance Board compensates 7 calendar days for the employer. In the year of assessment of partial or lack of working capacity, the employee shall be entitled to a 35-calendar day holiday annual leave for the whole year. For example, when partial work ability is assessed in July for the employee, they have the right to get the annual holiday for this year to the extent of 35 calendar days. The duration of an annual holiday for educational staff is 42-56 calendar days, depending on the position. Additionally, the length of the holiday may be longer, depending on the applied collective agreement or an agreement between the parties. THE ABCs OF WORK FOR EMPLOYER | 15
Holiday schedule An employer can determine the time for using the holiday for the employee during the first quarter of the calendar year when they prepare the holiday schedule. Preparation of the schedule enables the employer to plan the work better, find out the need for substitution and avoid situations where all employees go on a holiday at the same time, for example, in summer. When preparing the holiday schedule, the employer shall not be obliged to satisfy the wishes of all employees and enable them a holiday at the time when an employee wishes to have it, but primarily considers the wishes of the beneficiaries prescribed by law and if it is then possible, with the wishes of the rest of the people but only in case it is in compliance with the interests of the company. It is important for the employer to consider the holiday wishes from the persons and in situations provided for in § 69 (7) of the ECA. The following persons have the right to demand an annual holiday at a suitable time: • a woman immediately before and after the pregnancy and maternity leave or immediately after a parental leave; • a man immediately after a parental leave or during the pregnancy and maternity leave of wife; • a parent raising a child of up to seven years of age; • a parent raising a child of seven to ten years of age – during the child’s school holidays; • a minor, subject to compulsory school attendance during the school holidays. The law presumes that the holiday schedule indicates the annual holiday, prescribed for the employee for the current year and the days of the annual holiday not used during previous years. At the same time, it is not forbidden to add the times for using other holidays that are planned at the beginning of the year to the holiday schedule. For example, the use of the study leave or the child care leave days can also be marked to the holiday schedule. If other holidays that are prescribed by law are marked to the holiday schedule, they shall be given according to the schedule. The approved schedule that is communicated to the employees can be changed only by agreement of the parties. When the employer plans the holiday schedule, it must be kept in mind that the employee has the right to use the holiday in its entirety. This means that the employer can select when the employee goes on a holiday, but dividing the holiday into parts presumes agreement between the parties. The law prescribes that when dividing the holiday into parts, at least one part of the holiday shall be 14 calendar days. The Labour Inspectorate is of the opinion that the requirement of 14 calendar days is fulfilled also when this 14-day period includes public holidays or the number of days of used annual holiday may be shorter than 14 days (public holidays are not counted in the annual holiday) but the actual work free time for the employee is at least 14 consecutive calendar days. Such a situation may occur, for example, during Christmas or New Year, when there may be a total of four public holidays during the holiday period. If the employer has not drawn up and communicated the holiday schedule by 31 March,
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every employee can take a holiday whenever they wish by giving a 14-day prior notice. For the employer, it may mean that all employees go on a holiday in July whereas the employer can do nothing in that situation since they themselves have not used the opportunity to organise the holidays. Before preparing the holiday schedule, an employee can go on a holiday during the first quarter only by agreement of the parties. The employee shall not have the right to demand a holiday with the term for advance notice of 14 calendar days. This is allowed only for the persons who have the right provided by law to demand a holiday at the suitable time for them. Holiday in the first calendar year In the calendar year of commencement of employment, an employee shall be entitled to get a holiday after working for 6 months. By agreement between the parties, it is possible to give the employee the holiday also earlier but then proportionally to the period one has worked. Otherwise, the employee uses a holiday more and so to speak owes to the employer. If a new employee commences work at the time when the holiday schedule has been drawn up and approved already, the holiday shall be given at their request. An employee can submit an application to the employer about using the annual holiday 6 months after commencement of work, with a 14-calendar day prior notice. Interruption of holiday and compensation in money § 70 (3) of the ECA forbids the replacement of the holiday of employee with money. Also, the holiday may be postponed only due to justified reasons arising from the person of the employee (e.g. sick leave certificate), or employer’s occupational necessity (whereas urgent necessity does not mean the need for substitution but presumes an emergency and unforeseeable situation). The unused part of the holiday is given to the employee immediately after the circumstances that hindered the use of the holiday have disappeared, or at some other time by agreement of the parties. Expiry of a holiday If an employee does not use all annual holiday days, these are transferred to the next calendar year and used with the next year’s holiday. In other words, the employee has the right to use the annual holiday of the current year from the calendar year for which the holiday is counted until the end of the next calendar year. Here it is important to highlight that if the holiday is interrupted based on the pressure of circumstances or postponed, the expiry of such kind of unused part of the holiday shall not be applied. Example: The employee was going to use their 7-day holiday part of 2016 in November 2017. Before going on a holiday, the employee fell ill. The employee notified the employer about being on sick leave, asked for interruption of the holiday and let the employer know that they wish to use the part of the holiday immediately after the expiry of the certificate for sick leave. The sick leave ended only in February 2018. The employer thought that since the holidays expire in two years, the holiday of 2016 has expired by 2018. Although, generally it is so, in a situation where the THE ABCs OF WORK FOR EMPLOYER | 17
holiday was interrupted due to the emergence of the employee or the employer, the emergency cannot cause harm for the employee since the holiday has not been interrupted on one’s own request or by agreement of the parties but due to unforeseeable circumstances. Hence, the employee was able to use the unused part of the holiday after the sick leave in February 2018.
