Text file: 8205.txt
author: PredlagateljA
downvotes: 4
end consideration date: 2017-04-08
id: '8205'
number comments: 6
number views: 4757
proposal type: Competent authority response
response: "Response from the Ministry of Public Administration\nIn order to protect\
  \ the rights of civil servants, Article 149(2) of the Civil Servants Act (hereinafter\
  \ referred to as the 'CSA'; 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 No U-I-136/07-13 and\
  \ 40/12-ZUJF) restricts the transfer of a civil servant to a post so distant from\
  \ his/her place of work that it may cause him/her an excessive burden. Thus, a transfer\
  \ on grounds of professional need is permissible only if the place of employment\
  \ in the event of the transfer is not more than 70 km or more than one hour by public\
  \ transport from the place of employment at the time of the transfer.\nWith regard\
  \ to the specific proposal made by the applicant, it is further clarified that the\
  \ CEOS allows for individual issues to be regulated by collective agreement. Pursuant\
  \ to Article 22(8) of the LSU, individual issues may thus be regulated by collective\
  \ agreement. However, issues which are regulated by a collective agreement may not\
  \ be regulated in any other way by law, regulation or general act of the authority.\
  \ The provisions of Article 92 of the CEOS also refer to the relationship between\
  \ the law and collective agreements. It follows from that Article that a public\
  \ servant cannot be granted greater rights or more favourable working conditions\
  \ than those laid down in the labour law provisions and collective agreements, but\
  \ neither can he be granted fewer or less favourable ones.\nTherefore, in the case\
  \ of a transfer on grounds of work requirements, the provisions of the Collective\
  \ Agreement for Non-Economic Activities in the Republic of Slovenia (hereinafter\
  \ referred to as the CPEA; Official Gazette of the Republic of Slovenia, No 18/91-I,\
  \ 53/92, 13/93 - ZNOIP, 34/93, 12/94, 18/94 - ZRPJZ, 27/94, 59/94, 80/94, 64/95,\
  \ 19/97, 37/97, 87/97 - ZPSDP, 3/98, 3/98, 39/99 - ZMPUPR, 39/99, 40/99 - corrected)\
  \ must be taken into account, 99/01, 73/03, 77/04, 115/05, 43/06 - ZKolP, 71/06,\
  \ 138/06, 65/07, 67/07, 57/08 - KPJS, 67/08, 1/09, 2/10, 52/10, 2/11, 3/12, 40/12,\
  \ 1/13, 46/13, 95/14, 91/15 and 88/16) and not only the ZJU.\nThe provision of Article\
  \ 24 of the CPND governing the posting of workers reads as follows:\n\"(1) A worker\
  \ may be assigned to another institution, organisation or employer if this is necessary\
  \ for the smooth performance of his/her duties, namely:\n if the institution requires\
  \ a worker with a certain level of professional training, knowledge and ability\
  \ for the smooth running of its work, and another institution which employs a worker\
  \ who meets these conditions can ensure the performance of its tasks by organising\
  \ the work in a different way; if, as a result of a change in the organisation and\
  \ allocation of work, the worker's work is no longer required in the institution\
  \ in question, and there is a vacancy in the other institution which corresponds\
  \ to the worker's level of professional training, knowledge and ability.\".\n(2)\
  \ In the cases referred to in the preceding paragraph of this Article, the worker\
  \ shall enter into an employment relationship without publication. (3) The assignment\
  \ of a worker within the meaning of paragraph 1 of this Article shall be decided\
  \ by mutual agreement between the competent authorities of the institutions. (4)\
  \ A worker may not be assigned to another place without his consent:\n if the work\
  \ in another place would significantly impair the childcare and schooling facilities,\
  \ transport, housing and other living conditions of the worker and his family, or\
  \ if the assignment may have a significant impact on the worker's health, or if\
  \ the journey to and from work takes, in normal circumstances, more than two hours\
  \ by public transport, or more than one hour for a mother-worker with a child up\
  \ to the age of three years.\".\nSince the provisions of the CPPND, which lay down\
  \ restrictions on transfers of civil servants from one place to another, are more\
  \ favourable (broader) to them than those laid down in the ZJU, they should be taken\
  \ into account. The provisions of Article 24 of the CLA guarantee the protection\
  \ of a civil servant in the event of a transfer to a post in another place. Such\
  \ a transfer must not result in a substantial deterioration in the childcare and\
  \ schooling facilities, transport, housing and other living conditions of the staff\
  \ member and his family, nor must it result in a substantial deterioration in the\
  \ staff member's health. These two limitations are (alternatively) and to be determined\
  \ on a case-by-case basis. Under the third (alternative) restriction, it is unlawful\
  \ to transfer a staff member without his consent if the journey to and from work\
  \ takes more than two hours in normal circumstances by public transport, or more\
  \ than one hour for a mother of a staff member with a child under three years of\
  \ age. This limitation presupposes that the staff member's conditions are substantially\
  \ worsened if he spends more than two hours a day travelling to and from work.\n\
  The current provisions of Article 24 of the CLA provide for the protection of a\
  \ civil servant against such a transfer, which, because of the excessive distance\
  \ and time required to travel from his place of residence to his place of work,\
  \ could lead to a substantial deterioration in his living conditions (in particular\
  \ his family). The employer is also obliged to respect these restrictions. In determining\
  \ the time, account is taken not only of the time spent travelling by public transport,\
  \ but also of all the time taken to get to and from work, i.e. including the time\
  \ taken to travel from home or the place of work to the public transport, the time\
  \ spent waiting while changing buses, etc. The time taken to travel to and from\
  \ work must be taken into account. The journey to and from work includes all the\
  \ time spent, not just travelling by public transport.\nThe view that the provisions\
  \ of the CPPND, which lay down restrictions on transfers of civil servants from\
  \ one place to another, should be taken into account because they are more favourable\
  \ (broader) than those laid down in the ZJU, is also confirmed by case-law (e.g.\
  \ the judgment of the Supreme Court of the Republic of Slovenia VIII Ips 97/2008,\
  \ of 11 May 2009).\nIn the light of the above, in our view, it can be concluded,\
  \ in relation to the specific proposal of the petitioner, that there is no need\
  \ to amend the regulation in Article 149(2) of the ZJU, which refers to the restrictions\
  \ on the transfer of a civil servant for work-related reasons (whereby the distance\
  \ is also set at 70 km and not only one hour by public transport), and that further\
  \ consideration of the petitioner's proposal is not necessary.\n "
response date: 2017-05-23
response due date: null
sent date: 2017-03-10
title: Temporary transfer to another place of work 1 hour by public transport
upvotes: 12
url: https://predlagam.vladi.si/predlog/8205
