Worker participation - Slovenia

Introduction

In Slovenia, both worker participation (in works councils, through health and safety representative, workers’ representatives in company managements and other forms) and financial participation (worker participation in the business results of the company on the basis of work, usually in the form of participation in profit-sharing) are present. Worker participation is exercised both directly (through the workers themselves) and indirectly (through workers’ representatives). Worker participation is determined as voluntary – the rights to participate are established through the legislation but workers decide whether or not to exercise them.

Structurally, Slovenia has a two-tier system as trade union representatives and workers’ elected representatives are both present at the company level. Trade union representatives have the right to be informed and consulted on certain matters and elected representatives have the right to be informed and consulted and to participate in management (their rights and obligations overlap to some extent).

Regulatory Framework for Worker Participation

The ILO, the Council of Europe and the EU impact Slovenian legislation in different ways and thus the workers' right to participation through their acts.

As a member of ILO, Slovenia ratified a certain amount of conventions that are relevant to the operation of workers' representatives and employee participation.

In the framework of the Council of Europe, there are two important documents that are relevant to employee participation: the Convention on Human Rights and Fundamental Freedoms ^[1] and the European Social Charter (revised) ^[2].

The EU has accepted a set of directives concerning the informing, consultation and participation of workers that are transposed into Slovenian legislation.

Informing and Consultation

In the scope of the ILO are two documents that are relevant for the informing and consultation of workers: Recommendation R 94 ^[3], which constitutes conditions for cooperation and consultation at the level of undertaking, and Recommendation R113 ^[4], which sets out information and consultation as grounds for the establishment of good relations between the social partners.

Article 21 of the European Social Charter (revised) ^[2] specifically determines the rights of workers to be informed about the economic and financial situation of the undertaking and the right to be consulted on decisions that could affect their interests, especially their employment status.

Directive 2009/38/EC ^[5] has eliminated certain shortcomings (e.g. management only informing workers and consulting with them after decisions have already been made instead of before; some managerial workers have reported that the speed of their decision-making is more difficult because of the previous derivation of all the procedures under this Directive) of the old regime of European Works Councils (established by Directive 94/45/EC ^[6]). The competence of the European Works Council and the scope of the information and consultation of employees under this Directive is limited to transnational issues, i.e. matters affecting the undertaking or integration of undertakings at the EU level or at least two companies in two Member States. It is specifically determined that this Directive doesn’t intervene with procedures of informing and consultation from Directive 2002/14/EC (see below). Slovenia has transposed this Directive into Slovenian legislation with the European Works Councils Act ^[7].

The obligation of the management to consult with workers’ representatives in good time in the event of collective redundancies is determined in Directive 98/59/EC ^[8].

The requirements of Directive 2002/14/EC ^[9] apply to companies with more than 50 workers. The Directive sets the minimal framework for the content and method of information and consultation in all undertakings in the EU; the confidentiality of information; the protection of workers’ representatives and their rights. Informing and consulting includes three main areas: economic, financial and strategic development (Article 4 of the Directive). Together with Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to safeguarding employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, Slovenia has transposed this Directive into the Worker Participation in Management Act ^[10].">Since Slovenia had already developed the system of worker participation by the time this Directive was accepted, it didn’t require as many legislative changes as in some other Member States, where the system was still in progress.

The right of workers to be involved in the management of health and safety at work is determined in Article 11 of the OSH Framework Directive 89/391/EEC ^[11]. Transposition of this provision into the national legislation of Member States varies considerably. The OSH Framework Directive is transposed into Slovenian legislation by The Health and Safety at Work Act ^[12]. This Act obligates the employer to give employees the opportunity to participate in discussions on all issues relating to health and safety at work, in accordance with this Act and other regulations. The employees exercise this legally given right directly, through their representatives in the works council or with a health and safety representative, in accordance with the regulations governing worker participation in management. For the election of a health and safety representative, the rules governing workers' participation in management apply. This means the following:

• in undertakings with up to 20 employees, a health and safety representative can be elected that also deals with issues concerning occupational health and safety (this is optional, meaning that there is no legal requirement to have a workers’ representative dealing with OSH, because workers can exercise this right in various ways, e.g. directly with the assembly of workers if convened),
• in undertakings with more than 20 employees, a works council can be elected (also optional, workers decide whether to establish a works council or not) and one of its members covers issues concerning occupational health and safety.

The Health and Safety at Work Act ^[12] obligates employers and employees and their representatives to inform each other about all issues concerning health and safety at work and to consult and co-decide in accordance with this Act and the regulations on workers' participation in management.

