New law regulates public employment and labour relations
In June 2002, the Slovene parliament adopted a new Law on Public Employees (LPE), which will come into operation in June 2003. The legislation represent an important step in the reform of the public administration in Slovenia. The first, smaller part of the LPE concerns the whole public sector and covers all public employees, setting out common principles governing collective and individual labour relations. The second, larger part of the LPE governs the specific employment system for public employees and public servants in state bodies and in the administration of local communities, and regulates the particularities of labour relations in this part of the public sector.
On 11 June 2002, the Slovene parliament passed a new Law on Public Employees (Zakon o javnih usluzbencih) (LPE), which will come into operation from 28 June 2003. The adoption of this law is an important step in the reform of the public administration, because, as well as employment in the wider public sector, it regulates the employment system and status of employees in state bodies and local community administrative bodies. Reform of the public administration is one of the government's priority projects and involves transforming the system into one comparable to those in the EU Member States, in line with certain accepted standards. These standards are being disseminated to the candidate countries for EU membership through cooperation with a joint EU/Organisation for Economic Cooperation and Development (OECD) initiative called Support for Improvement in Governance and Management in Central and Eastern European Countries (SIGMA). They include respect for, and protection of, basic employee rights.
The legislation regulating public employment in state bodies and local community administrative bodies applying until the LPE comes into operation in June 2003, is regarded as inadequate, outdated and in need of modernisation. There has been no appropriate separation between political appointees and civil service posts in positions which require the highest expert competence. Decision-making regarding personnel questions (appointments, promotions etc) has been overly centralised, but at the same time there has been no adequate supervision of the respect of regulations. For example, the Constitution of the Republic of Slovenia determines that employment in the state administration is possible only on the basis of selection through an open competition, except in cases provided for by law. The current legislation on public employment provides for open competitions, but does not contain measures to prevent employment without such a competition.
The regulation of the rights and duties (including pay and conditions) of public employees in state bodies and local community administrative bodies has been quite unclear. The intersectoral collective agreement for the whole public sector (previously known as the 'non-economic' sector and covering nearly all public employees) does not cover employees nominated by the government - ie higher administrative employees (higher public servants). Furthermore, public employees in state bodies and local community administrative bodies, while they are covered by this intersectoral agreement, do not have their own sectoral agreement (as do other public sector groups, such as education workers). They are thus in less advantageous position than other public employees.
Contents of the LPE
The main content of the new Law on Public Employees are as follows.
The LPE divides the public sector into:
- state bodies and the administrations of self-governing local communities (municipalities or provinces). State bodies are
- bodies of state administration, such as ministries, bodies within ministries, government services and administrative units, and
- other state bodies, such as the National Assembly, National Council, Constitutional Court, Court of Audit, Ombudsman for Human Rights and Fundamental Freedoms, judicial bodies (courts, State Prosecutor's Office etc) and other state bodies which are not bodies of state administration;
- public agencies, public funds, public institutions and public economic institutions. Here the term public institutions covers the public services, such as public health services, public education services etc;
- other bodies governed by public law if they are indirectly financed by the state budget or the budget of local communities.
Public enterprises and companies, where the state or the local community has a majority share or prevailing influence, are not part of the public sector as defined by the LPE.
The law defines a public employee as an individual who concludes an employment relationship in the public sector. Senior officials who are politically appointed in state bodies (state administration and other state bodies) and local community bodies - such as ministerial advisers and the heads of certain state-run bodies - are not public employees.
Public servants are defined as those public employees who have a special status and related rights and duties. The LPE contains provisions which regulate matters such as: the system of public competition for appointment as public servants; their promotion to higher positions; and the system of education and professional examinations. Public servants are those public employees who:
- perform 'public duties' of an administrative nature in the relevant state or local administrative bodies; or
- perform more demanding accompanying tasks in the relevant state or local administrative bodies, which demand a knowledge of the bodies' public duties.
Public employees who perform other accompanying tasks in state or local administrative bodies are regarded as 'professional technical public employees', and not as public servants
Common principles and elements
The first part of the LPE concerns the whole public sector, thus covering all of Slovenia's 150,000 or so public employees. It is the smaller part of the new law, accounting for only only 21 out of the LPE's 204 articles. Among other matters, the first part of the LPE contains common principles concerning both collective and individual labour relations in the whole public sector, and we focus on these provisions here.
