Area: Delovno pravno
Competent authority: MDDSZ
EZU URL: .nan
Initiative ID: 1108
Initiative accepted and completed: '2021-02-09'
Initiative classified in EZU: .nan
Initiative forwarded in response: '2021-01-26'
Initiative published: '2021-01-26'
Initiative submitted: '2021-01-26'
Response from the competent authority: Reply from the Ministry of Labour, Family,
  Social Affairs and Equal Opportunities:We would like to thank you for the proposal
  and would like to provide the following clarification from the point of view of
  pension and invalidity insurance:The Ministry of Labour, Family, Social Affairs
  and Equal Opportunities (MLFSA), at the time of drafting the current legislation,
  was already examining the possibility of, or the appropriateness of, a condition
  of employer's consent for the granting of the right to the so-called dual status
  or the payment of a 40% old-age pension. From a technical point of view, the Ministry
  had already concluded at that time that it was not appropriate to impose either
  a condition of termination of employment or a condition of employer's consent. In
  our view, such a measure would have negative substantive consequences (in particular,
  the potential for abuse, uncertainty for workers as to the possibility of exercising
  their rights, prior unpredictability of the beneficiaries of the payment, linking
  the granting of consent to other conditions of employment, etc.). Providing for
  the termination of the employment relationship or for the employer's consent to
  the continuation of employment or to the receipt of a part of the pension pursues
  the same objectives - i.e. to preserve the employer's employment only for those
  workers whom the employer judges to be in need of it. It is therefore necessary
  to deduce from the objective to be pursued by the imposition of this condition whether
  the imposition of one of these conditions would be appropriate for the attainment
  of the objective, strictly necessary for the attainment of the objective and, last
  but not least, whether it would be a proportionate measure.It should be clarified
  that pension and invalidity insurance is a compulsory statutory insurance, which
  covers, inter alia, workers on the basis of an employment relationship. They therefore
  have a legitimate expectation that, if they pay the contributions, they will in
  fact receive the right or benefit, subject to the fulfilment of the other conditions
  laid down in the law, which must be reasonable and objective. It is compulsory insurance,
  which covers the insured person, in this case the worker, i.e. insurance of the
  worker and not, possibly, of the employer.4Article 9 of the Law on Pension and Disability
  Insurance (Official Gazette of the RS, No. 96/12, 39/13, 99/13 - ZSVarPre-C, 101/13
  - ZIPRS1415, 44/14 - ORZPIZ206, 85/14 - ZUJF-B, 95/14 - ZUJF-C, 90/15 - ZIUPTD,
  102/15, 23/17, 40/17, 65/17, 28/19, 139/20 and 189/20 - ZFRO, hereinafter referred
  to as ZPIZ-2) provides, that compulsory insurance rights are inalienable personal
  rights which cannot be transferred to another person and cannot be inherited, with
  the exception of sums of money due which have not been paid until the death of the
  beneficiary. Nor shall rights under compulsory insurance be time-barred, with the
  exception of accrued unpaid amounts of pensions and other benefits in the cases
  provided for in this Law, which may not be withdrawn, reduced or limited, except
  as provided by law. The nature of these rights means that they may be exercised
  only by the insured person and not, possibly, by his employer or any other person.
  In our view, to provide for the employer's consent to the payment of part of the
  pension would interfere to a greater extent with the very nature of these rights
  and would make their recognition subject to a condition which is unrelated to the
  insurance obligation and which, as a rule, is beyond the control of the insured
  person himself. Although two insured persons could be insured against the same risk
  and satisfy all the other conditions in the same way, one of them could be granted
  the right and the other could not, subject to a condition beyond his or her control.
