Kindergarten Act, Slovenia
The Prevention of Illegal Work and Employment Act adopted in 2000 (and amended in 2006, 2010 and 2012) sets out to combat the extent of undeclared work with specific regulations. In 2008, the Kindergarten Act (Zakona o vrtcih, ZVrt) was amended. Aimed at reducing undeclared childcare work, it defined the status of guardian in relation to children at home and stipulates that childcare at home can be carried out by natural persons who have been registered at the Ministry of Education and who satisfy conditions in relation to education and impunity for crimes.
In 1997, the government of the Republic of Slovenia adopted a programme for detecting and preventing undeclared work.
In April 2000, the Prevention of Undeclared Work and Employment Act (Zakon o preprečevanju dela in zaposlovanja na črno, ZPDZC) was adopted. Since then the Act has been amended three times: in 2006, 2010 and 2012. The first chapter on general provisions defines illegal work terms (Art. 3), a participant in illegal work (Art. 4), illegal employment (Art. 5) and illicit advertising (Art. 6):
- illegal work is basically defined as performing an activity or work which is not registered or does not have the documents fulfilling the conditions for performing a registered activity; violations of the prohibition of illegal work shall be monitored by the Market Inspectorate (Tržni inšpektorat);
- illegal employment basically occurs when a legal entity or a private person fulfilling the conditions for carrying out an activity has not concluded a contract of employment or a contract of work in line with the regulations and has not registered the worker with the social insurance system; violations of the prohibition of illegal employment shall be monitored by the Inspectorate of Labour (Inšpekcija za delo).
The second chapter regulates different activities not deemed illegal work (mutual neighbourly help, carrying out work exclusively to meet one’s own needs, carrying out emergency work for the prevention of accidents or to remove the consequences of natural and other accidents, carrying out of humanitarian, charity, voluntary and beneficial work and personal supplementary work. The third chapter contains provisions on supervisory bodies and on a national commission charged with the uncovering and prevention of undeclared work. The last chapter deals with penal provisions.
In November 2006, the Prevention of Illegal Work and Employment Act was amended for the first time. The exceptions not considered as illegal employment were redefined. Under the amended Act, short-term unpaid work in a micro-enterprise or in a company with a maximum of 10 employees is not considered illegal employment if performed by the spouse of the entrepreneur or owner, co-owner of the company, or a person who is a blood relative in direct line to the third generation, with a limitation of 40 hours a month and performed with prior notification to the competent administrative unit. In addition, so-called ‘small work’ was included to the exceptions to the category of undeclared work. Small work is defined as work carried out by someone who is not a full-time employee (working a maximum of 20 hours a week or 40 hours a month, with the wage not exceeding 50% of the minimum wage), does not perform freelance work and is not receiving a pension. The employer must register such a person for social security and wage-related contributions. The performance of such work does not require an employment contract under the Employment Relationships Act.
In March 2010, the National Assembly adopted some minor changes to the Prevention of Illegal Work and Employment Act. It abolished the provisions that considered undeclared work every business activity performed by a foreign company without a branch in the country or prior authorisation. Such provision was contrary to the EU principle of non-discrimination of service providers from different Member States.
Besides increasing penalties and assigning new competences to the Labour Inspectorate, the recent amendment from June 2012 transposes into the legal order of the Republic of Slovenia the Directive 2009/52/EC providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals.
In March 2011, the National Assembly adopted a completely new law, but the opposition parties and trade unions requested a referendum and the law was rejected by the people in a vote in June 2011.
As the amendments of the Prevention of Illegal Work and Employment Act introducing new measures to combat undeclared work were addressed in detail in our previous research (/ef/observatories/eurwork/case-studies/tackling-undeclared-work-in-europe/measures-to-turn-undeclared-work-into-regular-employment-slovenia), this case focuses on the amendments to the Kindergarten Act (Zakona o vrtcih, ZVrt) that in 2008 aimed to reduce undeclared work in childcare. With the aim to reduce undeclared childcare work, it defined the status of guardian in relation to children at home. The Act provides that childcare at home can be carried out by natural person who has been registered at the Ministry of Education and who satisfies conditions in terms of education and impunity for crimes. The guardian can take care of a group of not more than six children.
Also the Commission of the National Assembly for budgetary control and other public finance explicitly pointed out that the government should regulate undeclared childcare and try to transform the illegal status of childcare guardians into legal work and employment.
Article 24a of the Act provides education requirements (at least technical or general secondary education with additional vocational training) and the condition of impunity for certain types of crimes (criminal offences against sexual integrity or intentionally committed criminal offence, prosecuted ex officio, which is punishable by imprisonment for a term exceeding six months. Childcare can take place in an apartment, residential building or on a premises qualifying as a kindergarten. The guardian can take care of a group up to six pre-school children. Being on the register is a prerequisite for registration of the childcare activity in the Business Register of Entrepreneurs.