Other holidays Study leave According to § 67 (1) of the ECA, an employee has the right for study leave under the conditions and procedure provided in the Adult Education Act (AEC). Adult Education Act provides that an employee has the right to receive up to 30 calendar days of study leave during a calendar year if it means attending formal education or in-service training performed by the holder of the in-service training institution. The emphasis is on the calendar year (01/0131/12), not the academic year. The general education schools, vocational educational institutions, institutions of applied higher education and universities enable adult formal education. After graduating formal education, the student gets a degree (e.g. vocational secondary education, applied higher education, master’s degree, etc.). The refresher training is a purposeful and organised educational activity outside the formal education, based on the curriculum (e.g. language courses, computer skills courses, etc.). Hence, the employee can take a study leave in the range of 30 calendar days but the employer is obliged to pay only for 20 calendar days and this in the case that the student attends formal education or in-service training with the aim of professional development. This means that the employer is obliged to compensate the study leave in any case if it is formal education and also when it is not related to the activities of the company, e.g. the employee works as a waitress but studies to become a seamstress in a vocational school. But regarding the in-service training, the employer has the right to consider whether to pay or not. All depends on whether participation in the in-service training is in the interest of the employer or not. The employer shall assess, whether it is a work-related professional development based on the needs of the place of work and position. The employee shall also have the right to receive additional study leave of 15 calendar days for finishing the formal education (e.g. Master’s degree) for which the employer shall pay the holiday pay in the amount of a minimum rate of the wages. Since completing the studies is a single action, the law includes the right of the employer not to provide a study leave for completing the studies if it already has enabled a study leave for completing the same curriculum.
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A study leave not used during the calendar year shall not be transferred to the next calendar year and it shall not be compensated at the termination of the employment relationship. Taking a study leave The employer must be notified about taking a study leave for at least 14 calendar days in advance. Notification must be formulated in a format which can be reproduced in writing (e-mail, letter, etc.). The application shall indicate the type of study leave (whether for completing the formal education or ordinary). Study leave can be taken in one or several parts. The law does not prohibit taking the leave by one day (except if study leave is taken only on days off). It is also necessary to submit the certificate from the educational institution to the employer when taking the study leave. The employer shall pay the study leave remuneration on the penultimate working day before the start of the holiday, but it can be agreed that it shall be paid on the pay day. When is it possible to refuse to grant the study leave? The first basis for refusal is when the employee does not notify appropriately 14 days in advance or does not submit the certificate of the educational institution to the employer. The employer shall also be entitled to refuse to grant the study leave if the employee is on academic leave. The employer may ask the educational institution to make the relevant mark on the certificate of the educational institution. But here is one but – if the educational institution allows participation in the studies during the academic leave and the employee uses that opportunity, the employer shall have no grounds for refusing to grant the study leave. The employer has the right to refuse to grant the study leave if the day of the study leave or the consecutive study leave days fall only on the employee’s days off. Hence, when the employee works, for example, from Monday to Friday, it is forbidden to use the study leave at the weekend, since it then falls on the days off. The employer can also interrupt the study leave or postpone granting it according to the terms specified in § 69 (5) of the ECA (urgent necessity). Emergency primarily means possible damage or a threat of such damage to the employer’s property or other amenities due to force majeure. Hence, any situation (e.g. need for substitution) does not qualify as an emergency. The employer should keep in mind here that the Adult Education Act does not associate receiving the study leave with specific activities or study sessions but participation in training in general. Participation in training means activities addressing completion of the curriculum that may take place in lectures or traineeship but also in the form of independent work.