Slovenian legal sources for workers’ participation are:

• the Constitution of the Republic of Slovenia (Article 75 represents the foundation for the regulation of the entire system of worker participation) ^[13],
• the Worker Participation in Management Act ^[1] as the central regulation for worker participation in management,
• the Employment Relationship Act ^[14], which contains protective provisions for workers' representatives,
• the Companies Act ^[15] doesn’t address workers’ participation directly but is important because it regulates the legal status of companies in which workers’ participation takes place,
• the Health and Safety at Work Act ^[12] regulates workers’ participation concerning occupational health and safety,
• the Banking Act ^[16] governs specifics of worker’s representatives in the management bodies of banks,
• the Insurance Act ^[17] governs specifics of worker’s representatives in insurance company management boards,
• the European Works Councils Act ^[7],
• the Participation of Workers in the Management of the European Public Limited-Liability Company Act (SE) ^[18] regulates worker co-management in Societae Europaea,
• the Worker Participation in the Management of the European Cooperative Society Act ^[19] regulates worker co-management in Societas Cooperativa Europea,
• the Act Regulating Employee Participation in Decision-Making in Cross-Border Mergers of Limited Liability Companies ^[20] establishes worker co-management in the management and supervisory bodies of companies established through cross-border mergers of limited liability companies,
• the Representativeness of Trade Unions Act ^[21] determines the criteria for representative trade unions that have certain rights to exercise under the Worker Participation in Management Act ^[10] regarding worker co-management,
• the Financial Participation Act ^[22] governs employee participation in profit sharing and gain sharing,
• the criminal code ^[23] criminalizes the act of the infringement of rights to participate in management,
• the Labour and Social Courts Act ^[24] governs collective labour disputes involving worker co-management,
• the Minor Offences Act ^[25] contains provisions of offenses,
• the Arbitration Act ^[26] governs the settlement of disputes by arbitration.

OSH and Worker Participation

Workers’ participation (through trade union representatives – trade union democracy and through works councils – industrial democracy) provides social dialogue. The impact of the social partners on social and economic relations (and thus OSH) in Slovenia is present at various levels: national, cross-industry, sectoral and company.

National Level

Regarding the OSH related aspects, there are two important consultative bodies on the national level: the Economic and Social Council ^[27], which is the main consultative and coordinative institution for social dialogue in Slovenia, and the Council of Health and Safety at Work as the advisory body to the Slovenian Ministry of Labour, Family, Social Affairs and Equal Opportunities on all matters concerning OSH.

Economic and Social Council

The ESS/ESC or Economic and Social Council is a national advisory body for all economic and social issues. It was established with the Agreement on Wage Policy in the Economy for the year 1994 (separate social agreement) ^[28] and operates according to the Rules of Procedure of the Economic and Social Council ^[29].

It represents a form of communication between employers' associations, trade unions and the Government of the Republic of Slovenia in the areas of employment, the wage system, rights from labour relations, the collective bargaining system, trade union rights and freedoms, worker participation, legal security, cooperation with the ILO and the Council of Europe and others.

Composition The ESC of Slovenia is organised following the ILO pattern of tripartism. The Economic and Social Council consists of employers' and trade unions’ associations and the Government of the Republic of Slovenia. Each of the categories of social partners and the Government of the Republic of Slovenia can have up to eight members, as well as alternate members, within the ESC. The ESC is currently made up of 24 members and their alternates. The initial number of 15 members (5 per group) was changed due to the increased number of trade union associations, fulfilling the criterion of representation at the national level.

The Government of the Republic of Slovenia is represented by the state secretary in the Prime Minister's office, six ministers (of labour, family, social affairs and equal opportunities; of finance; of economic development and technology; of interior and public administration; of education, science and sport; of health) and the director of the Institute of Macroeconomic Analysis and Development ^[30]. The employee and employers’ associations group for the most part is made up of the chairs of their respective organisations or other persons of high rank.

The president of the ESC and the deputy are appointed upon the nomination of partners. The groups take turns in nominating the president and his deputy. Each member of the group has the right to a one year term of office. Within each of the social partner groups, the members can agree to subdivide this into shorter periods, but only the trade union confederations have made use of this option so far. The employers' organisations take their presidency in turns.

The Role and Operation of the ESC The ESC was primarily set up to deal with matters of an economic and social nature.

In addition to its advisory role, the ESC plays a key role in negotiations for social agreements and, until some years ago, also wage policy agreements, which were adopted within the sphere of its activities. So far, four social agreements have been adopted through the ESC, the latest being in October 2007, which also contained a whole chapter about health and safety at work.

The ESC examines draft legislation covering the entire spectrum of economic and social relations between employers and employees. In this respect, the agreement reached between the social partners on pension system reform, The Collective Agreements Act and the Employment Relationships Act, are considered major achievements.

The ESC also examines strategic development papers put forward by the Government of the Republic of Slovenia such as Slovenia's development strategy and the economic and social reform package to enhance the competitiveness of the Slovenian economy. The ESC was also consulted on the reform programme for the implementation of the Lisbon Strategy and then on the yearly reports on the implementation of the programme. In 2011, the ESC discussed the National reform program connected to the Europe 2020 Strategy and was also acquainted with the Euro pact.

