Employment relations ACT U r .l. RS, št. 42/2002, 79/06, 103/07

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Slovenian labour law system, key elements,

materials for postgraduate studies, Faculty of Law, Trieste University, 2008/09

prof. dr.Zvone VodovnikUniversity of Ljubljana, University of Primorska,

University of Trieste

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Employment relations ACTUr.l. RS, št. 42/2002, 79/06, 103/07

• Employment relations in the world (EU, USA,...)

• International aspects• Labour law as a legal subsystem• Constitutional bases• The aims of the statute

- flexibility

- employees protection

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Definition of the employment relation

• Organized working process

• Wage

• Personal working performance

• Guidance and supervision of the employer

directive authority disciplinary authority

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Interdiction of discrimination• The Constitution ( 14.th art.)• Job seekers - employees• Gender ( man – women )• Direct – indirect dis.

regulations apparently neutral criteria

practicesnon equal position

employer – the burden of proof managerial instructions and orders harassment and mobbing

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General enactment of the employer

• Autonomous legal resource• Representative trade union opinion

or

employees notification

- systemisation ( job classification ) duty of regulation of job requirements

- other employer’s enactment

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Employment contract• “real” contract• Applying for a job, employee’s submission of the

application which may not exceed 5 days • beginning of work• Subsidiary use of civil code• Null and void contract, • The form (not essential, obligatory)• parties

employer ( physical person, legal person, mandate ), the employee (ability 15 years, conditions)

foreigners ( special regulations )

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Conclusion of the EC

• announcement, public competition• exceptions:

already established relations changed circumstances partners in the company, family members top managers, functionary, ....

• Interdiction of the discriminatory announcement (indemnity)

• Rights and obligations of the employee and employer

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Contents of the EC

• Elementary parts of the contract

• Contents : job area of the prof.activit.

• Type of the contract

• Working conditions - legal resources, citing

- reference to autonomous res. (incorporation)

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Duties of the EC parties – determinated by the law

Employee’s duties• Conscientiously performance of

work• Following employers' directives • safety• notifications• Prohibition of damaging

conduct• Protection of the employer’s

secrecy• Prohibition of competition

- ex lege - competition

clause

Employers’ duties• To secure work and wage• Safety

• Protection of the employees’ privacy and dignity

• Protection of the personal data

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Types of the EC ( I.)employer must inform the expert or specialized service in charge of safety at work

about the conclusion of any fix-term contracts or contracts for temporary work

arrangements a) Fix term EC• limitations

cases time limits Sanction: fiction

• Season work and conversion of w. h. in w. days

b) EC and the Contingent Work• Trilateral relation• interdiction

employees on strike massive redundancies lack of safety at work

• Time limit – one year• Employer’s duties

compensation 70% adequate notifications

• User employer• User employee

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Types of the EC (II.)

c) Public works

• Arrangements of the Active Employment Policies (AEP)

• E.E.Unemp.Statute nature of the work work + education

and training determined period of

time ( max: one year)

d) part time EC• Property rights proportional

• Other rights entire value

• Composed full time working time agreement with the employers

and in between the employers

• Social risks and the part time work

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Types of the EC (III.)

d) Work on the employee’s premises

• Notification of the Labour Inspectorate

• Nature of work the rights and duties

• Employer’s duties safety compensation

• Labour Inspectorate intervention ,

the list of jobs – non allowed Telework

e) EC with the Top Managers• EC Work Contract (Civil

Code)• Company Law• EC and “different” arrangement of

working time break, rests, absences holidays wages Disciplinary liability termination of the ECNot allowed for lower levels of

managers and business representatives

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Transfer of the undertaking

• transfer, merger, division the same work, new E. • Min.: one year ( termination of CA), the same rights• Offer of the new EC ( less favourable)

Employee refuses = notice: considered as notice because of the economic reasons

notice periodemployee’s rights dismissal

compens. unemployment benefits

• Employee’s demands: both organisations• Prior notifications of trade union, common consultations or

direct notification of employees

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Termination of EC

• I.L.O. Convention No. 158 • Cases determined by the law ( statute, custom)

expiry of the period (fix term contract)

death , “civil death”

agreement

• dismissal regular, ordinary (notice period) irregular, extraordinary

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limitations

Substantional• Warning….• Valid reason, giusta

causa

• Invalid reasons….• Conditions…

consent (employee, IL) special rights

(compensation)

• Time suspension ( illness)

procedural, formal

• Self-defence• Trade union claim

retaining the exec. deadlines (A.,C.) tempor. decision arbitration

Employers privilege (suspension)

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The form and delivery of notice

• In written• ..to be explained…• ….rights after the

termination of EC claim unemployment

benefits

• Working place job performance custom residence

• Civil procedure regulations

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Regular (ordinary) dismissal causes• Employee – no need to explain• Employer

economic... incapacity... valid and fecundated , making imposs... guilt-related... inability to work ...