THE ABCs OF WORK FOR EMPLOYER | 19
Family holidays • Child care leave. A mother or a father has the right for three or six working days of child care
leave each calendar year. It is allowed to have three working days of child care leave if she or he has one or two children under 14 years of age. It is allowed to have six working days of child care leave if she or he has at least three children under 14 years of age or at least one child under three years of age. The fee for the child care leave is calculated based on the minimum rate of the wages and is compensated to the employer from the state budget. Child care leave for a disabled child. A mother or father of a disabled child has the right to child care leave of one working day per month until the child reaches the age of 18 years. If there are several disabled children, the parent may take additional leaves according to the number of disabled children. The primary goal of the legislator is to motivate parents with disabled children to take the child care leave once a month to enable them regularly deal with the needs of their disabled child. Hence, the law does not directly prescribe the opportunity to add the child care leave days. At the same time the law does not prohibit the parties to make a different agreement. The holiday pay is paid, based on the average wages and compensated to the employer from the state budget. Child care leave without pay. A mother and father who is raising a child of up to 14 years of age or a disabled child of up to 18 years of age has the right to child care leave without pay of up to ten working days every calendar year. NB! The child care leave not used during the calendar year shall not be transferred to the next calendar year. Paternity leave. A father has the right to receive total of ten working days of paternity leave during two months before the birth of the child or within two months after the birth of the child. Paternity leave shall be remunerated on the basis of his average wages. Holiday pay is compensated to the employer from the state budget. Adoptive parent leave. An adoptive parent of a child under 10 years of age has the right to adoptive parent leave of 70 calendar days as of the date of entry into force of the court judgement approving the adoption. There is a right to obtain compensation for such a period in accordance with the Health Insurance Act. Pregnancy and maternity leave. The length of the pregnancy and maternity leave is 140 calendar days and it can be taken from the 70th calendar day before the estimated date of birth. Estonian Health Insurance Fund shall pay the maternity benefit for the pregnancy and maternity leave time. Child care leave. A mother or father has the right to child care leave until his or her child reaches the age of three years. The employment relationship will be suspended during staying at the child care leave and the employer shall indicate it also in the employer’s records. The Social Insurance Board shall pay the parent compensation to the parent.
As for the annual holiday and the study leave, the employee has to submit an application to the employer in a format which can be reproduced in writing (e-mail, letter, etc.) for using the family holiday that is made at least 14 calendar days before going on a holiday. Family holidays (except the parental leave) are all included in the time granting the annual holiday.
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If the employee has several employers and they use child care or paternity leave by several employers, the state will compensate the holiday pay for all employers. As for the holidays compensated from the state budget, the employer will submit the application to the Social Insurance Board about the person latest within 3 months from the month the person used the holiday.
Time of paying the holiday pay The employer shall pay the holiday pay for the annual holiday, study leave and child care and paternity leave latest on the penultimate working day before the start of the holiday. The parties may agree on later payment of the holiday pay but not later than the next pay day after the end of the holiday.
Calculation of the holiday pay Holidays based on the calendar days: Annual holiday, study leave Calculated on the basis of wages earned by the employee during six months prior to calculating the holiday pay. The wages and calendar days of the six months are summed up. The days when the employee was absent for a significant reason (e.g. illness, holiday, representation of employees based on conditions stipulated in the collective agreement, or military service, or) are not included in the calendar days. National and public holidays are not included in the calendar days for the annual holiday. The wage sum is divided by the number of calendar days, which gives the average calendar day wages that is multiplied by the number of calendar days of the length of the holiday. This gives the amount of the holiday pay. NB! If the employee was paid fixed-size remuneration during the past six months (or a shorter time period) and the remuneration did not change, the average calendar day wages is not calculated and the fixed remuneration shall be paid out to the employee as the holiday pay. Working day-based holidays: Child care leave of the disabled child, paternity leave Calculated similar to the holidays based on calendar days but the added wages are divided by the number of calendar working days (Mon-Fri, except public holidays). This gives an average wages of one working day. Holiday compensation If the employee does not use the annual holiday during the employment relationship, the employer has to compensate it in cash at the termination of the employment relationship. And there is no difference, whether the employee worked for two weeks or two years. NB! If an employee with with partial or no work ability does not use the annual holiday, and the employer has to compensate the annual holiday in cash at termination of the employment THE ABCs OF WORK FOR EMPLOYERâ€‡|â€‡21
relationship, it must be known that the Social Insurance Board does not compensate seven calendar days since it is the holiday compensation and not the holiday pay paid for the time, spent on holiday. If the employee has used the holiday more than earned, the employer has the right to withhold the remuneration by the unearned holiday at termination of the employment contract.
Expiry and cancellation of employment contract Expiry of employment contract The employment contract may expire on the following bases:
• Expiry of the employment contract by agreement of the parties The employment contract expires by agreement of the parties when one party proposes the other party to terminate the employment contract and the other party gives their consent to it. The proposal can be made orally, but to avoid further disputes, it is recommended to do it in writing or in a format which can be reproduced in writing.
• Expiry of employment contract upon expiry of term
An employment contract entered into for a specified term expires upon the expiry of the term. It is not necessary to inform the employee about arrival of the term and it is also not necessary to formulate termination of the employment relationship but to avoid misunderstanding, it would be reasonable to inform the employee about arrival of the term and hence termination of the employment relationship. If the employee continues working also after expiry of the term, the contract shall be deemed a contract of unspecified term. The employer may still deem the contract as expired after the term of the contract if they express their wish within five working days as of learning or when he or she should have learnt that the employee was continuing to perform the employment contract.
• Upon death of the employee; • Upon death of the employer who is a natural person;
Cancellation of employment contract An employment contract can be unilaterally cancelled with submitting a declaration of cancellation to the other party. Since this is a declaration of intention, it does not require the consent of the other party. It is important that the other party receives the declaration of intention. Declaration of cancellation must be formulated in a format which can be reproduced in writing (on paper, e-mail, fax, SMS, etc.). It is not forbidden to present the declaration of cancellation during, for example, the holiday or sick leave.
