Area: Delovno pravno
Competent authority: MDDSZ, ZZZS
EZU URL: .nan
Initiative ID: 592
Initiative accepted and completed: '2015-07-07'
Initiative classified in EZU: .nan
Initiative forwarded in response: '2015-06-04'
Initiative published: '2015-06-04'
Initiative submitted: '2015-06-01'
Response from the competent authority: "Answer from the Employment Agency of the Republic\
  \ of Slovenia:On 1 January 2014, the Act on the Register of Insured Persons and\
  \ Beneficiaries of Pension and Disability Insurance came into force, which established\
  \ a new deadline for persons in employment relationships to submit applications\
  \ for pension and disability insurance (Article 45(2) of the Employment Insurance\
  \ Act-1), and at the same time abolished the deadline for submitting applications\
  \ for compulsory health insurance (Article 116(1), second indent of the first paragraph\
  \ of the Employment Insurance Act-1).The Act also abolished the deadline for submitting\
  \ applications for compulsory sickness insurance.\r\nAccording to Article 45 of\
  \ ZMEPIZ-1, the application for an employee in an employment relationship must be\
  \ submitted on the date of commencement of work under the employment contract, but\
  \ at the latest before the commencement of work. If the worker does not start work\
  \ on that day for justified reasons, the application must be submitted at the latest\
  \ on the day agreed in the employment contract as the day on which the work is to\
  \ start. Delay in the deadline for filing the application for insurance is an offence\
  \ under Article 105 of the MIEPIZ-1.Due to the legal provision that the application\
  \ for insurance must be filed before the commencement of work, employers conclude\
  \ employment contracts several days before the commencement of work and also file\
  \ the application for insurance at the same time. The ZZZS allows for the registration\
  \ of an application for insurance up to 8 days before the start of the insurance\
  \ period.\r\nThe certificate of registration, which is returned to the employer\
  \ by the ZZZS, is also proof that the worker has been registered for insurance,\
  \ thus indirectly proving that the employer is not employing the worker in an undeclared\
  \ capacity (Article 5, first indent, paragraph 1, Article 5 of the Act on the Prevention\
  \ of Planned Labour and Employment (ZPDZC-1)).In relation to the above-mentioned\
  \ issue, it is necessary to distinguish between two situations.In the following\
  \ cases, the employer is required to provide the employer with the following information:\r\
  \n1* the worker is absent from work on the day of the start of work, which is the\
  \ first day of insurance, without justification\r\nExample: an employer submits\
  \ an application for employment insurance on 28.5.2015, the date of commencement\
  \ of work under the employment contract, which is the first day of insurance, is\
  \ 1.6.2015. The worker does not commence work on 1.6.2015 because he/she does not\
  \ want to work for that employer.\r\nThe Institute has obtained the opinion of the\
  \ Ministry of Labour and Social Affairs (attached), which states that in cases where\
  \ the worker does not start work on the date agreed in the employment contract,\
  \ the Employment Contract is not terminated by the ZDR-1. In terms of the validity\
  \ of the contractual relationship, they note that the employment relationship is\
  \ established, the employment contract is formally valid, but the rights and obligations\
  \ under the employment contract are not exercised. In these cases, the MoLSA considers\
  \ that the employment contract can only be terminated in the manner provided for\
  \ in Article 77 of the ZDR-1.\r\nThis means that if an employment contract has been\
  \ concluded but the childminder has not started work for unjustified reasons, it\
  \ is not possible to cancel the registration for employment insurance. The employer\
  \ must provide proof of the termination of the employment contract at the time of\
  \ deregistration.\r\nThe employer will most often provide a termination agreement\
  \ or an extraordinary dismissal by the employer as proof of the termination of the\
  \ employment contract, stating 01 as the reason for the withdrawal. If the date\
  \ of withdrawal is the same as the date of registration for insurance, then the\
  \ worker will have one day of employment insurance with that employer.\r\n2. the\
  \ worker withdraws from the employment contract before the date of commencement\
  \ of work, the application for insurance has already been submitted\r\nExample:\
  \ the employer submits the application for employment insurance on 28.5.2015, the\
  \ date of commencement of work under the employment contract, which is the first\
