Text file: 7769.txt
author: dules
downvotes: 2
end consideration date: 2016-10-08
id: '7769'
number comments: 7
number views: 4258
proposal type: Competent authority response
response: "Response by the Ministry of Labour, Family, Social Affairs and Equal Opportunities\n\
  Analysis of the current regulation of the field The obligation to publicly announce\
  \ a vacancy or type of work at the Employment Service of the Republic of Slovenia\
  \ (hereinafter: the Service), as laid down in the Employment Act, is in accordance\
  \ with the provision of Article 25 of the ZDR-1, according to which an employer\
  \ who recruits new employees must publicly announce the vacancy or type of work;\
  \ according to Article 25(2) of the ZDR-1, an announcement by the Service is also\
  \ considered to be a public announcement. In this respect, the right to equal access\
  \ to every job under equal conditions constitutes an element of the constitutionally\
  \ protected freedom to work (Article 49 of the Constitution of the Republic of Slovenia),\
  \ and both constitutional provisions can be implemented only if the available jobs\
  \ are publicly advertised. In the light of the above, exceptions to the obligation\
  \ to publish may be provided for only by law (Article 26 of the ZDR-1).\nPursuant\
  \ to Article 7 of the Act on Labour Market Regulation - ZUTD (Official Gazette of\
  \ the Republic of Slovenia, No 80/10, 40/12 ZUJF, 21/13, 63/13, 100/13, 32/14 -\
  \ ZPDZC-1 and 47/15 - ZZSDT), at the request of the employer, the institution publicly\
  \ announces the vacancy or type of work and carries out all the necessary procedures\
  \ in connection with the placement of the job. The institute is not obliged to make\
  \ a public announcement of a vacancy or type of work which is not in accordance\
  \ with this Act, the regulations governing employment relations and the regulations\
  \ governing the prevention of undeclared work or employment, or in respect of which\
  \ there are circumstances indicating that it is not intended for recruitment to\
  \ the vacancy at the employer who proposed it.\nHowever, the Institute is obliged\
  \ to publicly announce each vacancy or type of job by public sector employers and\
  \ companies majority-owned by the State, except in cases of exceptions to the obligation\
  \ of public announcement provided for in the Labour Relations Act - ZDR-1 (Official\
  \ Journal of the Republic of Slovenia, No. 21/13, 78/13 - corrected, 47/15 - ZZSDT,\
  \ 33/16 - PZ-F and 52/16).\nThe purpose, content and manner of communicating information\
  \ on a vacancy or type of work to the Employment Service and the manner of public\
  \ announcement of a vacancy are regulated in more detail by the Regulation on the\
  \ manner of communicating information on a vacancy or type of work to the Employment\
  \ Service of the Republic of Slovenia, public announcement and the procedure of\
  \ job placement (Official Journal of the Republic of Slovenia, No. 59/13; hereinafter\
  \ referred to as the \"Regulation\"), which provides in Article 5 that the Employment\
  \ Service shall ensure the publication of a vacancy upon receipt of a communication\
  \ from the employer ordering the publication of a vacancy. Public publication is\
  \ defined as publication on the premises of the establishment and on the establishment's\
  \ website.\nThe vacancy notice shall contain the following information:\n the employer's\
  \ identity, the job description, the conditions of employment and the deadline for\
  \ applications and the manner in which candidates may apply.\nIf the employer wishes\
  \ to forward candidates, the posting may also contain the following information:\n\
  \ a description of how the job applicants will be referred, additional information\
  \ about the vacancy, other information related to the referral process.\nThe Institute\
  \ may refuse to publicise a vacancy if it is not in accordance with the provisions\
  \ on the regulation of the labour market, labour relations or the prevention of\
  \ undeclared work and employment, or if it establishes the existence of circumstances\
  \ which show that it is not intended for employment with the employer who proposed\
  \ it, in particular in cases where:\n1. the vacancy notice or the conditions of\
  \ employment show that:\n manifest unequal treatment of candidates on grounds of\