Ministry of Education, Science, Culture and Sport, Association of Kindergartens Slovenia, Ministry of Labour, Family and Social Affairs, Court of Audit of the Republic of Slovenia.
Outcome of evaluations: lessons and conclusions
Achievement of objectives
In its audit of 'The availability of pre-school education' the Court of Auditors in 2010 established the possibility that being on the register of pre-school children guardians at least to some extent reduces the number of providers of childcare in the shadow economy.
Obstacles and problems
Experts working in childcare need to meet special educational and other standards. Therefore, the measures aiming exclusively at the regulation of their labour law status have to be implemented very cautiously. Measures that legalise the status of workers who do not satisfy all educational and other conditions and who do not possess adequate skills and competencies could reduce the quality of the services in the whole childcare sphere. Therefore, the state in addition to legalisation should offer additional professional support.
The abovementioned measures could have been even more effective if this form of childcare had been financially supported by the state. With the Kindergarten Act amendment childcare providers that operate in the shadow economy did not receive sufficient incentives to legalise their activity. With a financial incentive the government would ensure a better overview and supervision of the quality of care in terms of the health and safety of children.
Facilitating conditions for the performance of certain tasks or professions in the case of regulated activities is an important, but not a sufficient means to reduce undeclared work. In order to maintain high standards of services, the process of regulation of such professional fields requires special attention. In order to transfer illegal workers from the shadow economy to legal labour market the state needs to provide at least some financial incentives and strengthen the supervision.
In 2008, the first year after establishing the register, 19 guardians of children were registered, taking care of 114 children. In 2009, 2010 and 2011 the number increased significantly, so by December 2011 149 guardians were registered, taking care for more than 800 children.
The transferability of this measure to other countries depends on the national regulation of childcare activity. Where it is a regulated activity, which can be only under certain conditions, and where the public and private kindergarten capacities do not meet the demand, legalisation of the activity under milder conditions is adequate.
- Ministry of Education, Science, Culture and Sport (Ministrstvo za izobraževanje, znanost, kulturo in sport): http://www.mizks.gov.si/
- Ministry of Labour, Family and Social Affairs (Ministrstvo za delo, družino in socialne zadeve): http://www.mddsz.gov.si/
Ministry of Education, Science, Culture and Sport, Seznam vrtcev in varuhov predšolskih otrok na domu. [List of kindergartens and guardian of preschool children at home], Ljubljana, August 2012. Available at: http://www.mizks.gov.si/si/delovna_podrocja/direktorat_za_predsolsko_vzgojo_in_osnovno_solstvo/predsolska_vzgoja/seznam_vrtcev_in_varuhov_predsolskih_otrok_na_domu/
Court of Audit of the Republic of Slovenia.Revizija Dostopnost predšolske vzgoje. [Revision on availability of preschool childhood education.] Ljubljana, 2010.
National Assembly of the Republic of Slovenia, Obrazložitev predloga Zakona o vrtcih (ZVrt-D). [Preamble to the draft of the Kindergarten Act] Ljubljana, 2007. Available at: http://www2.gov.si/zak/Pre_Zak.nsf/938d6de81845d6ccc1256616002a1e89/1f3f04239a5160d4c12573c60027271d?OpenDocument&ExpandSection=1
Zakon o preprečevanju dela in zaposlovanja na črno [Prevention of Illegal Work and Employment Act], Official Gazette of the Republic of Slovenia (Uradni list RS), 12/2007.
Zakon o vrtcih [Kindergarten Act], Official Gazette of the Republic of Slovenia (Uradni list RS), 12/1996.
Commission of the Government of the Republic of Slovenia for the detection and prevention of undeclared work employment, Poročilo o aktivnostih in učinkih preprečevanja dela in zaposlovanja na črno za obodbje 1.1.2011-30.6.2011 [Annual report on activities and impacts of the prevention of undeclared work and employment for the period 1.1.2011-30.6.2011], Ljubljana, September 2011.
Commission of the Government of the Republic of Slovenia for the detection and prevention of undeclared work employment, Poročilo o aktivnostih in učinkih preprečevanja dela in zaposlovanja na črno za leto 2010 [Annual report on activities and impacts of the prevention of undeclared work and employment, 2010], Ljubljana, April 2011.
Commission of the Government of the Republic of Slovenia for the detection and prevention of undeclared work employment, Poročilo o aktivnostih in učinkih preprečevanja dela in zaposlovanja na črno za leto 2009 [Annual report on activities and impacts of the prevention of undeclared work and employment, 2010], Ljubljana, June 2010.
Barbara Rajgelj, University of Ljubljana