Text file: 3561.txt
author: "jan\u010Di"
downvotes: 0
end consideration date: 2012-09-27
id: '3561'
number comments: 3
number views: 3943
proposal type: Competent authority response
response: "Response by the Ministry of Labour, Family and Social Affairs\nAnalysis\
  \ of the current situation\nThe Labour Relations Act (Official Gazette of the Republic\
  \ of Slovenia, No. 42/02, 79/06-ZZZPB-F, 46/07-Odl. US, 103/07, 45/08-ZArbit and\
  \ 83/09-Odl. US, hereinafter referred to as the \"LRA\"), in the chapter on the\
  \ rights and obligations of the parties when concluding employment contracts, provides\
  \ for the formal public announcement of a vacancy or type of work as an obligation\
  \ of the employer, with certain exceptions. The right to equal access to every job\
  \ under equal conditions is also an element of the constitutionally protected freedom\
  \ to work (Article 49 of the Constitution of the Republic of Slovenia). However,\
  \ both constitutional provisions can only be implemented if the available jobs are\
  \ publicly advertised. Exceptions to the obligation to publish publicly may be provided\
  \ for only by law (Article 24 of the ZDR). Although the ZDR does not expressly define\
  \ what means of publication are to be regarded as public publication, it can be\
  \ concluded from the entire text of Article 23 that public publication refers to\
  \ publication in the media or through the Employment Service of the Republic of\
  \ Slovenia (hereinafter: the Service).\nAccording to the Labour Market Act (Official\
  \ Gazette of the RS, No 80/10 - hereinafter: LMA), employers are obliged to send\
  \ to the Employment Service applications for vacancies or types of work with a specified\
  \ deadline for applications and the conditions that the employee must fulfil in\
  \ order to perform the work, except when concluding a new employment contract for\
  \ a fixed or indefinite period for the same job or type of work with an employee\
  \ already employed or when, according to the LMA, an employment contract is concluded\
  \ without a public announcement. When an institution receives an application for\
  \ a vacancy, it shall publish the vacancy publicly at the employer's request (the\
  \ employer may also provide publicity by other means) and, if the employer so wishes,\
  \ shall carry out all the procedures relating to the placement of the job. The Agency\
  \ shall also, in agreement with the employer, make the vacancy or type of job available\
  \ to the media. In accordance with the provisions of the Regulation on the notification\
  \ and publication of a vacancy or type of work, the procedure for job placement\
  \ and the content and manner of communicating 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 \"Rules\"), upon receipt of an application\
  \ for a vacancy or type of work in which the employer specifies that it wishes to\
  \ participate in the placement of candidates for employment, the job centre must\
  \ determine whether there are persons registered in the records kept by the job\
  \ centre pursuant to the provisions of the LFSA for whom employment in that vacancy\
  \ or type of work would constitute suitable or suitable 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.\n\
  \ Analysis of the proposals and reasons for their (un)suitability\nIn the light\
  \ of the above-mentioned provision of the Constitution of the Republic of Slovenia,\
  \ which enshrines one of the human rights or fundamental freedoms, the obligation\
  \ to publish vacancies may be waived only in exceptional cases, as provided for\
  \ in the Labour Code. We would point out that, in the context of the drafting of\
  \ the new Labour Code, requests were made to delete the obligation to publish vacancies,\
  \ either in order to simplify the procedure for concluding employment contracts\
  \ or to remove administrative obstacles to recruitment. Given that free choice of\
  \ employment and equal access to employment are human rights enshrined in the Constitution\
  \ of the Republic of Slovenia, the Government of the Republic of Slovenia does not\
  \ derogate from the established regime in the ZDR.\nHaving assessed the proposal\
  \ received, we are of the opinion that the conclusion of employment contracts in\
  \ the cases described by the proposer is neither appropriate nor possible to resolve\
  \ by modifying the very institute of public announcement of a vacancy or type of\
  \ work in conjunction with the obligation to register it in advance with the Employment\
  \ Service of the Republic of Slovenia. If an employer fails to comply with the legal\
  \ requirement to publish a vacancy or type of job, the failure to do so is considered\
  \ an offence for which the employer may be fined. Apart from the penalty for the\
  \ offence, the ZDR does not directly provide for anything that may affect the existence\
  \ of an employment relationship or the validity of an employment contract, but the\
  \ ZDR has indirect provisions concerning the conclusion of an employment contract\
  \ without prior publication and the consequences of such conclusion. Article 11(1)\
  \ of the ZDR provides that the general rules of civil law shall apply mutatis mutandis\
  \ to the conclusion, validity, termination and other matters relating to an employment\
  \ contract. Nullity and voidability of a contract are two forms of invalidity of\
  \ contracts governed by Article 12 of the Labour Code. Nullity and voidability concern\
  \ the question of whether the preconditions for the valid conclusion of an employment\
  \ contract have been met and the question of the legal consequences of errors in\
  \ the conclusion of an employment contract. In assessing the nullity and voidability\
  \ of an employment contract, the rules laid down in the Code of Obligations must\
  \ therefore be taken into account. In the event of the nullity of a contract, as\
  \ well as in the event of the annulment of a voidable contract, restitution (reimbursement\
  \ of what has been received under the nullity or voidable contract) is a fundamental\
  \ obligation on both sides, and if this does not occur, appropriate financial compensation\
  \ is due. In the light of the above, we consider that the provisions of the HRA\
  \ relating to the obligation to advertise a vacancy or type of work are sufficient\
  \ and appropriate.\nThe fundamental obligation of any employer wishing to advertise\
  \ a vacancy or type of work is therefore to advertise it publicly, in order to make\
  \ the possibility of employment or work known to the widest possible range of potential\
  \ candidates for the vacancy or work in question. However, in accepting (preliminary)\
  \ applications for vacancies or types of work, the Institute is only an intermediary,\
  \ and its obligations under this title are imposed only in relation to the referral\
  \ of unemployed persons to advertised vacancies.\nIn the proposed amendment to the\
  \ LSA, the obligation to notify a vacancy or type of job under the aforementioned\
  \ provision of the LSA is abolished (the obligation of public announcement by the\
  \ institute will only apply to the public sector and companies majority-owned by\
  \ the State), but it should nevertheless be clarified from the point of view of\
  \ the current LSA that it is an obligation to, The only obligation arising from\
  \ the current system of employment and unemployment insurance is the notification\
  \ of a vacancy or type of job to the institution, which does not allow for the selection\
  \ of such notifications in order to determine the employer's actual intention, which,\
  \ in cases such as those referred to by the applicant, the employer is seeking to\
  \ achieve by means of a public announcement; even if the proposal were to be followed\
  \ and the employer were obliged to 'disclose his intentions' by the establishment\
  \ of the relevant sections, the practices described by employers could not be completely\
  \ prevented.\nWe are also reluctant to accept the proposal to create a single web\
  \ portal to allow transparent access to all publicly advertised vacancies, as this\
  \ is already largely possible under the current legislation. The majority of vacancies\
  \ are made public by the Institute at the request of employers and, as already mentioned,\
  \ under the proposed amendment to the TECL, this will become an obligation for the\
  \ public sector as a whole as well as for companies majority owned by the State.\n\
  \ "
response date: 2012-11-15
response due date: null
sent date: 2012-08-29
title: Recruitment/interviews/one-stop-shop
upvotes: 16
url: https://predlagam.vladi.si/predlog/3561