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The declaration of cancellation that is made by violating the procedural requirement (made orally) or that is conditional, is void. It is also not possible to cancel the employment contract retrospectively. Ordinary cancellation of employment contract An employment contract may be cancelled either in ordinary or extraordinary manner. Only the employee can cancel the employment contract in ordinary manner by giving a prior notice of at least 30 calendar days. On a probationary period, the employee has to give a 15-day prior notice of ordinary cancellation. The employee is not obliged to give reasons for ordinary cancellation. If an employee gives a shorter prior notice than prescribed by the law about cancellation of the employment contract, the employer is entitled to demand compensation for the occurred damages. The employer may demand compensation from the employee if the employer proves that the employee’s wrongful leaving before the term for advance notice has caused them damage. Direct damage in such situations may be, for example, need of outsourcing of a service until finding a new employee, also remuneration paid for the overtime to the employees who substituted the employee who left. Extraordinary cancellation of employment contract An employee as well as an employer may extraordinarily cancel the employment contract (contract for specified term and for unspecified term). The employee can cancel the employment contract if the employer fundamentally breaches their obligations or if the employee cannot continue to work due to a reason arising from the employee (e.g. taking care of a sick family member or decrease in capacity for work). The employer has the right to extraordinarily cancel the employment contract due to lay-off situation or if the employee cannot perform their duties due to worsening state of health or decrease in capacity for work or when they have committed a wrongful act. The employee or employer will cancel the employment contract within a reasonable time after receiving information about the cause for cancellation. Extraordinary cancellation must be grounded in the declaration. The terms for advance notice of cancellation of employment contract by the employer The employer shall inform about cancellation of the employment contract within a reasonable time if it has been caused by the decrease in capacity of work of the employee or violation committed by the employee. In the case of the lay-off, the term of advance notice depends on the time worked by the employer: • less than 1 year of employment – no less than 15 calendar days; • 1–5 years of employment – no less than 30 calendar days; • 5–10 years of employment – no less than 60 calendar days; • 10 and more years of employment – no less than 90 calendar days.
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If the employer does not inform about cancellation of the employment contract at a term prescribed by law, they are obliged to compensate the days of shorter notice in money. The employer has the right not to give a prior notice of cancellation of the employment contract only on exceptional cases if considering the interest of both parties, it is not reasonable to continue the employment contract until the expiry of the term for advance notice. Final settlement Upon expiration of the employment contract, the employer shall pay the employee an earned wages and compensations prescribed by law, including for the not expired unused annual holiday. The terminal wages must be paid out at the last day of the employment relationship. If the employment relationship ends on the public holiday or weekend, the terminal wages can be paid on the working day after the holiday. The employer shall register the end of the employment relationship in the employment register within 10 (ten) days after the end of the employment relationship. The employee shall return the employer the advance payments and work equipment given to their disposal.
If a labour dispute arises? It is reasonable to resolve any disagreement arising from the employment relationship between each other by agreement between the employee and employer by following the principle of good faith and reasonableness. If needed, the dispute may be resolved by mediation of the employees’ representative. But if it is found that the issue cannot be resolved between each other or in case of failure to agree, it is possible to address the labour dispute resolution body. In Estonia, there are two labour dispute resolution bodies: Labour dispute committee and the court. An application to the labour dispute resolution body must be submitted during a specific term. The Employment Contracts Act stipulates the terms of expiry for filing the claims: • The limitation period for filing a claim concerning the recognition of rights or protection of violated rights arising from employment relationships in order to take recourse to a labour dispute resolution body is four months from the time the person became aware or should have become aware of violation of their rights. • As an exception, the time limit for filing the claim of disputing cancellation of the employment contract is 30 calendar days from receiving the declaration of cancellation, not the expiry of the contract. This time limit is valid for the employee as well as the employer. • The time limit for filing the remuneration claim is three years from the remuneration falling due. The remuneration falls due on the pay day. • The employer’s claim for the compensation of damage against the employee expires within 12 months from the time the employer became aware or should have become aware of the occurrence of the damage and the person obligated to compensate it but not later than three years after the occurrence of damage.
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In calculating the terms, the fact that the term starts from the day after the day of the event, e.g. the day after the pay day in case of the remuneration claim is taken as the basis. The term expires on the last day of the term.
What does the Labour Inspectorate do? According to § 29 of the Constitution of the Republic of Estonia, working conditions are under the control of the state. This means that the state is obligated to exercise state supervision over the working conditions. The Labour Inspectorate is responsible for that. In addition to the supervision, the goal of the Labour Inspectorate is to help the employer understand the need for managing the working environment and direct them towards creating safe and healthy working conditions and forming correct employment relationships.
