Area: Delovno pravno
Competent authority: MNZ
EZU URL: .nan
Initiative ID: 238
Initiative accepted and completed: '2013-12-24'
Initiative classified in EZU: .nan
Initiative forwarded in response: '2013-11-08'
Initiative published: '2013-11-08'
Initiative submitted: '2013-11-02'
Response from the competent authority: "Reply from the Ministry of Labour, Family,\
  \ Social Affairs and Equal Opportunities and the Ministry of the Interior:1. The\
  \ Act on Occupational Safety and Health (Official Gazette of the Republic of Slovenia,\
  \ No 43/11) (hereinafter: the Act) defines in Article 55 that a self-employed person\
  \ is a person who carries out a gainful or other occupational activity as his/her\
  \ sole or main occupation, but who does not employ other workers and does not involve\
  \ other persons in the work process (hereinafter: a self-employed person). Therefore,\
  \ if a micro-enterprise employs only the owner of the enterprise, who does not employ\
  \ other workers and does not involve other persons in the work process, this owner\
  \ of the enterprise is considered to be self-employed under the law.\r\n The self-employed\
  \ person must assess the risks. If he/she finds that there are risks of accidents,\
  \ occupational diseases and work-related illnesses, he/she must draw up a written\
  \ safety statement with a risk assessment and set out the measures to be taken to\
  \ ensure safety and health at work. A self-employed person must use work equipment\
  \ and personal protective equipment appropriate to the risks at work and to the\
  \ prescribed safety and health requirements.\r\n The law does not explicitly provide\
  \ that the self-employed person must ensure periodic inspections and tests of work\
  \ equipment (e.g. machinery), which must not exceed 36 months. However, these inspections\
  \ and tests are one of the measures to ensure the safety and health of the self-employed\
  \ person if the self-employed person, through a risk assessment, identifies that\
  \ he/she uses work equipment in his/her work which needs to be regularly inspected\
  \ and tested for proper maintenance. The scope of inspections and tests of work\
  \ equipment varies considerably depending on the complexity of the work equipment\
  \ and the risks to occupational safety and health.\r\n The law provides, inter alia,\
  \ that a natural person who, with the members of his household or family, carries\
  \ on a gainful or other occupation is to be regarded as an employer.\r\n Under Article\
  \ 5 of the Act, the employer must ensure the safety and health of workers at work.\
  \ To this end, it must take the measures necessary to ensure the safety and health\
  \ of workers and other persons present at work, including the prevention, elimination\
  \ and control of occupational hazards, the information and training of workers,\
  \ with appropriate organisation and the necessary material resources. A safety declaration\
  \ with risk assessment is one of the most important tools employers have to ensure\
  \ the safety and health at work of workers and other persons present at work (including\
  \ family members). In this risk assessment safety statement, the employer identifies\
  \ or detects hazards, determines which workers (or other persons) may be exposed\
  \ to the identified hazards, assesses the risks, taking into account the likelihood\
  \ of work-related accidents, occupational diseases or illnesses and the severity\
  \ of their consequences, decides whether the risk is acceptable and decides on the\
  \ measures to be taken to reduce the unacceptable risk. The employer must carry\
  \ out all the steps of the risk assessment and draw up a Safety Statement, even\
  \ if only members of his family work for him. When dealing with the work process\
  \ and the work tasks carried out in his undertaking, the employer must also take\
  \ into account, among other things, certain age limits for the persons carrying\
  \ out certain work for him. The Ministry of Labour, Family, Social Affairs and Equal\
  \ Opportunities considers that there should be no relaxation of the requirements\
  \ and responsibilities for occupational safety and health for an employer whose\
  \ work is carried out only by members of the employer's family. We cannot and should\
  \ not rely on the owner of the company to take care of the occupational safety and\
  \ health of his relatives anyway. After all, by properly drawing up a Safety Statement\
  \ with a risk assessment, he or she will familiarise himself or herself in detail\
  \ with the hazards and risks that could endanger the safety and health of his or\
  \ her relatives and take the appropriate measures.PARTIALLY IMPLEMENTED PROMPT:In\
  \ the framework of the OiRA project, the Ministry of Labour, Family, Social Affairs\
  \ and Equal Opportunities, together with the social partners, developed in November\
  \ 2014 a free web-based tool for assessing occupational health and safety risks\
  \ for micro- and small enterprises. Individual tools are already available for work\