  Such an arrangement would therefore be contrary to the nature of pension and invalidity
  insurance rights, and we do not consider that there are even compelling reasons
  for such an arrangement which could be taken into account in a constitutionally
  compatible way in the context of pension insurance. The measures we have introduced
  over the years to raise the effective retirement age must be applied equally to
  all and, above all, it is in the interests of the pension system that all those
  who are willing and able to do so should extend their working lives on a voluntary
  basis. This will also go some way to avoiding an immediate increase in the statutory
  retirement age, which would require all insured persons to extend their activity,
  not just those who wish to do so.From the point of view of pension insurance, we
  do not believe that there are any reasons why a condition of employer consent for
  the award of part of a pension would be more appropriate, or more suitable, than
  making the termination of the contract of employment a condition of the contract
  of employment. Both conditions pursue the same objective - that is to say, the employer's
  influence on which insured persons may or may not receive a benefit from the insurance
  scheme, depending on which employees the employer deems necessary in the course
  of his work and which he does not. The Ministry assumes that all workers are good
  workers and are and will continue to be needed in the work process due to the upcoming
  demographic challenges in the Republic of Slovenia. The fact that a worker has fulfilled
  the statutory conditions for retirement does not directly affect the actual working
  capacity of the insured person. Simply because such a worker has fulfilled the conditions
  for retirement, his or her work will not (at least as a rule) become more or less
  important, or more or less efficient, from one day to the next. For the employer,
  therefore, the fact that someone has fulfilled the conditions for retirement has
  no impact (the worker may or may not have fulfilled his obligations beforehand,
  and the same is true once the conditions have been fulfilled). The Ministry therefore
  considers it appropriate and, in the context of pension insurance, correct that
  rights should be granted on the basis of prior service and in relation to the extent
  of participation and the length of activity, i.e. in relation to the criteria on
  which compulsory insurance is based and which are a condition for the granting of
  rights and which are, last but not least, objective, verifiable and in relation
  to which insured persons form expectations based on criteria and reasons known in
  advance - i.e. in relation to the conditions which, last but not least, guarantee
  legal certainty to the insured persons.We are aware that, in practice, there are
  cases where some workers are either unable or simply do not have the desire to do
  the work or achieve the results required of them by the employment contract in force,
  but that this is an issue that should be, and ultimately is, regulated in the context
  of the legislation governing employment relationships. In the Ministry's view, the
  latter cannot be a decisive differentiating element for granting a person a right
  under the compulsory pension scheme and denying a right to another person under
  the same conditions.In the light of the foregoing, we conclude that it is not appropriate
  to make the granting of compulsory insurance rights dependent on the subjective
  decision of the employer or the status of the employer, nor, in the light of the
  legislation in force, can it be said that the objective pursued by such a regulation
  is attainable, cannot already be achieved on the basis of the legislation in force
  and by means of measures which, in the opinion of the Ministry, are more appropriate
  and also more proportionate (termination of the employment contract on the basis
  of the labour law if the conditions for such termination are met and proven) and
  which are not linked to the employer's status or to the employer's subjective discretion.
  In accordance with the current systemic legislation, part of the pension is linked
  to the actual performance of the worker, and prolonged absences from work of more
  than 30 days will not be encouraged, as the payment of part of the pension will
  be stopped in this case.We therefore believe that the status of a worker or his
  or her opinion as to whether or not he or she is needed should not have a decisive
  influence on the granting of pension rights, but that rights should be granted on
  the basis of previous insurance and other conditions laid down by law and determined
  objectively (renewal of insurance, fulfilment of the conditions for old-age retirement,
  continued full-time compulsory insurance).We also clarify that, in the event of
  a situation where the employer finds that an employee is not performing as expected
  because he or she is not performing the work in a timely, professional and quality
  manner, or does not fulfil the conditions for performing the work laid down by laws
  and regulations issued pursuant to the law, and as a result of which the employee
  does not or cannot fulfil the contractual or other obligations arising from the
  employment relationship, the employer has the option, under the applicable legislation,
  to terminate the employee's employment contract on the grounds of incompetence.Therefore,
  where an employer does not wish to maintain an employment relationship with a worker
  whom it considers to be underperforming, the applicable labour law already gives
  the employer the option of terminating the employment contract of such a worker.
  In any event, the reason for termination must be serious and justified, and the
  ground of incapacity to perform may relate to either a subjective (lack of the ability
  or qualities required to perform the tasks, leading to unsatisfactory performance
  or failure to achieve the expected results) or an objective component (where the
  worker does not fulfil the prescribed conditions for the job laid down by law or
  by executive regulations issued pursuant to law, and is therefore unable to fulfil
  the contractual or other obligations arising out of the employment relationship)
  of the worker's incapacity to perform the work.Notwithstanding the above, we would
  like to clarify that the Law on Intervention Measures to Help Mitigate the Consequences
  of the Second Wave of the COVID-19 Epidemic (ZIUPOPDVE) is in force, which, in Articles
  21 and 22, provides for the possibility of terminating the employment contract of
  workers who meet the conditions for retirement under Article 27(1) and (4) of the
  Law on Social Insurance and Social Security (ZPIZ-2). It is therefore reasonable
  that this law establishes the solutions proposed by the petitioner, which have already
  entered into force.
Text file: 1108.txt
Title: (NO) retirement of workers on fulfilment of the conditions for retirement
URL: https://www.stopbirokraciji.gov.si/pobuda/?st=1108
