Area: Delovno pravno
Competent authority: MDDSZ, MGRT
EZU URL: .nan
Initiative ID: 577
Initiative accepted and completed: '2015-07-23'
Initiative classified in EZU: .nan
Initiative forwarded in response: '2015-05-29'
Initiative published: '2015-05-29'
Initiative submitted: '2015-05-23'
Response from the competent authority: "Reply from the Ministry of Labour, Family,\
  \ Social Affairs and Equal Opportunities:Analysis of the current situation:\r\n\
  The provision of labour to the user is regulated by the Labour Market Act (Official\
  \ Gazette of the Republic of Slovenia, No. 80/10, 40/12-ZUJF, 21/13, 63/13-ZIUPTDSV,\
  \ 63/13, 100/13 and 32/14 - ZPDZC-1; hereinafter: ZUTD) and the Labour Relations\
  \ Act (Official Gazette of the Republic of Slovenia, No. 21/13, 63/13-ZIUPTDSV,\
  \ 63/13, 100/13 and 32/14 - ZPDZC-1; hereinafter: ZUTD). These provisions transposed\
  \ Directive 2008/104/EC of the European Parliament and of the Council of 19 January\
  \ 2008 on the Employment Relationship and Labour Code (OJ L 162, 19.10.2008, p.\
  \ 1) into the Slovenian legal order. The ZUTD regulates the activity of providing\
  \ workers with work in the provisions of Articles 163 to 179a, while the ZDR-1 (Articles\
  \ 59 to 63) regulates the employment contract between the worker and the employer\
  \ carrying out the activity of providing workers to the user, as well as the relationship\
  \ between the employer providing the work, the user and the posted worker.\r\nThis\
  \ is an activity which may be carried out by an employer who has obtained a licence\
  \ to carry out the activity of providing workers to a user and who is entered in\
  \ the register of domestic legal and natural persons for the activity of providing\
  \ workers to a user or in the register of foreign legal and natural persons for\
  \ the activity of providing workers to a user. An employer may obtain a licence\
  \ to carry on the activity in question if:\r\n- it has not been fined for infringement\
  \ of the regulations governing labour relations, employment and work of foreign\
  \ nationals, occupational safety and health, undeclared work and the labour market\
  \ within the last two years;\r\n- has no outstanding pay arrears for work during\
  \ the last two years;\r\n- has not been published in the list of taxpayers with\
  \ outstanding unpaid tax liabilities and in the list of non-returners published\
  \ by the Tax Administration of the Republic of Slovenia and the Customs Administration\
  \ of the Republic of Slovenia during the last two years and has no outstanding outstanding\
  \ tax liabilities at the date of application;\r\n- it meets the staff, organisational,\
  \ spatial and other conditions laid down in more detail by the Minister responsible\
  \ for labour;\r\n- has as its main activity the registered activity of temporary\
  \ labour brokerage;\r\n- provide a bank guarantee of at least EUR 30 000;\r\n- a\
  \ legal or natural person established in another EU Member State, the EEA or the\
  \ Swiss Confederation has established a branch in the territory of the Republic\
  \ of Slovenia.\r\nThe conditions referred to in the fourth indent are set out in\
  \ detail in the Rules on the Provision of Work to Users (Official Journal of the\
  \ Republic of Slovenia, No 15/14).\r\nAn employer who carries out the activity of\
  \ providing workers to a user (hereinafter referred to as the employer providing\
  \ the work) shall recruit the worker and then assign him to work for the user.\r\
  \nThe provisions of the LSA provide that the employer has the following obligations\r\
  \n- during the period of employment, to provide the seconded worker with all the\
  \ rights arising from the employment relationship to which he or she is entitled\
  \ under the regulations governing employment relationships,\r\n- to allow the posted\
  \ worker, without imposing any restrictions, the possibility of entering into an\
  \ employment relationship with the user after the expiry of the period of the provision\
  \ of the work.\r\nNor may the employer providing the work require the posted worker\
  \ to carry out work in the context of other activities for which the employer providing\
  \ the work is registered, nor may the employer providing the work require the posted\
  \ worker to carry out work with the posted worker which he or she has carried out\
  \ on the basis of contracts concluded under civil law.\r\nThe employer providing\
  \ the work may not refer the worker to the user and the user may not take the worker\
  \ on if the employer providing the work and the user are related companies within\
  \ the meaning of the law governing companies. Under the provisions of the UFSA,\
  \ the user is entitled to\r\n- to comply with the rules governing employment relationships\
  \ during the period of posting,\r\n- to make available to the posted worker the\
  \ vacancies or types of work of the user,\r\n- provide the posted worker with the\
  \ same opportunities for permanent employment with the user as are available to\
  \ workers already employed by the user.  The user may accept posted workers only\
  \ from an employer providing the work who is authorised and registered in the register\
  \ or in the register. An employer who wishes to carry out the activity of providing\
  \ workers to a user shall apply to the Ministry of the Interior for a permit to\
  \ enter the register of domestic legal and natural persons for the activity of providing\
  \ workers to a user or the register of foreign legal and natural persons for the\
  \ activity of providing workers to a user, The registration in the register shall\