  \ in hairdressing, carpentry, road transport and office work, and tools for assessing\
  \ risks in commercial cleaning and construction are in the pipeline. The online\
  \ tools are aimed primarily at micro and small employers, who can easily and free\
  \ of charge make an assessment, and workers can also participate in the risk assessment.\
  \ The tool also provides the employer with concrete measures to improve health and\
  \ safety at work.2. Cash management (reply from the Ministry of the Interior)On\
  \ the basis of the simplification of the Law on Payment Traffic /ZPlaP-UPB3/, Official\
  \ Gazette of the Republic of Slovenia, No 110/2006 and the Regulation on amendments\
  \ to the Regulation on Cash Payments and Cash Maximum, Official Gazette of the Republic\
  \ of Slovenia, No 141/2006, the measure Abolition of the mandatory deposit of cash\
  \ in the transaction accounts of private individuals was implemented. Based on the\
  \ Uniform Methodology for Cost Measurement and assuming that all private individuals\
  \ would deposit both coins and banknotes in their transaction account 5 days a week,\
  \ the savings could amount to \u20AC144 million per year.3Work of a co-owner of\
  \ a micro-company with no employees after retirement (reply of the Ministry of Labour\
  \ and Social Affairs)The content of the response to the initiative has been prepared\
  \ on the basis of written and oral submissions from some other state authorities,\
  \ which we have included in the text, and after examining the initiative in the\
  \ light of the provisions of the Act on the Prevention of Undeclared Work (Official\
  \ Gazette of the Republic of Lithuania, No.The reply also contains a non-binding\
  \ interpretation of the provisions of the law, as the Ministry or other bodies as\
  \ administrative authorities are not competent to give an authoritative interpretation\
  \ of the provisions of the law.\r\nBy way of introduction, we would like to clarify\
  \ that, in our view, the status of a farmer and the status of an owner of a micro-enterprise\
  \ without employees after retirement cannot be easily compared in the manner set\
  \ out in the petition or proposal.\r\n A farm as an agricultural holding with all\
  \ its movable and immovable assets is defined in the Agriculture Act. This is the\
  \ overarching or general law in the field of agriculture. In addition to this law,\
  \ other specific substantive laws are relevant, such as the Agricultural Land Act,\
  \ the Forest Act, etc..\r\n If we compare an agricultural holding with a micro-economic\
  \ company, which is regulated in accordance with the Companies Act, we can see that\
  \ in both cases it is the management of an asset. However, for a farmer after retirement,\
  \ it can be seen that, whatever his status, he must continue to manage the agricultural\
  \ holding even after retirement. Therefore, even if the farm is taken over by a\
  \ young person or if there is some other form of legal succession, the special rules\
  \ governing agriculture must be complied with. The holding must be looked after\
  \ in such a way that the farmland is not overgrown or degraded, the maintenance\
  \ and care of forests, the harvesting of timber, the health of animals and plants,\
  \ the observance of good agricultural practice, and so on.\r\n This means that the\
  \ agricultural sector, as one of the specific sectors of the economy, is subject\
  \ to a specific public law regime, as it is a strong public interest, reflected\
  \ in the concern for the sustainable management of natural resources such as land,\
  \ water, timber, air and other public goods.\r\n In the field of companies and the\
  \ people who work for them, contractual autonomy of the parties applies under general\
  \ rules of contract. This means that parties freely enter into various civil law\
  \ relationships in a purely private interest, except where the law provides otherwise\
  \ by mandatory decree.\r\n The Companies Act (65/09 - Official Consolidated Text,\
  \ 33/11, 91/11, 32/12, 57/12, 44/13 - US Decision and 82/13, hereinafter: ZGD-1)\
  \ lays down the basic corporate status rules for the establishment, operation and\
  \ transformation of companies, partnerships, associated persons, GIZs, branches\
  \ of foreign companies.\r\n On the other hand, the provisions governing the establishment\
  \ and operation of a limited liability company do not regulate issues related to\
  \ the legal-formal regulation of the relationship between the company and the manager,\
  \ which could lead to the conclusion that the conclusion of a contract is not a\
  \ condition for the performance of the managerial function. The latter is left to\
  \ the parties (the fundamental characteristics of contractual relations are precisely\
  \ the principle of equality of the parties to contractual relations and the freedom\
  \ to decide on the conclusion of contracts or the autonomy of the will of the parties).\
  \ We would, however, like to draw attention to the provision in Article 5 of the\
