Contributions and Interviews

New labour law developments

06. 12. 2023

After more than half a year of coordination and negotiations between the social partners, the Law on Amendments and Additions to the Labour Relationship Act (hereinafter: ZDR-1D or the Law) was published in the Official Gazette of the Republic of Slovenia, No. 114/2023, dated 15 November 2023, and entered into force on 16 November 2023. The extensive material of the draft amendments to be discussed, which was originally set by the Government of the Republic of Slovenia, has been reduced from the 63 proposed articles of the amendments to only 39 articles. Most of the amendments are the result of the mandatory implementation of EU directives, but there are also some that have been additionally adopted to provide greater legal certainty for workers or to improve the legal definitions in order to ensure that the law is clearly applied in practice.

This article is not intended to present all the changes to the law, but to focus on a few that raise a number of issues from an implementation point of view. Most of the innovations highlighted below (with the exception of probationary work) are neither the result of the implementation of EU directives, but were nevertheless, according to the proponent of the law, adopted with the aim of improving the employment situation of workers or ensuring a clearer application of the law.

1.  Protection of victims of domestic violence

In accordance with Article 189a. of the ZDR-1D, a worker who is a victim of domestic violence enjoys special protection, namely the right to facilitate the reconciliation of professional obligations and obligations arising from the regulation of protection, legal and other procedures and the elimination of the consequences of domestic violence. This is a norm of principle, which is concretised through three legal provisions, namely Article 67a., which establishes the right to shorter working hours, Article 168a., which establishes the right to five working days of paid absence from work per calendar year, and Article 189b., which establishes a relative prohibition on assigning a worker to work in less favourable forms of work (night work, overtime, etc.).

Although the ZDR-1D provides for the right of a worker who is a victim of violence to shorter working hours, this right is not absolute. An employer may refuse a worker's request if it has a valid reason to do so, but the law does not specify what constitutes a valid reason. We believe that the most common employer's reason for refusal will be based on the impossibility of organising the work process differently, and the question of whose interests are being protected, the employee's or the employer's, rightly arises at this point. The validity of the reason for refusal may be subject to judicial review in the context of the protection afforded to the worker by Article 200(1) and (2) of the ZDR-1 (enforcement of rights against the employer and judicial protection).

Although we consider that it would make more sense, following the example of the right to part-time work for parenthood, for the law to provide for the conclusion of an annex in the case of part-time work for victims of domestic violence, it is clear from Article 67a. that the parties must conclude a new employment contract. This is an unusual solution, whereby the law provides a new reason for concluding a fixed-term contract, but does not recognise the right of an employee who is already in an employment relationship with the employer for an indefinite period of time to suspend the rights, obligations and responsibilities under an employment contract for an indefinite period of time while working under a fixed-term employment contract. Notwithstanding the shortcomings of the statutory provisions, we consider that the exercise by an employee of the right to part-time work, which will nevertheless be for a fixed period only, for reasons relating to the protection against domestic violence, must not place him at a disadvantage and must enable him to resume his employment under the terms of the previous contract after the termination of the reasons for which he exercised his right.

In addition to the above, a worker who is a victim of domestic violence is also entitled to five working days of paid time off work in each calendar year, which is to deal with protection, legal and other proceedings and the consequences of domestic violence. The law does not require that the use of this right be in a cumulative series, so the worker may also use the right for several days at a time or for several days in total (not more than 5 days in total in a year). The employer will not be able to refuse to allow the worker to use the leave if the worker informs the employer of his/her absence at least three working days before the absence and if the worker provides evidence that he/she is a victim of domestic violence, as well as evidence that he/she is required to deal with matters related to his/her status. While the law provides for sanctions for a worker who uses this right for a purpose unrelated to the management of his/her status, we note that, in order to achieve the purpose of this legal provision, it would also be reasonable to provide for an obligation for the worker to provide the employer with evidence of his/her management of his/her status after having used his/her right to paid leave. Otherwise, the punitive sanction will rarely be implemented.

The last of the rights of workers who are victims of domestic violence is set out in Article 189b., which concerns protection in relation to working time and night work. The law does not provide for an absolute but a relative prohibition, which means that, with written consent, a worker will be able to work overtime, irregular or temporarily staggered working hours and also at night. A worker who gives consent once may also withdraw it later.

2. Procedure for ordinary dismissal for unfair dismissal

As regards the procedure for ordinary dismissal for guilty reason, a new period of notice is provided for in the event that the worker, after having been given a written warning, repeatedly breaches his contractual and other obligations under the employment relationship. The period during which the employee may not again breach his obligations is reduced from one year to six months, and the maximum period that may be fixed by the branch collective agreement is reduced from two years to 18 months.