  \ personal circumstances, in accordance with the law governing employment relationships,\
  \ that the public advertisement is not intended to attract candidates for the purpose\
  \ of entering into an employment relationship, but for the purpose of working under\
  \ a subcontract or other contract governed by civil law, the registration of a sole\
  \ proprietorship or another form of work, that the work relates to an activity for\
  \ which the employer is not duly registered, the need to employ a worker whose work\
  \ would be supplied by the employer to another user, even though the employer is\
  \ not registered in the register of employers supplying workers to another employer;\
  \ \n2. on the basis of recruitment monitoring data and procedures for the placement\
  \ of vacancies, it is established that the employer is not actually looking for\
  \ workers to recruit by advertising vacancies, but is actually looking to offer\
  \ to provide a service to registered candidates or to collect their data with a\
  \ view to its further use;\n3. on the basis of information from the Financial Administration\
  \ of the Republic of Slovenia, the employer fails to pay wages and social security\
  \ contributions;\n4. on the basis of information from the Labour Inspectorate of\
  \ the Republic of Slovenia, an employee's complaint or a court decision, the employer\
  \ is found not to be in compliance with labour law, i.e. if it dismisses employees\
  \ in contravention of the regulations or grossly violates employees' rights at work,\
  \ for which reason it is kept in the register of employers with negative references.\n\
  The employer shall be informed in writing by the Employment Agency of the refusal\
  \ to publish.\n Analysis of the proposal and reasons for its (in)appropriateness\
  \ The waiver of the obligation to publish vacancies is, in the light of the above-mentioned\
  \ constitutional provision establishing one of the human rights and fundamental\
  \ freedoms, possible only in exceptional cases provided for in the ZDR-1. Given\
  \ that free choice of employment and equal access to a job are human rights enshrined\
  \ in the Constitution of the Republic of Slovenia, there can be no derogation from\
  \ the established rules in the ZDR-1 concerning the obligation to publicise a vacancy\
  \ or type of job.\nThe fundamental obligation of any employer who has a vacancy\
  \ and wishes to recruit a worker to fill it is therefore to advertise the vacancy\
  \ publicly in order to make the possibility of recruitment or of performing work\
  \ known to the widest possible range of potential candidates for the vacancy or\
  \ for the performance of the work in question. However, the Institute acts only\
  \ as an intermediary in the public advertising of vacancies, and its obligations\
  \ under this title are imposed only in relation to the referral of unemployed persons\
  \ to the advertised vacancies. In the context of the public advertising of vacancies,\
  \ the selection of public announcements by the Institute in order to ascertain the\
  \ employer's actual intention in publishing the vacancy (i.e. whether the employer\
  \ has already selected a candidate to fill a particular vacancy and carries it out\
  \ only in order to satisfy the legal requirement to fulfil the obligation to publish\
  \ publicly, or whether it carries out a public announcement in order to meet the\
  \ actual need to select a suitable candidate to fill the vacancy), is not possible,\
  \ Therefore, in our opinion, the problem raised cannot be resolved by modifying\
  \ the very institution of public advertising of a vacancy or type of job, in connection\
  \ with the possibility (private employers) or obligation (public sector and companies\
  \ majority-owned by the State) to carry out public advertising through an institute.\n\
  In the light of the above, and given that the applicant raises the issue of pre-filled\
  \ posts in particular in relation to the public advertising of vacancies in the\
  \ public sector, we would like to clarify that, pursuant to Article 58(1) of the\
  \ Civil Servants Act (Official Gazette of the Republic of Slovenia, No. 63/07 -\
  \ Official consolidated text, 65/08, 69/08 - ZTFI-A, 69/08 - ZZavar-E and 40/12\
  \ - ZUJF)), the public competition for civil service bodies is published on the\
