Area: Pravosodje
Competent authority: MP
EZU URL: .nan
Initiative ID: 746
Initiative accepted and completed: .nan
Initiative classified in EZU: .nan
Initiative forwarded in response: '2016-06-06'
Initiative published: '2016-06-06'
Initiative submitted: '2016-05-06'
Response from the competent authority: "Answer from the Health Insurance Institute\
  \ of Slovenia:A court which finds that an employee's employment contract has been\
  \ unlawfully terminated does not, as a rule, determine in the court proceedings\
  \ whether the employee has been re-employed, self-employed or is compulsorily insured\
  \ under another social insurance scheme after the termination of employment. In\
  \ this case, the court simply orders the employer to call the worker back to work\
  \ and to include him in the compulsory social security schemes from the date on\
  \ which his employment contract was unlawfully terminated. Difficulties have arisen\
  \ in the implementation of such judgments in compulsory social security cases where\
  \ the worker was already covered by pension and invalidity insurance for other reasons,\
  \ such as employment or self-employment or unemployment benefits, during the period\
  \ in question.\r\nTo this end, the legislator has laid down rules for the recognition\
  \ of the characteristics of an insured person under an employment relationship on\
  \ the basis of a court judgment, a court settlement or mediation procedures in Article\
  \ 83 of the Act on the Register of Insured Persons and Beneficiaries of Pension\
  \ and Invalidity Insurance Benefits (Official Gazette of the Republic of Slovenia,\
  \ No 111/13 and No 97/14; hereinafter referred to as ZMEPIZ-1). A worker acquires\
  \ the character of an insured person in the pension and invalidity insurance under\
  \ the employment relationship only for the following periods: when he/she was not\
  \ covered by the pension and invalidity insurance, when he/she was voluntarily covered\
  \ by the pension and invalidity insurance, and when he/she was receiving temporary\
  \ incapacity for work benefit after the termination of the employment relationship.\
  \ Other registered pension and invalidity insurance schemes shall be considered\
  \ as priority insurance schemes. An exception applies if the person was in receipt\
  \ of unemployment benefits.\r\nArticle 65(3) and (4) of the Act on Labour Market\
  \ Regulation (Official Gazette of the RS, No 80/10, 40/12 - ZUJF, 21/13, 63/13,\
  \ 100/13, 32/14 - ZPDZC-1 and 47/15 - ZZSDT; hereinafter referred to as the ZUTD)\
  \ sets out the cases in which the ZRSZ shall revoke the decision granting the right\
  \ to unemployment benefit if the unlawful termination of the employment contract\
  \ has been established by a court decision, a court settlement or a mediation. If\
  \ the decision granting the unemployment benefit is annulled, the legal basis for\
  \ the unemployment benefit is consequently removed. When the insurance is cancelled\
  \ by the ZRSZ, the ZPIZ may, on the basis of Article 83 of the ZMEPIZ-1, recognise\
  \ the characteristic of an insured person under the employment relationship ('when\
  \ not covered by pension and invalidity insurance') for that period. The decision\
  \ on the recognition of the characteristic of an insured person under an employment\
  \ relationship issued by ZPIZ is the basis for the insurance arrangements to be\
  \ made by the employer at the registration and deregistration service of the ZZZS.\r\
  \nThe procedure for recognition of the characteristics of the insured person following\
  \ a court decision is regulated by ZMEPIZ-1 and ZUTD, and the implementation of\
  \ the above-mentioned laws is the responsibility of ZPIZ and ZRSZ.Reply from the\
  \ Ministry of Labour, Family, Social Affairs and Equal Opportunities:With regard\
  \ to the submitted proposal from the point of view of pension and disability insurance,\
  \ we would like to clarify that the determination of the characteristics of the\
  \ insured person is regulated by the Act on the registry of the insured persons\
  \ and the beneficiaries of the pension and disability insurance (Official Gazette\
  \ of the Republic of Slovenia No.: RS, no. 111/13 and 97/14, hereinafter referred\
  \ to as ZMEPIZ-1), which provides in Article 80 that the existence of an insurance\
  \ relationship or the characteristics of an insured person shall be established,\
  \ inter alia, in the event that the existence of an employment relationship has\
  \ been established by a final judgment, court settlement or in mediation proceedings.\
  \ The procedure for establishing an insurance relationship is initiated at the request\
  \ of an individual, ex officio or at the request of an employer, and the Pension\
  \ and Disability Insurance Institute of Slovenia decides on the insured person's\
