The Posting of Workers from Slovenia: some Particularities and Problems

The article first presents the legal background of the posting of workers that defines the status and legal definition of working abroad or working temporarily in another EU or EEA member state. It then investigates the problems and issues that this legal category of the cross-border provision of services raises in practice, citing cases of posting from Slovenia. The authors use specific cases to study two areas of systemic problems: administrative and executive. The starting point of the article is that postings expose various problems and issues in different EU member states, linked to the particularities of the labour markets; specific labour, social and other legislation; the activities of the competent public institutions and their mutual cooperation.

KEY WORDS: posted workers, labour migration, EU labour market, Slovenia, legislation

SUMMARY

THE POSTING OF WORKERS FROM SLOVENIA: SOME PARTICULARITIES AND PROBLEMS

Nataša ROGELJA, Kristina TOPLAK, Mojca VAH JEVŠNIK,  Jernej MLEKUŽ

The starting point of this article is that the posting of workers exposes various problems and issues in different EU countries that are linked to the particularities of the labour markets; specific labour, social and other legislation; the activities of the competent public institutions and their mutual cooperation, etc. The article focuses mostly on the issues and problems of postings from Slovenia, while of course touching upon other dilemmas and reflections of postings in the EU, and partly beyond. The article first presents the legal background of the posting of workers that determines the status and legal definition of working abroad or working temporarily in another EU or EEA member state. Later, the article investigates the problems and issues that this status and the legal category of the cross-border provision of services raise in practice, in the case of posting from Slovenia. Here the authors use specific cases to study two areas of systemic problems: administrative and executive. On the administrative level, the problems appear particularly in the non-selective issuing of the A1 form with the intention of the temporary posting of workers to companies. The A1 form, which is a required element in the bureaucratic process for posting workers to other member states and is the basis for the posted worker’s health insurance, is also issued to so-called “letterbox companiesˮ, which post workers to other states despite having their bank accounts blocked or closed in Slovenia. These problems are further expanded in the specific national context in which Slovenia has taken on the role of a transition state through which workers, mostly those from Bosnia and Herzegovina working for Slovenian employers, are posted to work in other member states. Here, a series of irregularities have appeared which are exacerbated by the vulnerable condition of Bosnian workers who are not citizens of Slovenia and speak Slovenian poorly or not at all. On the executive level, the article deals with the problem of the long-term and ineffective process in cases where the employer does not pay wages to and/or social security contributions for the worker. The workers can report violations connected to cessation of paying wages and contributions to the Slovenian Labour Inspectorate or Labour Court. Before the case hearing, the prosecution must gather evidence, which in some cases can take up to four years. In addition to lengthiness, the practice also shows the ineffectiveness of the procedures, where, for example, the plaintiff may remain without compensation despite the judgement being legally effective. Judgements often cannot be enforced, for example, because the company that employed the worker (and paid the worker’s wages) no longer exists.