  \ website of the Ministry responsible for administration, while other state bodies\
  \ and local authorities publish the public competition on their websites. The competition\
  \ may also be published in the Official Gazette of the Republic of Slovenia or in\
  \ a daily newspaper. Furthermore, Articles 59 to 65 of the CEOS also lay down the\
  \ content of the publication of the open competition, the rules for its conduct,\
  \ the selection procedure, the selection of the candidate, the decision on the selection\
  \ (selection decision), the rules for the special open competition, and the rights\
  \ of the unsuccessful candidate. In the light of the above, we consider that it\
  \ would be more appropriate to deal with the described problem in the framework\
  \ of a systemic regulation (i.e. the ZJU) and on this basis to develop appropriate\
  \ levers for more effective limitation of the cases of 'already filled in advance'\
  \ vacancies, and we therefore suggest that the petitioner also address its proposals\
  \ to the Ministry of Public Administration, as the promoter of the above mentioned\
  \ regulation.\n  Response from the Ministry of Public Administration\nWe have received\
  \ for comment via the predlagam.vladi.si portal Proposal No 7769-254, which concerns\
  \ a proposed amendment to the legislation in the field of the publication of vacancies\
  \ at the Employment Service of the Republic of Slovenia (ZRSZ). The proposer points\
  \ out that there are many vacancies in the public administration in general that\
  \ are \"already filled in advance\" and proposes that the Labour Relations Act be\
  \ amended so that in such cases the employer no longer needs to publish the vacancy,\
  \ but simply informs the ZRSZ that the position is filled, thus saving the applicants\
  \ a great deal of time and money. The Ministry of Labour, Family, Social Affairs\
  \ and Equal Opportunities has already responded to the proposal within its competence,\
  \ and below we provide a response from our field of work or staff legislation.\n\
  We would like to start by explaining that, as regards the legal bases governing\
  \ the employment relationships of civil servants in the public sector, two systemic\
  \ laws in particular must be taken into account, namely the Law on Civil Servants\
  \ (hereinafter referred to as the Law on Civil Servants; Official Journal of the\
  \ RS No. 63/07 - Official consolidated text, 65/08, 69/08-ZTFI-A, 69/08-ZZavar-E,\
  \ 74/09 US Decree U-I-136/07-13 and 40/12-ZUJF), which regulates employment relations\
  \ in state bodies and local government administrations, and the Labour Relations\
  \ Act (hereinafter referred to as the \"LRA-1\"; Official Journal of the RS, No.\
  \ 21/13, 78/13 - corrected, 47/15 - ZZSDT, 33/16 - PZ-F and 52/16), which regulates\
  \ employment relations in other public sector entities (these are, pursuant to Article\
  \ 1 of the ZJU, public agencies, public funds, public institutions and public economic\
  \ institutions and other public law entities, if they are indirect users of the\
  \ State budget or the budget of a local community). Pursuant to Article 5(5) of\
  \ the ZJU, the ZDR-1 applies to the employment relationships of public servants\
  \ and to the rights and obligations arising from the employment relationship in\
  \ respect of all those matters not otherwise regulated by the ZJU or by another\
  \ special law. In the light of the above, it should therefore be borne in mind in\
  \ the context of the proposal that the ZJU applies to civil servants of public institutions\
  \ only up to Article 21 and that their employment relationships are governed by\
  \ the ZDR-1 - in fact, in the letter, the proposer refers to the University Clinical\
  \ Centre Ljubljana, which is a public health institution, as an example.\nFurthermore,\
  \ it should be borne in mind that the ZJU divides civil servants into officials\
  \ and technical and professional civil servants, depending on the content or nature\
  \ of the tasks they perform. The recruitment of civil servants and the recruitment\
  \ of technical and professional civil servants in State and local authority administrations\
  \ follow two procedures. Pursuant to Article 57(7) of the Staff Regulations, the\
  \ procedure for the recruitment of a new official is carried out as a public competition,\