In bodies of state administration and other state bodies, the employer is the Republic of Slovenia. In local community administrations, the employer is the local community. In both cases, the rights and duties of the employer are exercised by the 'principal' (ie the head of the relevant body, such as a minister). In other public law bodies - public agencies, public funds, public institutions, public economic institutions and others - the rights and duties of the employer are exercised by the management body.
LPE lays down the principle of 'subsidiarity' in terms of general sources of labour law. Public employees are covered by general labour legislation, such as the Law on Labour Relations (SI0206101N) and general collective agreements. Special laws such as the LPE determine the particularities of labour relations for certain sectors or groups of employees. The LPE - the most important of these special laws - is a complementary legal source to general labour law. In its first part, the LPE regulates the common elements of employment law for all public employees in the whole public sector. In its second part, it regulates completely the specific system of employment law for public employees in state bodies and the administration of local communities. The application of the general labour legislation to all public employees is seen as necessary in order to ensure the coherence of labour relations for public employees, and to guarantee basic safeguards which, under labour law and international treaties, cover all employees regardless of whether they are employed in the private or public sector.
The pay system for the public sector is regulated by a separate special law - the Law on the Pay System in the Public Sector, which parliament passed on 7 May 2002 and which will come into operation on 1 January 2004.
The LPE determines that the contractual freedom of individual employers in the public sector is limited. Employers cannot give public employees greater rights than are determined by law, regulations related to the law or collective agreement, if this would place a burden on public funds. This is important deviation from the principles of general labour law. It ensures the unity of the regulation of the rights and duties of public employees, which have financial consequences for the state budget and other public funds.
Public employees have the rights to organise, to engage in trade union activity, to collective bargaining and to strike. The way in which the right to strike may be exercised and the limitations on strikes in order to protect the public interest are determined by a separate law.
Specific provisions for state bodies and local administrations
The second and larger (183 out of 204 articles) part of the LPE regulates the system of employment of public employees and public servants in state bodies and in the administration of local communities. Out of the total of 150,000 public employees, it covers: around 32,000 public employees employed in the bodies of state administration; around 2,000 public employees in other state bodies; and around 3,000 public employees in the administration of local communities.
This part of the LPE also regulates the particularities of labour relations for public employees in this sector. The employment relationship in state bodies and in the administration of local communities is in general regulated by general labour law, and a special collective agreement may in future be concluded for state bodies and local administrations. In this way, the employment relationship in this sector is to be brought closer to the employment relationship in the private sector. Therefore, this part of the LPE regulates only those labour law matters where deviations from general labour law and from the freedom to engage in collective bargaining are necessary in order to protect the public interest.
A future collective agreement for state bodies and the administration of local communities may regulate all matters which are not regulated by the law, and all matters concerning the execution of the law. In this way, a gradual transition to a system of collective bargaining is made possible by the LPE.
The LPE regulates the protection of public employees' rights arising from the employment relationship (or employment contract). The LPE determines that if the employer does not fulfil its obligations or violates the rights of public employees, these employees have the right to demand that the employer ends the relevant violation or fulfils the obligations. In response to such a demand, the employer must issue a decision, in writing, setting out the reasons. If employees are not satisfied, they may lodge a complaint against the decision, if the law does not determine otherwise. Such complaints are referred to the competent 'commission for complaints arising from the employment relationship' (the LPE sets up a number of such commissions for various categories of public employees) for a ruling. Employees may appeal against the commission's ruling in the labour court. The employer and the public employee may also agree to use arbitration to resolve an individual dispute if the future collective agreement for the sector provides for such a system of dispute resolution
The LPE provides for the creation of a permanent body for social partnership in state bodies and the administration of local communities. The composition and the functioning of this body is to be regulated by the future collective agreement for the sector. On the employer side, the body will include representatives of bodies of state administration, other state bodies and local administrations. On the employee side, the body will include representatives of the representative trade unions for the sector or professions.