  \ day of insurance, is 1.6.2015. The employee resigns from the employment contract\
  \ on 29.5.2015, which has not yet commenced.The ZZZS has also detected a few cases\
  \ such as the case described by the petitioner (less than 10), where the employee\
  \ resigns from the contract before the date of commencement of work agreed in the\
  \ employment contract. In these cases, specific explanations were given to the application\
  \ and withdrawal service that the application could be cancelled, provided that\r\
  \nthe employer provides a written declaration by the employee (or similar evidence)\
  \ that he/she is withdrawing from the employment contract and that he/she is aware\
  \ that the registration for insurance already submitted will be cancelled.\r\nTo\
  \ avoid similar situations, we will prepare a special instruction for the opt-out\
  \ service.The fact that it is possible to enter an application at the Employment\
  \ Insurance Fund before the employment contract actually starts should not prevent\
  \ the parties from freely expressing their will as to the validity and content of\
  \ the contractual relationship agreed in advance - but only up to the date of commencement\
  \ of work. Cancellations were thus only permissible where the withdrawal from the\
  \ contract of employment took place before the date of the commencement of work.\r\
  \nFor the specific case, we kindly ask you to refer the taxpayer to the ZZZS, Section\
  \ for Insurance Regulation and International Health Insurance, Valentina Vehovar\
  \ (valentina.vehovar@zzzs.si. tel. 30 77 417), so that we can check again whether\
  \ the conditions for cancellation of the insurance are fulfilled.Response of the\
  \ Ministry of Social Affairs and Social Security:The issue raised was examined from\
  \ the point of view of the issues of employment law - the existence of an employment\
  \ relationship as a basis for compulsory social insurance.\r\nIn this context, we\
  \ note that the Labour Relations Act (Official Gazette of the Republic of Slovenia,\
  \ No 21/13 and No 78/13 - corrected version, hereinafter referred to as \"ZDR-1\"\
  ) provides in Article 11 that an employment relationship is established by an employment\
  \ contract, and the rights and obligations arising from the employment relationship\
  \ begin to be exercised on the date of commencement of work, as agreed in the employment\
  \ contract, or on the date of conclusion of the employment contract. The employer\
  \ must enrol the worker in social security schemes at the latest before the work\
  \ starts and must give the worker a photocopy of the enrolment form within 15 days\
  \ of the start of work.\r\nThe rights and obligations arising from the performance\
  \ of work in an employment relationship and the inclusion in social insurance on\
  \ the basis of the employment relationship begin to be realised on the date of the\
  \ commencement of work, even if the worker does not commence work on that date for\
  \ justified reasons (Article 11(4) of the ZDR-1). Justifiable reasons for not commencing\
  \ work are cases where the worker is excused from work by law or by a collective\
  \ agreement, but may also be determined by the parties themselves in the employment\
  \ contract. Therefore, if the worker does not start work for excused reasons, the\
  \ employment relationship is deemed to start on the date specified in the employment\
  \ contract or on the date of signature of the contract, including social security\
  \ rights.\r\nHowever, if the worker fails to report for work and does not justify\
  \ this, we note that the ZDR-1 does not explicitly regulate this situation.  The\
  \ ZDR-1 only regulates the ways in which an employment contract may be terminated,\
  \ whereby the employment contract is terminated in the manner provided for in the\
  \ ZDR-1 (Article 77).\r\nIn addition, we draw attention to the provision of Article\
  \ 13 of the ZDR-1, according to which the general rules of civil law apply mutatis\
  \ mutandis to the conclusion, validity, termination and other matters relating to\
  \ an employment contract, unless otherwise provided for by this or another law.\
  \ In this respect, we consider that, from the point of view of clarity and demonstrability,\
  \ it is appropriate and necessary for the employer to make a written declaration\
  \ regarding the non-fulfilment of employment rights and obligations (due to the\
  \ employee's failure to report for work for an unexcused reason).\r\nWe will consider\
  \ the need for clearer legal regulation in relation to the initiative highlighted\
  \ and will address it in the process of the next legislative amendments.\r\n "
Text file: 592.txt
Title: Enrolment and disenrolment of workers in pension, invalidity and health insurance
URL: https://www.stopbirokraciji.gov.si/pobuda/?st=592
