Question:
There is a construction company. There is currently a month break between projects, one project is ending and the next one will only start in July, so we are not able to keep our staff busy for that month. Should we compensate them for this month or should they keep their average earnings or something?
The conditions for downtime are set out in Article 57 and the second part of Article 74 of the Labour Law, namely. The employer has the right to assign an employee for up to one month during a one-year period to carry out work not provided for in the contract of employment in order to prevent the consequences of force majeure, accidental occurrence or other exceptional circumstances adversely affecting or likely to affect the normal course of work in the undertaking. In the event of downtime, the employer shall have the right to assign the employee to perform work outside the scope of the contract for a maximum period of two months in any one-year period. (Article 57(1) of the Labour Code) The employee's obligation shall be deemed to have been fulfilled and the employer shall be obliged to pay the remuneration provided for in the third paragraph of this Article even if the employer does not employ the employee or does not take the actions necessary to accept the fulfilment of the employee's obligation (idle time). The employee shall not receive such remuneration for any idleness caused by the fault of the employee (Article 74(2) DL).
Idleness is a situation where the employer does not employ the employee and does not take the actions necessary to accept the employee's performance of the obligation. As an example already given in the present case, in a construction company there is a one-month break between projects, so that the employees are not provided with work for one month.
It follows from the provision of Section 74(2) of the Labour Law that idleness corresponds to situations where the employer does not employ an employee who is not prevented from performing the duties of his or her post under the employment contract and who is willing to do so - in essence, it means an unjustifiable or culpable act of the employer.
It should be noted that idle time should be distinguished from cases where the employer has the right to suspend the employee. Cases of suspension are defined in Article 58 of the Labour Law, namely, the employer has the right to suspend an employee from work if the employee is under the influence of alcohol, drugs or toxic substances while at work or at the workplace, and in other cases where the employee's failure to be suspended may harm his or her own safety and health or that of third parties, as well as the legitimate interests of the employer or third parties.
Consequently, if the above-mentioned preconditions for suspension are not established and/or the procedure for suspension is not followed, and the employer does not employ the employee or does not take the necessary steps to fulfil the employee's obligations, an idleness will be established.
The Labour Law does not contain any specific requirements regarding the identification of idle time, nor does it contain an obligation for the employer to inform the employee of the occurrence of idle time by means of an appropriate order. However, employees must not report for work until they have received the appropriate notification from their employer. Similarly, in the event of an idle period, the employer is not entitled to require the employee to apply for unpaid leave.
According to Section 57(1) of the Labour Law, an employer may assign an employee to perform work not provided for in the employment contract for a maximum period of two months in one year in the event of downtime. Therefore, in such circumstances, the employee's consent is not required for the performance of the non-contractual work and the employer is entitled to issue a unilateral order. In other words, no separate agreement or amendment of the contract of employment is required.
To summarise the above, I would like to reiterate that, according to the Labour Law, if an employment contract with an employee is concluded for an indefinite period, for example, with normal working hours and a salary of LVL 200,-, then the employer is obliged, despite the absence of a construction site, to pay the salary also for idle time, because the employee is not to blame for the „idle” business of the employer. In real life, on the other hand, construction companies do things differently, with employment contracts for a fixed period of time - until the completion of certain works on the site or the whole site. However, in the view of the State Labour Inspectorate, they could be considered as employment contracts of indefinite duration, as construction as such is the primary occupation of the construction contractor, and not a temporary occupation that would allow for a fixed-term contract.
In conclusion, Article 74 of the Labour Law does not link the right to receive remuneration for idle time to the presence or absence of any other additional provisions. The employee does not receive compensation only if the idle time is caused by the employee's fault.
Source: www.ifinanses.lv