• e.., i.., checking up for another job ( training, retraining)

• Time limits to indicate legal causes..• Guilt-related reasons, the suspension +compensation..

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Substantial law limitations

• Non-valid reasons social determined

reasons… claim…. workers’

representatives’ activities….

• Employee’s transfer:

Dismissal with the offer of the new job

refusal: the risk to be redundant

acceptance of the adequate job: …still preserved right to claim against dismissal

acceptance of the non adequate job: …preserved right to claim + partial notice compensation

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Notice periods• employee ..one month… (EC, CA …max.: three months)• Employer: depending on working period of the employee in company

30 days if the worker’s period of service with the employer is less than five years

45 days if the worker’s period of service with the employer is at least five years

60 days if the worker’s period of service with the employer is at least 15 years,

120 days if the worker’s period of service with the employer is at least 25 years.

• Compensation instead of notice periods…• ...contract terminated by the employer due to fault reasons on the

side of the worker, the minimum period of notice is one month. The period of service also includes the period of service with the employer’s legal predecessors.

• During the n. p. – min. 2 hours of the paid leave of absence weekly….

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Dismissal of high number of the employees (collective dismissal)

• Redundant high number of the e.criteria

notification and consultation with TU elements of plan

plan notification of unemployment office:- reasons - proposals- measures of prevention - delay of dismissals- the list- measures to mitigate..- financial evaluation of the plan

• criteria statute, CA social status non acceptable criteria

• Reemployment within one year

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Compensation (severance pay)

• economic r…, r… of inability

• Bases for calculation = last 3-month wage or hypothetical wage

• Amount depends.... = period of work for the E.1 – 5 years 1/5 of bases for every year5 – 15 years 1/4........over 15 years 1/3 ……….

• maximum = 10 times of basis figure , if not determined otherwise by CA (?)

• agreement about lower sum allowed ...to prevent massive redundancies

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Irregular termination of EC (I.)• Causes – wrongful action of the contract party, cases determined by the statute

• Unbearable relation

• Deadline, subjective criterion - 15 days, objective criterion - 6 months, exception: penal process

• Irregular notice of the employer

wrongdoing with elements of the criminal offence grave fault, serious misconduct ( intent, heavy negligence) absence over 6 months period, state body decision (detention) unsuccessful probation period, late return after the expiring of the suspension of the EC, refusal of the health treatment – when addicted the prohibition of work ( suspension in case of TU claim), compensation 50%

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Irregular termination of the EC (II.)

• employee previous warning, notification of the I.L. causes

non paid wage or compensation (3months) non secured work non secured safety insults, violent behaviour against the e. sexual discrimination sexual attack

Severance pay - as in case of dismissal by the employer because of the economic reasons

indemnity – min :determined by the statute

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Special protection against dismissal

• Employees’ representatives :- consent, or court decision,- duration: still one year after the

termination of the function

• Elder employees : consent or the continuous compensation until retirement or

the offer of another appropriate job or commencement of the termination of

the works unit

• Pregnant workers : consent of the e. or L.I.

• Disabled persons : permission of the state commission

• Illness: not dismissed while on the treatment

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court decision and the termination of the EC

• Stated illegal dismissal

e. demand court statement

unsustainable relation

court decision:

day of the termination of EC

+

other employee’s rights

• Disabled: termination of

the EC on the basis of executable decision on institution

• Foreigner: termination of the EC

with expiration of the work permission

• At the end of bankruptcy procedure at the day of registration of court decision

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Claiming rights and protection of the employees

• Employers’ non accomplishment of duties

• Violations of rights

• Claim to fulfil …., …..to abolish violating activities..

• 8 day period to comply with the claim…if not

suit (court)…charge (arbitration)…..within 30 days

• Directly (without prior claim) suit against employer’s decision in written suit for remuneration and other financial claims

• Unsuccessful job-applicant…..30 days for suit

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arbitration

• Provided by the CA, the composition, the procedure

• agreement

• Limited court protection

• No decision within 90 days suit in next 30 days

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Activities and protection of the TU representatives

• Employers’ duties: to secure a fast and effective TU activity

• External TU with members in specific company can nominate

its representative,….if not…the president of TU

• Employers’ notification

• TU activity must not hinder employers’ activities preserving rights in case of transfer of the company number of the shop-stewards – criteria by CA ban mobbing or discrimination keeping accountancy for trade unions

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Traineeship and probation period

• Legal bases: regulations, branch CA

• Duration, extension, shortening of the period

• Training and the exam

• Limitation of dismissal (econ. reasons)

• volunteers

• Duration, extension

• Termination: employee can give notice with 7 days notice p.