  \ Act on the Prevention of Illegal Labour and Employment (Official Gazette of the\
  \ Republic of Slovenia, No. 1, item 5, as amended). 12/07 - Official consolidated\
  \ text, 29/10, 57/12 and 21/13-ZUTD-A), which stipulates that it is prohibited to\
  \ engage in undeclared work if a legal person or an entrepreneur who fulfils the\
  \ conditions for carrying out an activity has not concluded an employment contract\
  \ or a civil law contract with a worker, on the basis of which work may be performed,\
  \ and has not registered the worker for health insurance, pension insurance and\
  \ invalidity insurance. If an unemployed person is employed illegally, it shall\
  \ be presumed that he or she has an employment relationship of indefinite duration.\r\
  \n The company and the manager usually have an employment contract or a civil law\
  \ management contract.\r\n In the case of a civil law management contract where\
  \ the manager is not in an employment relationship, the provisions of the Code of\
  \ Obligations (Official Journal of the Republic of Slovenia, No 97/07 - Official\
  \ Consolidated Text, hereinafter referred to as \"the CC\") on labour contracts\
  \ - subcontracts or mandate contracts - contracts of mandate apply to the management\
  \ contract. The main difference between these two contracts is in terms of the subject-matter\
  \ of the contractor's obligations. In a contract of engagement, the person taking\
  \ over the contract (the manager) undertakes to the principal (the company) to perform\
  \ certain tasks for the latter in accordance with the instructions received as a\
  \ good businessman (duty of endeavour). In return, the person taking over the contract\
  \ (the manager) is entitled to remuneration for his efforts, unless otherwise agreed\
  \ or unless the nature of the mutual relationship implies otherwise. On the other\
  \ hand, in a contract of employment, the subcontractor undertakes to perform a specific\
  \ task, such as the making or repairing of an object, some physical or mental work,\
  \ etc., and the principal undertakes to pay him for it (payment for the result)\
  \ (obligation of result).\r\n In a one-person limited liability company, one person\
  \ usually performs all the proprietary management and managerial functions. It is\
  \ the sole member who alone takes all the decisions that would otherwise be taken\
  \ by the members in general meeting and otherwise. A sole proprietorship must also\
  \ have a manager. This may be the sole member or any other person.\r\n On the basis\
  \ of the above, the legal status of a retired farmer is not comparable to that of\
  \ a retired company director. This special regime is also reflected in the area\
  \ of pension and invalidity legislation.\r\n From the point of view of the pension\
  \ system, it should be pointed out that a person who is both the founder or shareholder\
  \ of a company and the manager of that company must take out compulsory pension\
  \ and invalidity insurance. In the event that he does not have an employment contract\
  \ with another employer or with himself (last amendment to the ZDR), he must pay\
  \ the full contributions and not a lump sum.\r\n The minimum base will be 90% of\
  \ the average annual salary after the end of the transitional period.\r\n This provision\
  \ will apply from 01.01.2014. However, during the transitional period the following\
  \ contribution bases will apply:\r\n- in 2013: the minimum pension base (in accordance\
  \ with Article 429 of the Social Insurance Act-1)\r\n- in 2014: the minimum wage\r\
  \n- in 2015: 65% of the PP\r\n- in 2016: 70% of the PP\r\n- in 2017: 75% of the\
  \ PP\r\n- in 2018: 80% of PP\r\n- in 2019: 85% of PP\r\n- 2020: 90% PP\r\n It follows\
  \ from the above that a person who is both a manager and a partner in a company\
  \ is liable to pay contributions, irrespective of the fact that he or she is working\
  \ for free.\r\n Your suggestion that the owner of a company should also be allowed\
  \ to work for a short period in his own company without employees after retirement\
  \ is, in our view, inappropriate on the basis of the facts set out above. Short-term\
  \ work is also limited to 40 hours per month and is intended only for occasional\
  \ special situations where the help of immediate family members is needed. However,\
  \ the keeping of records, signed by the owner of the company as employer on the\
  \ one hand and as employee on the other, has a purpose - it enables the supervisory\
  \ authorities to monitor the implementation of the provisions on short-term work,\
  \ in particular the monthly hourly limit for that work. Finally, we would like to\
  \ stress that the short-term work institute is an exception to undeclared work."
Text file: 238.txt
Title: Equalisation of obligations under the ZVZD between the self-employed and micro-companies
  without employees, possibility for a retired company owner to work for a short period
  in his own company (equalisation with a farmer), simplification of treasury operations
URL: https://www.stopbirokraciji.gov.si/pobuda/?st=238
