The recently adopted ZZSDT, which enters into force on 1 September 2015, sets out new conditions for the employment, self-employment and work of foreigners and indirectly transposes the relevant EU Directive into national legislation. The so-called "one-stop shop" principle, which has so far been established only with regard to highly qualified occupations (EU Blue Card), is now available for all third-country job seekers in Slovenia.
The purpose of the redefined conditions is to protect foreign workers against abuses of the law that have been repeatedly identified in the past. In order to prevent such violations, employers in breach will also be subject to costlier penalties.
New legal background for foreigners working in Slovenia
Adopted in June 2015, the new Employment, Self-Employment and Work of Foreigners Act (Zakon o zaposlovanju, samozaposlovanju in delu tujcev; "ZZSDT") aims at harmonizing local legislation with EU acquis in the field of employment and work of non-EU citizens (i.e. foreigners respectively third-country nationals). The ZZSDT was primarily adopted in order to align with the provisions of the Foreigners Act (Zakon o tujcih; "FA"), which transposed the provisions of the Directive 2011/98/EU ("Directive"). Following the provisions of the Directive, a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State was also set in the Slovenian legal system in 2011. The Directive tends to reconcile national laws in the field of residence of foreigners in Member States and establish a common set of rights for such third-country nationals legally residing in a Member State.
Other changes brought about by the new legislation framework inter alia address abuse prevention, protection of the rights of foreigners who are employed or work at Slovenian employers, reduction of administrative barriers, and higher penalties for breaches.
The implementation of the "one-stop shop" principle for foreign workers is one of the major legal novelties that have been introduced by the newly adopted legislation. Under the pre-existing legal system, foreigners who wanted to work in Slovenia had to apply for both a residence and a work permit, separately, at two different authorities. The FA and ZZSDT now simplify permitting procedures by introducing a single permit application procedure for third-country nationals, which encompasses both the resident and the work permit. The requirement for foreigners needing double permits has thus become redundant with the introduction of the single permit system. The establishment of a single permit concept not only simplifies the application procedure, but also speeds up the entire process. Applicants (foreigners or employers) shall no longer be required to wait for the issuance of the work permit in order to apply for the residency permit. From now on, the employment and residency aspects will be decided simultaneously. Such procedure also allows applicants to request for the necessary permits at one place, through the one respective administrative unit.
However, seasonal work permits for up to three months are exempted from the single permit procedure, as foreigners - citizens of third countries - shall no longer be required to obtain residency permits for seasonal work. These workers can now reside in Slovenia on the mere basis of the seasonal work permit, which will be issued by the Slovenian Employment Office (Zavod za zaposlovanje).
In addition to the implementation of a single permit application procedure, further important legislative amendments have been enacted. Some of these comprise:
- The general provision of only full-time employment being permitted in case of employing a foreigner;
- The verification that the employer is not subject to any insolvency proceeding or respectively has settled all tax liabilities represents a new and additional condition that must be fulfilled in order to be able to employ a foreigner;
- An entirely new regime for self-employment of foreigners (the preliminary procedure to obtain a personal work permit has been struck);
- Unlike under the previously applicable set of rules, the employer will no longer be obliged to notify the Employment Office of a job vacancy, which formerly represented a prerequisite to obtaining the work permit.
The ZZSDT provides for significantly higher pecuniary penalties for violators: employers now face penalties between EUR 3,000 and EUR 30,000 (in some cases even up to EUR 75,000) for non-compliance with the provisions under the new act. The height of the penalty will be imposed depending on the type and severity of the offense committed.
The most serious infringements may also result in the prohibition of employment, self-employment and work of foreigners. In addition to the violations of ZZSDT's provisions, such sanction also applies to breaches under the Slovenian Employment Relationship Act (Zakon o delovnih razmerjih) and the Prevention of Undeclared Work and Employment Act (Zakon o preprečevanju dela in zaposlovanja na črno). However, in comparison to the previously applicable criminal provisions in this field, the length of the duration of the prohibition is shortened from one / three years to a maximum of one respectively two years.
Facilitation of application procedures does not mean employers are less liable
With the introduction of ZZSDT, the process of employing foreigners has been substantially simplified through the elimination of unnecessary administrative barriers. However, the aim of preventing abuses of legislation regarding the employment of foreigners has resulted in the implementation of stricter measures. The newly prescribed conditions for the employment of foreigners that have to be met by employers (and foreigners) are one of the actions to pursue that goal. Employers should therefore be even more careful in the course of employing third-country nationals and must abide by the law to avoid stricter penalties.