State supervision The state supervision is performed by labour inspectors who control the occupational health and safety conditions in the company. The labour inspectors-lawyers check the employment relationships. For the supervision, the labour inspector agrees the visiting time in advance with the manager of the company and also explains its objective. Usually, they perform ordinary inspections that, contrary to the common opinion, are not caused by someone’s complaint. Sometimes the labour inspector visits the company without advance notice, for example, for a follow-up inspection or responding to the claim and finding out the circumstances indicated in it. The employer’s representative of the company and, if possible, the representative of employees or the working environment representative or the trustee are involved in the inspection. The outcomes will be formulated in the minutes. If the labour inspector detects violations that the employer has not eliminated within five working days, they prepare a precept with the terms for elimination. If the deficiency is very serious (harmful to life or health), a precept is prepared to stop the performance of the dangerous work or use of a dangerous work equipment. In case of more serious violations, a misdemeanour procedure together with imposing a fine may follow. If a labour inspector goes to a verification visit, they will always be ready to advise the company regarding the improvement of employment relationships or working environment.
Resolution of a labour dispute There are labour dispute committees in the Labour Inspectorate where they solve labour disputes between the employee and the employers (free of charge). The labour disputes are reviewed within 45 calendar days from the day of submitting an application. Implementation of the decision of the labour dispute committee is mandatory like the execution of a court judgment. The labour dispute committee is comprised of the chairperson of the labour dispute committee (as the representative of the State), additionally the representative of the employees and employers appointed by the governing bodies of the employees and the central federations of employers. At a sitting, all three will hear both parties to the disTHE ABCs OF WORK FOR EMPLOYER | 25
pute and make a decision. If the parties do not agree with the decision of the labour dispute committee, they can address the county court with the same matter.
Counselling and notification The notification activities of the Labour Inspectorate include counselling and consulting, organising information days and other training activities, collection and distribution of best practices of the working environment and sharing information via different electronic channels. Counselling It is possible to ask for advice from the Labour Inspectorate via the following information channels: • Information on questions regarding implementation of the legislation supervised by the Labour Inspectorate can be received from Infoline 640 6000 of the Labour Inspectorate. On the Infoline, the advisor answers to questions regarding the employment contract, working and rest time, holidays, wages and safety of the working environment, also collective employment relationships. It is not possible to get answers or solutions by phone regarding the disagreements arising during the employment relationships. • Questions regarding the employment relationships and working environment safety can be submitted via e-mail of the lawyer at email@example.com. • It is possible to visit the lawyer during the reception hours in the Labour Inspectorate offices all over Estonia. The receptions take place in five towns – Tallinn, Tartu, Pärnu, Jõhvi and Narva. The reception hours of the counsellors are available at the homepage www.ti.ee/en/ of the Labour Inspectorate. It is possible to get advice in Estonian, English and Russian. Consultation The Labour Inspectorate has established a service of the working environment consultant to provide more personalised support and advice for employers. It is important for the employer to comprehend when there is a lack of professional competence within the company and help should be searched outside. A good opportunity to increase the working environment-related competence is to invite the working environment counsellor of the Labour Inspectorate to the company who will advise on the topics of occupational health and safety. The counsellor service is free for companies. Information days and other training activities The Labour Inspectorate organises information days all over Estonia where the current issues of the working life are explained. All information days and other training activities of the Labour Inspectorate (e.g. lectures on fairs and elsewhere) are free for the participants. E-channels
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Labour Inspectorate’s e-channels: • Labour Inspectorate’s web page www.ti.ee includes information about the activities of the Labour Inspectorate. Inter alia, the contact information of the local offices of the Labour Inspectorate, application forms, and other necessary information is available there to facilitate the work of the employer and the working environment specialist at managing the working environment. • The portal www.tööelu.ee gathering information about occupational health, safety and employment relationships, up-to-date information on information days, trainings and other. • The customer portal of the Labour Inspectorate eTI (https://eti.ti.ee) is an environment of information exchange between the Labour Inspectorate, employers and employees. Via the portal, the employer and the employee can follow proceedings in the Labour Inspectorate related to them and submit the notices and reports prescribed by law. • Electronic newsletter of the Labour Inspectorate is published four times a year. The newsletter is free and a relevant request form can be completed on the web page www.ti.ee.
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WORKING ENVIRONMENT OF THE EMPLOYER Checklist – what is the current state of the working environment of the enterprise?
Working environment requirement Structures Has a competent working environment specialist been appointed? Has the working environment specialist received in-service training (if necessary)?
Does the working environment specialist have time for fulfilling their duties?
Has a working environment representative been elected (for organisation with 10 or more employees)? Has the working environment representative received training?
Does the working environment representative have time for fulfilling their duties?
Has a working environment council been formed (for organisations with 150 or more employees)? Have members of the council received training?
Do members of the council have time for fulfilling their duties?
First aid Have first aid provider(s) been appointed?
Have first aid provider(s) been appointed for each site/shift?
Have first aid provider(s) received training/in-service training?
Are the names of first aid providers exhibited in a visible place and communicated to the employees? Has first aid equipment been provided?
Risk analysis of the working environment Has a risk analysis of the working environment been conducted?