• Limitation of dismissal (econ. reasons)

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Wage, remunerations, compensations, • minimal

• elements- basic- work efficiency- extras (working conditions)- extras for business success-if appointed

• interdiction of sex discrimination

• time and place of payment

• limits of retention or compensation of the wage

• trainees…min: 70% of basic wage or minimal wage

• fecundation of expanses

• holiday bonus

- deadline

-proportion

• retirement compensation- min: 2 wage amount- no right, if the employee receives the continuous compensation until retired,or severance compensation

• paid leave of absence on the employers’ burden

• absences on the burden of social security funds

• health…division of burden

• no possibility to work....................................”vis maior”….divided burden of lost wage

• compensations determined for cases, determined by law… and ….general amount……3 ultimate wages!

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Working time (I.)

• effective (without break), min.30’’ • full – max. 40, 36 (CA), less than 36 (increased dang.)• Limitations of the overtime work

cases written decision ( exsept - urgent action) time limits (8, 20, 170), 10 hours daily with the employee’s consent...more...max. 230 hours no limits: …preventing and eliminating the consequences… prohibition of overtime work

if possible to organize in different way for the “vulnerable” categories of the employees

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Working time (II.)

• additional employment relation education, science, deficient professions 8 hours a week – max. termination: expiry of fixed time, consent withdrawal

• managing and distribution year plan: notification of the employees and TU temporary change

bases: regulation, contract prior written notification

disproportionate distribution: the nature of work levelling period: 6 months or recalculation of w. hours

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Working time III• Night work

“night workers” ( at least three hours a day, one third of full time job)special protection

1. interdiction on the basis of the medical findings2. special rights: larger right to holiday leave, meal,

management, limits in turn-over3. specific condition: transport4. specific limitations

quantity daily limits, when the work with the greater risks

Consultations with trade unions Specific regulation: women in building and industry

Special conditions Consent of the minister for labour Trade union role

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Break and rests

• break (30 minutes) , calculated in the w. time

in proportion: if a worker work at least 4 hours

• rests daily, weekly Less in the case of asymmetrical organization of the working time

• Special arrangements of night work, break and rests by law and the branch collective agreements top managers, authorized clerks managers employees who perform home work

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Annual leave• duration: 4 weeks• increased: 3 days – older persons, invalids, handicapped

1 day – parents with children in the family• acquired

6 months = the full amount 1 month = proportional (1/12)

• use One part: at least 2 working weeks, ...more parts Use in the next year (30.6) Use on a burden of the other employer- agreement Approval – the interests of both parties One day ...employee’s will, ... resigning the right?

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Other absences (paid leave)• Personal circumstances: one day

- child born- marriage- death in the family- misfortune

• Festive days• Illness • Blood giving • Performing the public function • Activities in the bodies of the social partners• Military affaires

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Education and training

• education: the right• training

improving the knowledge: right and duty• The scope

development ( professional, personal) Preserving the employment

• Right and duty of the employer• Right to be absent from the work place

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Disciplinary responsibility

• Violations of the duties• sanctions

ex lege : warning branch collective agreement: additional ( fees, ... ) interdiction ....not a permanent change....

• Disciplinary bodies: statute, authorisation,

agreement

procedure : defence, fact finding, trade union opinion

written decision

• Time limits: introduction, conduct, execution...

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liability for the damage

• General regulations-special regulations• Worker’s liability

The level of the guilt ( dolus, great negligence) More persons responsible: according to their share.., equally Whichever the whole sum To diminish or to relieve of a burden to pay damages

• Employer’s liability Employee – injured at work place or by the employer’s conduct

against his rights Civil regulations, regulations concerning the safety ...

• Lump sum as the indemnity

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special protection of some categories of the employees

• women: interdiction of subterranean work +exceptions

• Pregnancy and parental ship Organizing the work ... Interdiction of some jobs ... Offer of the different job or the compensation Interdiction or limitation of overtime work or night work Parental leave Break of the breast-feed mother: min 1 hour

• Young people Interdiction of specific activities (regulations) Working time limitations, break, rests Interdiction of the night work and exceptions Increased holiday leave ( 7 days )

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special protection of some categories of the employees (II.)

• Invalids (disabled persons) Regulations inside social security legislation The right to

suitable work according to preserved work capacity (other.., part-time work...)

professional rehabilitation

• Elder employees age 55 years part time..., partially pensioning night work and overtime with the employer’s consent