It should be noted that some branch collective agreements set the period during which an employee may not again breach his contractual obligations at a longer period than the statutory period (two years), which raises a legitimate question, whether, until the collective agreements are brought into line with the above amendment, the new maximum period (18 months) can be applied in those sectors where the collective agreement lays down a two-year period, or whether the period laid down in the collective agreement will be deemed null and void and the six-month period will therefore apply exclusively. Since the intention of the law was to shorten the maximum permissible period, the provisions of the collective agreement should be interpreted accordingly (until the collective agreements are brought into line with the law).

In addition, the law also provides for a new procedure regarding the issuance of a written warning prior to dismissal, whereby the employee will have the right to make a statement in relation to the warning received as soon as it is received, and not only at the time of the summons to defend against ordinary dismissal for guilty reason, as has been the case until now. The employee will have the right, after having received the warning, first to state whether or not he wishes to defend himself in respect of the allegations within a period of 3 working days and, if he so requests, the employer will have to give the employee the opportunity to defend himself within a period of not less than 3 working days and not more than 30 days and then to give the employee a final reasoned decision within a period of 8 days. The procedural complication and the imposition of additional time limits seem to be completely pointless and will lead to a considerable unnecessary administrative burden in practice. In our view, the purpose of the legislative amendments will already be achieved by the employer warning the employee in writing of his right to make a statement and at the same time setting a time limit for the employee to make a defence, which, if the employee makes a defence, the employer will have to comply with. Given that written warnings are not always served in person and that service is often affected by post, it can certainly be challenging to comply with all the legal deadlines.

3. Probation period

The institution of probation has always evolved over time and this amendment to the law is no exception. While the amendment is a consequence of the implementation of Directive 2019/1152/EU, it is, in our view, rather flawed.

With regard to probationary work, the law provides that in the case of a fixed-term contract, it may be determined in proportion to the duration of that contract and the nature of the work, while it remains unclear how the proportion will be calculated. Given that probationary work may last for a maximum of 6 months, it could be concluded that it can only be agreed for this maximum duration in the case of an open-ended contract. But how to determine the pro rata in the case of fixed-term contracts? We believe that the statutory provision could be interpreted as meaning that the maximum duration of probationary work can be fixed even in the case of fixed-term contracts, provided that these are concluded for the maximum permissible period (two years). A shorter duration of a fixed-term contract would also result in a shorter probationary period (in the case of a fixed-term contract of one year, such a probationary period would be a maximum of three months, etc.). However, the nature of the work must also be taken into account when determining the duration of the probationary period, which could mean that the duration of the probationary period decreases as the level of difficulty of the work decreases.

It should, of course, also be noted at this point that some branch collective agreements already provide for a maximum duration of probationary work. Most collective agreements link the duration of probationary work to the grade of the job (e.g., as in the Collective Agreement for the Woodworking Industry), but some also make the duration of probationary work dependent on the duration of the employment contract (e.g., the Collective Agreement for the Trade Industry of Slovenia). Despite the existing arrangements, further collective bargaining will be necessary, as the law provides that both criteria, the duration of the contract and the nature of the work, must be taken into account when determining the duration of probationary work.

4. Right to disconnect

The right of disconnection guarantees that the worker will not be at the employer's disposal during the period in which the right to rest is exercised or during periods of justified absence from work. The law does not specify what is covered by this right, as this will also be subject to collective agreement or regulation in an internal act.

Where the limits of this right lie is, of course, open to debate. It will not always be viable for an employee to simply "disconnect" at the end of the working day in such a way as to be completely unreachable by the employer. Situations may vary from the employer having unforeseen circumstances that require it to inform the employee of some important information that he needs to know in order to carry out his work the next day. An unforeseeable situation may arise on the same day and the employee's failure to respond (even during his rest period) could seriously jeopardise the business or existence of the employer.

However, the provision of measures to guarantee the right to disconnect in collective agreements may also lead to a hollowing out of the right itself, as it will soon be the case that a "disconnect" in one collective agreement is more protected and therefore more valuable than a "disconnect" in another. The right to rest is, after all, universal and should be guaranteed to all workers equally, regardless of the sector in which they are employed.

5. Conclusion

With regard to the above-mentioned legislative amendments, we have highlighted only a few legal problems, the solutions to which will certainly be found in their implementation in practice. Since the purpose of the legislative amendments is to ensure greater legal security for workers, it would of course be correct and logical to interpret any ambiguous provisions in line with this purpose.

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