Does the risk analysis include an assessment of physical hazards (noise, vibrations, air temperature, lighting, pathways safety, electrical safety, etc.)? Does the risk analysis include an assessment of physiological hazards (working in a forced position, e.g. sitting or standing, repetitive movements, manual handling of loads)? Does the risk analysis include an assessment of chemical hazards (e.g. petrol, chemicals used for cleaning, coffee machine detergents?) Does the risk analysis include an assessment of biological hazards (e.g. potential exposure to unwell clients/colleagues, ticks, animals, etc.)? Does the risk analysis include an assessment of psychosocial hazards (e.g. stressful work, communication with clients, continuous increased attention)? Is the risk analysis up-to-date? Has the risk analysis been reviewed and amended, if necessary, after changes in the working environment, such as acquisition of new equipment? Has an action plan been prepared for risk mitigation?
Is the implementation of the action plan under observation?
Is the action plan updated?
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Internal control of the working environment Has an internal control plan been prepared?
Is internal control conducted in all sites and areas of activity?
Are the results of internal control registered?
Is the rectification of deficiencies monitored?
Instruction and training of employees Have instructions been prepared for all work to be carried out and all work equipment to be used (e.g. instructions for working with display device, for cleaning staff, for using lawnmowers)? Are safety instructions of work equipment based on the manufacturer’s user manuals (e.g. for paper shredders, lawnmowers, turning lathes, saws, cranes)? Are the safety instructions appropriate (prepared/customised for a particular place of work, device, and job)? Are the instructions registered?
Are employees trained by experienced employees?
Is the training registered?
Is allowing an employee to work registered?
Medical examination Does the need for a medical examination become evident from the risk analysis of the working environment? Is the initial medical examination of employees arranged within the first four months? Are medical examinations arranged before starting work in the following cases: upon exposure to biological hazards, carcinogens, mutagens, lead and asbestos dust, and for night workers? Are the deadlines of repeated medical examinations followed?
Are decisions and suggestions implemented?
Personal protective equipment Does the need to use personal protective equipment and the necessary protective properties become evident from the risk analysis? Has necessary personal protective equipment been handed out to employees?
Is there a record of personal protective equipment that has been handed out?
Have mandatory signs for using personal protective equipment been placed?
Have employees received training on using personal protective equipment?
Is personal protective equipment used and is the use checked?
Are there appropriate conditions (rooms, lockers) for storing personal protective equipment? Hazardous chemicals Is there information on which hazardous chemicals are used?
Are there safety data sheets in Estonian for hazardous chemicals?
Have the safety data sheets been introduced to employees?
Has the personal protective equipment been selected, based on the information provided in section 8 of the safety data sheets? Is there an eye wash (a solution for rinsing eyes)?
Have the packages of chemicals been appropriately labelled?
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Organisation of occupational health and safety The organisation of occupational health and safety is regulated by the Occupational Health and Safety Act and regulations adopted pursuant to the act. The Occupational Health and Safety Act applies to employees but also to members of the management board. This means that members of the management board should also receive instructions and, if their health might be affected by any working environment hazard or the nature of the work during the work process, are subject to a medical examination by an occupational health doctor. The Occupational Health and Safety Act is not applicable to contracts for services, authorisation agreements or any other contracts under the law of obligations. When working on the basis of the contract under the law of obligations, the performer of the work is liable for their own safety. Nevertheless, any person working under any type of contract in the organisation or together with employees of the organisation needs to be notified of the hazards and measures of avoiding hazards. Working environment specialist
Appointed from among employees of the organisation
A person with working environment skills and knowledge whom the employer has authorised to perform occupational health and safety obligations
A service from service provider outside the organisation is used
A member of the management board performs the duties of a working environment specialist
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Working environment representative
Elected at a meeting of employees
Working environment representative – a representative in working environment issues elected by employees in organisations with more than 10 employees
Has undergone a 24-hour training
Performs the representative’s duties for two hours per week Working environment council
An equal number of members elected by the employees and designated by the employer
A body for co-operation between the employer and employees for organisations with more than 150 employees
Has passed 24 hours of training
One hour per week for performing the duties of a member of council THE ABCs OF WORK FOR EMPLOYER | 31
Notification to the Labour Inspectorate within 10 days (firstname.lastname@example.org) or using the customer portal eTi: • about appointment of working environment specialist by submitting their first name and surname, position and contact details • about the election of a working environment representative by submitting their names and positions First aid provider and organisation of first aid
There is at least one employee in the place of work that has received first aid training
Organisation of first aid
The first aid equipment is fully available
The emergency phone number and instructions are displayed in a visible place
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Risk analysis COLLECTION OF INFORMATION
IDENTIFICATION OF RISKS
• What kind of work is performed? • Which tools, materials and methods are used? • Which working methods are used? • Who performs the work? • Where is the work performed? • What type of accidents or other damages to health have previously occurred?
• What are the specific workrelated hazards? • Who are the persons at risk? • What is the duration of exposure to hazards? • Which protective measures are used?
Observation of the working environment and work process, employee interviews, technical specifications (user manuals, safety data sheets) of equipment, materials or substances used can contribute to this process.
RISK ASSESSMENT • Selection of the methodology of risk assessment • Analysis of the probability of occurrence of hazard? • Analysis of the potential damage arising from the hazard? • What other protective measures could be used?
