Labor Law provides the possibility of engaging individuals without establishing an employment relationship, through the conclusion of a contract for temporary and periodical jobs. Such engagement is time-limited and may last up to 120 working days in a calendar year. By the nature of things, as well as by mandatory regulations, a contract for temporary and periodical jobs is concluded when there is a need to engage a person for tasks that need to be performed over a shorter period, which can be continuous (temporary jobs) or periodic when there is a need for the work to be done (periodical jobs).
In any case, after the expiration of 120 working days in a calendar year during which the individual was engaged under a contract for temporary and periodical jobs, the contract terminates. Engaging the same individual under such a contract is possible only if the person is assigned to a different position. On the other hand, if the need for the same tasks performed by the individual during the 120 working days continues, the employer is obliged to conclude an employment contract for those tasks.
Legitimate question arises: what happens when, after the expiration of 120 working days in a calendar year, the individual continues to perform tasks for the employer, even though the contract for temporary and periodical jobs has ended? It is undisputed that an individual who has performed actual work for the employer is entitled to compensation for the work done. However, when it comes to the right to transform engagement outside of an employment relationship into an employment relationship, court practice has divided opinions.
Some courts have taken the position that when an individual performs temporary and periodical jobs for an employer, and those jobs are not systematized by employer’s rulebook, it is clear that this constitutes work outside of an employment relationship, and there are no conditions for establishing the existence of an employment relationship (as per the judgment of the Court of Appeals in Belgrade, Gž1 1629/2015 from 30 November 2017). This is different from the possibility of transformation in cases where a fixed-term employment relationship turns into a permanent one. Therefore, the legal nature of the contract for temporary and periodical jobs is that it does not establish an employment relationship.
On the other hand, the Supreme Court, as the highest judicial instance in our legal system, has taken the position that the conclusions of lower courts were incorrect when they rejected plaintiffs’ claims for the establishment of an employment relationship, if they were engaged based on contracts for temporary and periodical jobs, due to the legal nature of such contracts (from the ruling of the Supreme Court of Cassation, Rev2 835/2017 of 30 April 2017). Specifically, the Supreme Court explained that if an individual is engaged in tasks that, by their nature, do not constitute temporary and periodical jobs, given that the need for such tasks lasts longer than 120 working days in a calendar year, the employer was obliged to conclude an employment contract for those tasks (which are specified in the rulebook on systematization of jobs).
Among the most recent court decisions, the position has also been confirmed that an individual performing work based on a contract for temporary and periodical jobs can initiate a court procedure by filing a lawsuit to establish the existence of an employment relationship. This confirms the stance that contracts for temporary and periodical jobs can be transformed into an employment relationship (as per the judgment of the Supreme Court of Cassation, Rev 4783/2022 from 2 February 2023).
From all of the above, the answer to the question regarding the possibility of transforming the form of employment engagement is not clear. On one hand, it is clear that a contract for occasional and periodical jobs does not have the nature of a contract that establishes an employment relationship. On the other hand, it is necessary for labor legislation to serve as a safeguard against the abuse of rights that can often arise in this area. In conclusion, it can be said that the courts have agreed on one point: the inclusion of a job position in the rulebook on systematization of jobs is a clear indication that subject job do not have the nature of occasional or periodical job.
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