  \ characteristic by means of a decision.Article 83 of ZMEPIZ-1 regulates the establishment\
  \ or change of the insurance basis on the basis of a decision in labour disputes,\
  \ and establishes the basic rule that in these cases the insured person's characteristic\
  \ is only acquired in respect of the periods during which the insured person was\
  \ not covered by compulsory insurance. However, notwithstanding this basic rule,\
  \ in cases where the existence of an employment relationship has been established\
  \ by a judgment, court settlement or mediation procedure which has become final\
  \ and has been enforced as regards the payment of contributions, the insured person's\
  \ insurability shall also be established for periods during which the insured person\
  \ was voluntarily covered by compulsory insurance or was compulsorily insured as\
  \ a person entitled to temporary incapacity for work benefits following the termination\
  \ of the employment relationship in accordance with the rules governing sickness\
  \ insurance.\r\nTherefore, the LMEPIZ-1 does not allow for the establishment of\
  \ the insured person's characteristics on the basis of a judgment, court settlement\
  \ and mediation for periods during which the person was covered by compulsory pension\
  \ and invalidity insurance as an unemployed person receiving unemployment benefits.\
  \ The decision on the period of establishment of the insured person's characteristics\
  \ therefore depends on a previous decision of the competent authority - the Employment\
  \ Service of the Republic of Slovenia - to revoke the decision granting the right\
  \ to unemployment benefit. The procedure for such cancellation and the repayment\
  \ of unjustified funds received on this basis is laid down in Articles 65 and 140\
  \ of the Labour Market Regulation Act (Official Gazette of the Republic of Slovenia,\
  \ No 80/10, 40/12 - ZUJF, 21/13, 63/13, 100/13, 32/14 - ZPDZC-1 and 47/15 - ZZSDT,\
  \ hereinafter referred to as ZUTD).\r\nAccording to the legislation in force, the\
  \ condition for acquiring the status of an insured person on the basis of a court\
  \ decision for the period during which the insured person was covered by the insurance\
  \ as an unemployed person receiving a cash benefit is the termination or withdrawal\
  \ of the decision on entitlement to such benefit. The regime is based on the presumption\
  \ that the insurance relationship under which the person was covered by compulsory\
  \ pension and invalidity insurance has become final and may be interfered with only\
  \ to a limited extent. In practice, the regulation is therefore linked to the implementation\
  \ of various administrative procedures and the implementation of the judgment therefore\
  \ takes time. In April, the Ministry of Labour and Social Affairs and Social Security\
  \ issued a White Paper on Pension and Disability Insurance (hereinafter referred\
  \ to as the White Paper), which contains, among other things, some views and proposals\
  \ on the insurance basis, the current regulation of this area and the challenges\
  \ facing pension and disability insurance and society, while a working group also\
  \ proposed possible ways of dealing with the pension system.\r\nIn this context,\
  \ the White Paper Working Group also proposed to discuss the possibility of unifying\
  \ the insurance bases and introducing equal treatment of income from work, irrespective\
  \ of the legal relationship underlying the income received. The problems raised\
  \ by the proposer would also be eliminated by harmonising the insurance bases.\r\
  \nThe White Paper is an expert document which provides a basis for further discussion\
  \ on possible solutions for pension and invalidity insurance and does not constitute\
  \ a pension reform. Possible future solutions will have to be designed in a way\
  \ that is acceptable to all generations and on which there will need to be intergenerational\
  \ consensus. We would like to clarify that, in addition to the proposals, the White\
  \ Paper also sets out or explains the rationale for, and the effects of, the various\
  \ proposals for change. The White Paper is published on the website of the Ministry\
  \ of Social Affairs and Health and is available for everyone to read. At the same\
  \ time, we would like to clarify that various solutions are also proposed in relation\
  \ to the insurance bases. In the light of the above, we would therefore like to\
  \ clarify that simplification of the system of insurance bases is also being considered,\
  \ which would also simplify the issues raised, but that it is envisaged to adopt\
  \ only those proposed changes on which there is agreement among the social partners.\
  \  \r\n "
Text file: 746.txt
Title: Unlawful termination of an employment contract
URL: https://www.stopbirokraciji.gov.si/pobuda/?st=746