DOCUMENTATION AND ACTION PLAN • Written formalisation of results • Planning of activities for reducing and avoiding risks • Written formalisation of the action plan Risk analysis is an activity of ascertaining working environment hazards and assessing their impact on the health and safety of employees. Risk analysis must be conducted in any case, regardless of the organisation’s area of activity or the number of employees. An employer may conduct a risk analysis itself or use a competent service provider. There are no standardised forms or rules for documenting a risk analysis. The employer decides the format of risk analysis. The written risk analysis document must be retained for 55 years (all versions of the risk analysis have to be retained).
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Risk analysis results are often written in a table that provides a good overview of the hazards and prevention measures. A risk analysis must be sufficiently detailed in order to reflect the specific working environment and working conditions to which employees are exposed. Upon preparation of a risk analysis, it has to be taken into account that in addition to the document compilers, it has to be easily understandable also for others (employees, occupational health doctor) and provide clear information on the working environment even in future decades when it will be impossible to observe the working environment of that time. A risk analysis needs to be updated when changes occur in the working environment or the organisation of work or work equipment is replaced (e.g. replacement of cleaning chemicals). Measurements In order to obtain detailed information on the organisation’s work environment and provide correct assessments during risk analysis, the parameters of risk factors present in the working environment need to be measured. There are parameters of risk factors that the employers can measure themselves, but there are also parameters that need to be measured in a manner that the results must be certifiably traceable in the meaning of the Metrology Act, i.e. the measurements have to be conducted by an accredited laboratory. The employers themselves can measure parameters such as air temperature, air humidity, and illumination. Action plan An action plan needs to be prepared based on the risk analysis, setting out the activities for avoiding or reducing health risks to employees in all areas of activity and levels of management of the company, the schedule and performers of these activities and the necessary funds will be allocated. What factors to consider during risk analysis? Working environment hazards are divided into five groups; a short description of each group follows. Physical hazards: • noise (noise level above 80 dB), vibrations; • ionising radiation (radioactive radiation), non-ionising radiation (ultraviolet radiation, laser radiation, infrared radiation); • electromagnetic field; • air velocity, air temperature and air humidity; • high or low atmospheric pressure; • moving or sharp parts of machinery and equipment; • deficient lighting; • risk of slipping, stumbling and falling; • risk of electric shock;
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• risk of explosion; • other similar factors. Chemical hazards are dangerous chemicals and materials containing such chemicals that are handled in the organisation. Dangerous chemicals are those, the package of which is labelled with any of the following signs:
Biological hazards are micro-organisms (bacteria, viruses, parasites, fungi, etc.), including genetically modified micro-organisms, cell cultures and human endoparasites (human microflora) and other biological agents (e.g. pollen, grass pollen, animal hairs) that may cause an infection, allergy or intoxication. Physiological hazards are heavy physical work, repetitive movements of the same type, working positions (sitting, standing) and forced positions and movements in work which cause overfatigue, manual handling of loads, and other similar factors that may gradually cause damage to health. Psychosocial hazards are working with risk of accident or violence, unequal treatment, bullying and harassment at work, work not corresponding to the abilities of an employee, working alone for extended periods, monotonous work, and other factors concerning management, organisation of work and the working environment that can have an effect on employees’ mental and physical health, including causing work stress.
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Medical examination by an occupational health doctor The employer shall arrange a medical examination for the employees whose health can be influenced as a result of risk assessment of the working environment by the following working environment hazards or the nature of work: • noise; • vibration; • electromagnetic fields; • artificial optical radiation; • ionising radiation; • dangerous chemicals and materials containing such chemicals, including carcinogens and mutagens; • biological hazards; • working with a display device; • manual handling of loads; • continuous work in a forced position, including sitting or standing; • other hazards or the nature of work. Regardless of the results of risk assessment, the employer shall organise a medical examination for night workers and employees exposed to lead and its compounds and to asbestos dust. In general, a medical examination must be conducted within four months from the employee’s commencement of work. In cases of exposure to biological hazards, carcinogens, mutagens, lead and its compounds and asbestos dust, a medical examination must be conducted prior to exposure to these hazards, and for night workers before they commence night work. A night worker is an employee who works at night (22:00–06:00) for at least 3 hours of their daily working time or at least a third of their annual working time. Routine medical examination must be conducted at intervals prescribed by the occupational health doctor but no less than once in three years, and at least once a year for employees who are minors. The employer shall bear the costs related to medical examination. The medical examination shall be performed during the working time and the employee shall be paid average wages during this time.
Personal protective equipment Personal protective equipment is any device worn or held by an individual (on their back, head, foot or hands) that has been designed and manufactured for the protection against any hazards endangering their lives and health. The employer must equip the employees with personal protective equipment if the risk of accident or illness cannot be avoided or limited at the place of work by using collective technical protective equipment or work-related organisational measures.
