Text file: 1342.txt
author: samo.trtnik
downvotes: 4
end consideration date: 2011-01-15
id: '1342'
number comments: 8
number views: 5643
proposal type: Competent authority response
response: "Response by the Ministry of Labour, Family and Social Affairs\n\nAnalysis\
  \ of the status quo:\nThe obligation to apply for and publish a vacancy or type\
  \ of job, as laid down in the Labour Market Regulation Act (Official Gazette of\
  \ the RS, No 80/10 - hereinafter: LML), is in line with the provision of Article\
  \ 23 of the Labour Relations Act (Official Gazette of the RS, No 42/02 and 103/07\
  \ - hereinafter: LRA), according to which an employer who recruits new employees\
  \ must publicly announce the vacancy or type of job. Employers are obliged to send\
  \ to the Institute applications for vacancies or types of work with a specified\
  \ deadline for applications and the conditions that the worker must fulfil in order\
  \ to perform the work, except where they conclude a new employment contract for\
  \ a fixed or indefinite period for the same post or type of work with a worker who\
  \ is already employed, or where, under the ZDR and under the ZUTD, an employment\
  \ contract is concluded without public announcement. When the institution receives\
  \ an application for a vacancy, it shall publish the vacancy publicly at the employer's\
  \ request (the employer may provide publicity by other means), in which case it\
  \ shall carry out all the procedures relating to the placement of the job.\nThe\
  \ content and manner of publication of a vacancy is regulated in more detail by\
  \ the Regulation on the Notification and Publication of a Vacancy or Type of Work,\
  \ the Procedure for the Mediation of Employment, and the Content and Manner of Reporting\
  \ Information to the Employment Service of the Republic of Slovenia (Official Gazette\
  \ of the Republic of Slovenia, No 105/10; hereinafter referred to as the 'Regulation'),\
  \ which stipulates in Article 6(1) that publication on the premises of the Employment\
  \ Service and on the website of the Employment Service shall be deemed to be public\
  \ publication. The Institute, in agreement with the employer, also publishes vacancies\
  \ or types of work in the media. In accordance with the provisions of the Regulations,\
  \ on receipt of an application for a vacancy or type of work in which the employer\
  \ indicates that it wishes to participate in the placement of candidates for employment,\
  \ the institution must ascertain whether there are any persons registered in the\
  \ records kept by the institution pursuant to the provisions of the TECL for whom\
  \ employment in that vacancy or type of work would constitute suitable or appropriate\
  \ employment and:\n  offer the vacant post or type of work to those persons who\
  \ meet the conditions of the vacant post or type of work, verify their qualifications\
  \ and willingness, agree with the employer on the modalities of cooperation, and\
  \ make a referral of an agreed number of the most suitable candidates.\nOn the expiry\
  \ of the deadline for applying for the vacancy or type of work, the Jobseeker's\
  \ Centre will provide the employer with information on the candidates referred and\
  \ request the delivery of a notification of the outcome of the placement, and may\
  \ also participate in the job interviews.\nHowever, in accordance with Article 27\
  \ of the LSA, the Institute has the possibility to refuse to refer candidates to\
  \ employers with negative references, on whom it keeps a register in accordance\
  \ with Article 123(1)(5) of the LSA, as long as they are entered in the register\
  \ of employers with negative references.\nAnalysis of the proposal and reasons for\
  \ its (in)suitability:\nThe proposal submitted is considered to be well-intentioned,\
  \ but in general very difficult and, on the basis of the current legislation or\
  \ possible changes thereto in the area covered by the LFTCA, not feasible at all.\
  \ The fundamental obligation of any employer wishing to advertise a vacancy or a\
  \ type of work is to advertise it publicly, and this obligation is laid down in\
  \ the Labour Code. The point of publicly advertising vacancies or types of work\
  \ and reporting them to the institution is to make the possibility of employment\
  \ or work known to the widest possible range of potential candidates for the vacancy\
  \ or work in question. The problem of the publication of (what the proposer calls)\
  \ 'apparent vacancies' is undeniably present in these procedures, but in our view\
  \ it should be addressed in the context of amendments to the HRA and other sectoral\
  \ legislation. This legislation lays down the obligation to make public any vacancy\
  \ or type of job when an employer recruits new employees, but does not provide a\
  \ basis for creating exceptions to this rule, as would also be the case if the employer\
  \ were required, at the same time as applying for the vacancy or type of job, to\
  \ submit to the institute information on a candidate whom he had 'unofficially'\
  \ selected himself. Such a requirement on the employer could also be controversial\
  \ from the point of view of the rules governing the protection of personal data.\n\
  In order to understand the above, it should be further explained that the provision\
  \ of Article 7 of the TIRL constitutes a concretisation of the provision of Article\
  \ 23(2) of the Labour Code, since it lays down the manner and procedure by which\
  \ public advertising is to be carried out. This means that, in this context, the\
  \ obligation arising from the systemic regulation of employment and unemployment\
  \ insurance is limited to the obligation to notify a vacancy or a type of work to\
  \ the institution, which, as already mentioned, does not allow for the selection\
  \ of such notifications for the purpose of creating exceptions to the obligation\
  \ to publish publicly in cases such as those referred to by the petitioner.    "
response date: 2011-04-20
response due date: null
sent date: 2010-12-16
title: (non-)obligation to advertise a vacancy
upvotes: 9
url: https://predlagam.vladi.si/predlog/1342