  \ take place on the date of the finality of the decision issued by the Ministry\
  \ of the Ministry of Labour, and the activity may commence on the date of entry\
  \ in the register.\r\nAs already mentioned in the first paragraph of the analysis\
  \ of the existing situation, the above-mentioned area is also regulated in the ZDR-1\
  \ (Articles 59 to 63), which lays down the obligation to conclude an employment\
  \ relationship, its specific features, restrictions on the posting of workers and\
  \ certain rights, obligations and responsibilities of the user and the worker, regulates\
  \ the employment contract between the worker and the employer carrying out the activity\
  \ of providing work to the user, and the relationship between the employer for the\
  \ provision of the work, the user and the posted worker.\r\nThe employer providing\
  \ the work shall enter into an employment relationship (permanent or fixed-term)\
  \ with the posted worker and shall assign the posted worker to the user, where the\
  \ posted worker shall work in accordance with the instructions and under the supervision\
  \ of the user. The employment contract shall stipulate that the remuneration and\
  \ allowances will depend on the actual performance of the work by the user, taking\
  \ into account the collective agreements and general acts binding on each user.\
  \ The employer shall also pay a wage compensation for the provision of work to the\
  \ worker for the period of early termination of the work of the user or for the\
  \ period during which the worker is not provided with work by the user, which shall\
  \ not be less than 70 % of the minimum wage. The secondment to the user may be for\
  \ a maximum period of two years for the same work. This means that if the user still\
  \ needs a worker for this job, he must conclude an employment contract. The employment\
  \ relationship can be concluded with the seconded worker or by finding a new worker\
  \ on the labour market.\r\nThe user is vicariously liable for the payment of wages\
  \ and other employment benefits to the worker for the period during which the worker\
  \ worked for the user. In accordance with the rules on occupational safety and health,\
  \ the user shall ensure that posted workers are treated in the same way as regular\
  \ employees with regard to occupational safety and health.\r\nAnalysis of the proposal\
  \ and reasons for its (in)appropriateness:\r\nAs stated above, the employer recruits\
  \ the worker to provide the work and then sends the worker to work for the user.\
  \ This implies that the activity is one in which the employer providing the work\
  \ is engaged as a main activity, and is not intended to be an activity which the\
  \ employer providing the work engages in only occasionally.\r\nIt should be pointed\
  \ out that the provision of Article 165(4) of the LSA provides that a labour employer\
  \ may not assign a worker to a user and the user may not employ that worker if the\
  \ labour employer and the user are related companies within the meaning of the Act\
  \ governing companies. The above regulation prevents situations where workers did\
  \ not know which employer was the actual employer, as they worked once for one company\
  \ and again for another, and could even receive remuneration from a third company.\
  \ In such situations, workers' rights were often violated and, in order to protect\
  \ the weaker party, action by the legislator was necessary and therefore the proposal\
  \ is not feasible.\r\nIn the event of a temporary absence of a worker, the employer\
  \ has a number of options, including the engagement of a seconded worker by the\
  \ employer to provide the work.\r\nWith regard to the possibility of \"redeployment\"\
  \ of the worker within and between undertakings, from an employment law point of\
  \ view, we would like to stress the contractual nature of the employment relationship.\
  \ The employment contract cannot be changed unilaterally, and a change or new employment\
  \ contract can only be made at the will of both parties to the contract. Therefore,\
  \ where there is a change in essential circumstances during the course of the employment\
  \ relationship (this includes, of course, the position or type of work as well as\
  \ the place of work), either party may propose an amendment to the employment contract,\
  \ but the contract may be amended or a new contract may be concluded only if the\
  \ other party agrees to it. A significant interference with the contractual nature\
  \ of the employment relationship is represented by the novelty of Article 33 of\
  \ the ZDR-1, which regulates the possibility to order an employee to perform other\
  \ work during the employment relationship. Under that Article, in order to maintain\
  \ employment or ensure the smooth running of the work process, an employer may,\
  \ in writing, order an employee temporarily to perform other suitable work in cases\
  \ of a temporary increase in the volume of work in another position or type of work\
  \ of the employer, a temporary reduction in the volume of work in the position or\
  \ type of work performed by the employee, and in the case of the replacement of\
  \ an employee who is temporarily absent from his or her job.\r\nSmaller employers\
  \ are given even more internal flexibility, as they can also assign workers to suitable\
  \ work on a temporary basis (same type and up to one level of lower education required).\r\
  \n "
Text file: 577.txt
Title: Posting a worker
URL: https://www.stopbirokraciji.gov.si/pobuda/?st=577