Also in the social partnership area, the LPE contains an obligation on the employer to include representative trade unions in the procedure for adopting regulations and internal documents which concern certain interests of public employees. Before passing regulations which affect labour relations or the situation of public employees in state bodies and the administration of local communities, the government or the competent minister must give an opportunity to the representative trade unions for the sector or professions to give their opinion. The principals of particular bodies are covered by a similar obligation. The employer must take the unions' opinion into account or invite the representative trade unions to discuss the reconciliation of views. If the employer cannot take the unions' opinion into account, it must explain the reasons in writing.
Employment relationships in state bodies and the administration of local communities are based on a contract of employment and the LPE determines the components of such contracts. These are the same components as laid down in general labour law, but the LPE provides additionally that the employer may, in accordance with the law, unilaterally change the individual components of the contract. For example, if a public employee in this sector is promoted to a higher position or pay class, or demoted, or transferred to another workplace, no new employment contract is concluded, and the employer simply makes the relevant decision. This differs from the position in other sectors - eg if a private sector worker is transferred to another workplace, a new contract is concluded. All employment contracts must set out the employees' annual holiday, working time and notice period, and on these points contracts for employees of state bodies and local administrations must refer to the relevant regulations, collective agreements and general legal instruments.
The recruitment procedure for public servants is based on a public competition. Candidates who meet the competition's requirements are then placed in a selection procedure. The recruitment procedure for 'professional technical public employees' in state or local administrative bodies (ie those who are not public servants) is laid down by the general Law on Labour Relations and the intersectoral collective agreement for the public sector. Employment in such professional and technical positions may be based on passing a prior 'qualification test'- if not, the conclusion of an employment relationship may be made conditional on the successful completion of a probation period of up to six months.
The LPE determines that fixed-term employment contracts can be concluded in the following cases, regardless of the general provisions of the Law on Labour Relations: for political appointments where officials are employed on the basis of personal trust (eg in ministerial cabinets); to replace temporarily absent public employee; for time-limited project work; to cover temporary increases in workload; for 'preparation periods' (see below) and other similar forms of theoretical and practical training; and for the highest posts, such as directors general. Limitations on the conclusion of successive fixed-term employment contracts and provisions on the consequences of violations of rules in this area are as laid down in general labour law.
Young people entering their first employment in state bodies and local administrations undergo a preparation period, on the basis of a fixed-term employment relationship, while studying for the relevant professional examination. The preparation periods are: 10 months for the 'state public administration examination'; eight months for the 'expert administrative examination'; and four to eight months for the 'expert examination for the independent execution of accompanying tasks'. The preparation period may be reduced by up to one third on the proposal of the young person's 'mentor'.
As mentioned above, the LPE (unlike the new Law on Labour Relations) makes it possible for the employer to transfer public employees without their consent (without the conclusion of a new employment contract or an annex to the employment contract) to another workplace for which they fulfil the requirements. Public employee may also be transferred at their own request. Transfer may be permanent or temporary. Temporary transfers may last from a minimum of one month to a maximum of one year.
The LPE regulates the termination of the employment relationship (ie of the employment contract) and this regulation differs in certain aspects from the general Law on Employment Relationships. Regarding the types of termination, the LPE follows the fundamental elements of general labour law (termination by agreement, termination by the employee etc), but it regulates the procedure for some types of termination differently.
It is too early to make final comments about the LPE because it has not yet been tested in practice. However, the LPE doubtless represents a major improvement and a significant achievement.
Because the new law provides for the establishment of permanent body for social partnership in state bodies and local communities, it is worth mentioning that it will be necessary to coordinate the functioning of this body in certain areas with the functioning of the existing Economic and Social Council of Slovenia (Ekonomsko socialni svet Slovenije, ESSS) (SI0207103F).
The social partners were consulted during the preparation of the LPE. Together with the draft LPE, the government sent to parliament a statement by the social partners, in which they stated that they support the LPE, that the consultation procedure was fully and correctly conducted, and that agreement was reached on all issues except a number of the provisions in certain of the law's 200-plus articles. (Stefan Skledar, on behalf of the Institute for Labour Law, University of Ljublana)