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Selection of personal protective equipment The employer must identify the hazards present in the working environment during risk analysis and, on the basis of this, assess the arising risks to an employee’s health and safety. In other words, a specific problem has to be identified first and then solved using appropriate measures. When acquiring personal protective equipment, the personal protective equipment must: • fully comply with the protection needs; • not cause excessive burden to the individual or reduce the effect of the employee’s sight or hearing correction devices, e.g. an employee wearing glasses should get special safety goggles that can be worn on top of the employee’s glasses; • fit the user; • be appropriate for working in the given working conditions; • meet ergonomics requirements and be in compliance with the employee’s state of health. The same personal protective equipment may be used by several employees, if the employer has ensured measures for its cleaning and disinfection prior to each use by another user. The employer must keep a record of personal protective equipment issued to employees. It is recommended to record the following information: • to whom the personal protective equipment was handed out; • which type of personal protective equipment was handed out (make and model); • when the personal protection equipment was handed out; • employee’s signature confirming the receipt of equipment. Personal protective equipment must be stored in a place where it is protected from damage and contamination during off-use time. This way, the equipment will have longer service life and the necessary level of protection will be ensured. The storage may be a closable locker intended for this purpose. Employees must use the personal protective equipment issued to them according to the user manual and instructions provided by the employer and keep the equipment in working order. Although pursuant to law, employees are responsible for the proper use of the personal protective equipment issued to them, the employer also has the obligation to ensure that the personal protective equipment is used according to the user manual provided by the manufacturer from the beginning to the end of the dangerous work and check its use. This means that the employer must check whether the employees use the personal protective equipment issued to them properly throughout the duration of the dangerous work.
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Instruction and training The employer shall give instructions to an employee before the commencement of work. The basis for the instruction shall be the safety instructions for the work to be carried out and the work equipment to be used, prepared and approved by the employer. For work equipment, the safety instructions have to take into account the information provided in the user manual of the equipment. The following information needs to be expressed during instruction: • occupational health and safety requirements in the organisation, and the contact details of the working environment representative and working environment specialist; • results of the assessment of working environment risks, including the employee’s working environment hazards, health risks and measures taken to avoid damage to health; • the safety requirements of the work to be carried out and the work equipment used; • ergonomically correct working positions and techniques; • use of collective and personal protective equipment; • action in case of damage to health, including first aid instructions, use of first aid equipment and its location, the emergency call number 112, and the contact details of the first aid provider; • safety requirements for electricity and fire; • instructions for action in case of a risk of accident or an accident, safety signs used at the place of work, locations of emergency exits and escape routes and location of fire extinguishing equipment; • instructions for preventing contamination of the environment. The employer shall organise on-site training for acquiring safe working techniques, taking into account, among other factors, the specificities and danger of the employee’s work. The employer must repeat instructions to and training of an employee in the necessary volume and extent, if • changes occur in the company’s organisation of occupational health and safety; • the employee’s tasks change, or the employer provides an employee with a new work equipment or technology; • the employee has remained off work for an extended period of time; • the employee has violated occupational safety requirements, causing or potentially causing an accident, including an occupational accident; • an employee, the employer or the Labour Inspectorate deems it necessary. The employer shall allow an employee to work after making sure that the employee is familiar with the company’s organisation of occupational health and safety and knows how to apply safe working techniques in practice. The employer shall register the date and content of instructions and training in writing or in a format which can be reproduced in writing. An employee shall confirm receiving instructions and training in writing or in a format which can be reproduced in writing.
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Accident at work AN ACCIDENT AT WORK OCCURRED Serious accident at work – immediately inform the Labour Inspectorate Fatal accident at work – immediately inform the Labour Inspectorate and the police
Enquiry, including observation of the site, collection of explanations, examination of documents 10 working days from the day of accident Is not an accident at work: Is an accident at work: A formal report on the accident at work
Even if an accident does not cause incapacity to work, it still needs to be investigated but registering it will be up to the employer
An act in free form with an explanation of the circumstances Signed by the employer and working environment representative. Submit to the Labour Inspectorate and the injured party or protector of interests thereof within three working days. kaitsjale
Taking measures to avoid similar accidents at work in the future
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Occupational diseases A statement of diagnosis of occupational disease of an employee received from the occupational health doctor
Enquiry – collection of explanations, examination of documents, including medical examination documents, risk analysis, records on the instructions and training provided to the employee – 20 working days from the receipt of the statement
A standard format report on the occupational disease
Signed by the employer and working environment representative. Submit to the Labour Inspectorate and the injured party or protector of interests thereof within three working days.
Taking measures to avoid similar occupational diseases in the future
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Design and inspection of a place of work The employer shall design a place of work to suit the work and the specific employee and their specificities. When designing a place of work, the employer must take into account both safety and ergonomics so that the employee could work in a suitable and comfortable working position. It is necessary to continuously work towards maintaining a good working environment in order to check the situation of the working environment and if necessary, make improvements to the situation. This means that the employer should consider how to get information on the problems that occur in the working environment and how he can ensure that all occupational health and safety requirements are met in the company. Thus, it is reasonable for the employer to establish a so-called organisation of the working environment and a system to check the working environment (internal control plan).
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