  \ while the procedure for the recruitment of a new professional-technical post is\
  \ carried out in accordance with the procedure laid down in the rules governing\
  \ employment relations (ZDR-1) and in the collective agreement. The procedure for\
  \ new recruitment to a technical and professional post in the State and local authorities\
  \ is therefore carried out in accordance with the provisions of the ZDR-1, as is\
  \ the case for all other civil servants in the rest of the public sector (e.g. public\
  \ agencies, public funds, public institutions, etc.).\nWe would like to reiterate\
  \ that the ZJU and the public competition procedure apply only to civil servants\
  \ in State and local government administrations, while professional-technical civil\
  \ servants in State and local government administrations, as well as all other civil\
  \ servants in the public sector, are subject to the obligation to advertise a vacancy\
  \ under the ZDR-1. The provisions of the ZJU, ZDR-1 and the Labour Market Act (Official\
  \ Journal of the Republic of Slovenia, No 80/10, 40/12 - ZUJF, 21/13, 63/13, 100/13,\
  \ 32/14 - ZPDZC-1 and 47/15 - ZZSDT) dictate that the vacancy must be published\
  \ on the authorities' websites as well as on the ZRSZ, or in the Official Gazette\
  \ of the Republic of Slovenia or in a daily newspaper.\nThe current legal regime\
  \ is based on the Constitution of the Republic of Slovenia (hereinafter referred\
  \ to as the Constitution; Official Journal of the Republic of Slovenia, No 33/91-I,\
  \ 42/97 - UZS68, 66/00 - UZ80, 24/03 - UZ3a, 47, 68, 69/04 - UZ14, 69/04 - UZ43,\
  \ 69/04 - UZ50, 68/06 - UZ121,140,143, 47/13 - UZ148 and 47/13 - UZ90,97,99), which,\
  \ in Article 122, paragraph 1, of the Constitution of the Republic of Slovenia (hereinafter\
  \ referred to as the Constitution). Article 122 (employment in the administrative\
  \ services) stipulates that employment in the administrative services may be recruited\
  \ only on the basis of a public competition, except in the cases provided for by\
  \ law. It follows from this provision that recruitment to the administrative service\
  \ is subject to a public competition. This has two purposes: firstly, to enable\
  \ all candidates to have access to the post on equal terms (without giving undue\
  \ preference to any particular candidate) and, secondly, to ensure that the most\
  \ suitable candidate is selected. The aim of publishing a competition is to select\
  \ the candidate who is the most suitable in terms of his/her professional qualifications\
  \ or the candidate who will make the greatest contribution to the efficient and\
  \ effective work of the Authority. Furthermore, the current rules, also based on\
  \ the constitutional principle of equality (Article 14 of the Constitution) and\
  \ the principle of freedom to work (Article 49(3) of the Constitution), do not allow\
  \ certain entities to have access to the work or to the vacant posts under different\
  \ or more favourable conditions. It is not possible to determine in advance that\
  \ certain individuals or groups have a preferential right to employment.\nIn the\
  \ light of the above-mentioned constitutional rights, we therefore consider that\
  \ the current legal framework, in so far as it relates to the obligation to publish\
  \ a public competition or to publish a vacancy, cannot be amended or deleted. The\
  \ Ministry of Public Administration is aware of the importance of a legal and fair\
  \ procedure prior to new recruitment and has therefore already included amendments\
  \ and additions to the law in the context of the preparation of the amendments to\
  \ the civil service system or the proposal for a new Civil Servants Act, in order\
  \ to ensure a uniform system of recruitment planning in the civil service and also\
  \ to simplify the process of new recruitment, However, the fundamental principle\
  \ that equal access to public sector jobs is guaranteed to everyone, under equal\
  \ conditions, and that the criterion of professional qualifications is the main\
  \ guiding principle for the selection of candidates remains unchanged.\n "
response date: 2016-11-29
response due date: null
sent date: 2016-09-09
title: Posting a vacancy on the ZRSZ
upvotes: 22
url: https://predlagam.vladi.si/predlog/7769