The practice of the Government of the Republic of Slovenia consulting social partners was developed already in the early stages of drafting documents. This work is mostly done in expert groups, which all social partners consider very useful. In 2010 and 2011, the new Health and Safety at Work Act was discussed in this way in the ESC.

The ESC is also active regarding international cooperation with the European Economic and Social Committee, other national economic and social councils, the ILO, etc.

ESC decisions are reached by consensus and are binding for all the authorities and bodies of the social partners.

Cross-Industry and Sectoral Level

The most important form of social dialog at these levels is collective bargaining (a process in which the trade unions and employers’ associations are involved to reach an agreement on wages, working hours and other conditions of work and employment) and drawing up collective agreements, which are mainly governed by the Collective Agreements Act ^[31].

Collective agreements at the cross-industry and sectoral level are concluded on behalf of the employees by representative trade unions and on behalf of the employers by representative employers' organisations on all matters concerning conditions for work and employment.

A collective agreement may provide only more favourable conditions for workers regarding the rights and obligations under employment, except in a case when the Employment Relationships Act stipulates otherwise. Safety and health at work is one of the areas subject to negotiations between employee and employers’ associations for more favourable provisions.

The Public Sector Civil servants have the right to collective bargaining (Article 18 of Civil Servants Act ^[32]). The Public Sector Salary System Act [33] has determined mandatory collective bargaining on the wage system in the public sector.

The main distinction between collective bargaining in the public and private sectors is that the state enters the social dialogue in the public sector as an employer.

The participation of civil servants in decision-making in the public sector is subject to regulations that only partially govern this issue in comparison to the private sector.

The Company Level

In Slovenia, at the company level, there is a general law that covers the area of worker participation and involvement: the Worker Participation in Management Act ^[1]. The Health and Safety at Work Act ^[12] is a special law regarding the Worker Participation in Management Act ^[1] and includes provisions on worker participation when dealing with issues of health and safety at work.

Indirect Participation

Works Council

‘’’Regulatory Framework’’’ Article 3 of the Worker Participation in Management Act ^[10] defines that rights concerning worker participation and involvement are executed by the worker as an individual or through a works council or workers' representative, workers' assembly or workers' representatives in company bodies.

The Worker Participation in Management Act ^[10] defines that a works council shall be formed in all companies with more than 20 employees who have the right to vote. In companies with up to 20 employees with the right to vote, a workers representative must be elected.

‘Companies’ in this context means commercial companies (irrespective of the type of ownership), cooperatives, economic public service (in the field of energy, municipal management, water management, transport and communications), banks and insurance companies (unless stipulated otherwise by a separate law).

According to this law, workers in institutes can only exercise their right to participate in management as individuals, but can also collectively in accordance with a separate law.

This law does not apply to worker participation in European Works Councils, European public limited companies or European Cooperative Societies, unless a special law provides otherwise.

‘’’Composition’’’ In Slovenia, the number of members of the works council depends on the number of employees in the company. The members of the works council are employee representatives elected from a list of candidates nominated by the employees. Members of the works council are elected every four years.

‘’’Elections’’’ The representatives are elected by a direct and secret ballot.

The right to vote for representatives is granted to all employees who have worked in the company for at least six uninterrupted months. Some employees do not have this right, such as: the director, management personnel and company secretaries; the family members of management.

The right to be elected to the works council belongs to all employees who have the right to vote and have been employed in this company for at least twelve uninterrupted months.

Each work council may determine in its rules of procedure that candidates are nominated and elected separately for individual groups of employees such as: women, invalids, young employees, etc.; for individual organisational units; for segments of the working process and for parts of the company located outside the headquarters of the company.

As many candidates are elected as there are members of the council. The candidates who win the most votes are elected.

For the elections of workers' representatives, the Worker Participation in Management Act ^[10] provisions shall apply for the election of members of the works council.

‘’’Duties’’’ The particular duties of the Slovenian works council are: ensuring that the laws, regulations, adopted collective agreements and agreements reached between the works council and the employer are implemented; proposing measures that benefit the employees; receiving proposals and initiatives from employees and if justified taking them into consideration in negotiations with the employer; assisting the disabled, older and other employees entitled to special protection in their incorporation into work.

‘’’Meetings’’’ The Worker Participation in Management Act ^[10] defines that the manner of convening the meetings is to be determined by the rules of procedure of the works council. In Article 62, the Worker Participation in Management Act ^[10] defines that the works council meets during working hours and the company has to allow members of the works council up to five paid working hours a month for their participation in works council meetings.

The works council and the employer must meet at the request of the employer or the works council but generally at least once a month (to exercise the rights and discharge the obligations stipulated by the Worker Participation in Management Act ^[10].

Occupational Committee for Prevention and Protection at Work

‘’’Regulatory Framework’’’ Slovenian legislation doesn’t recognise the term “committee for prevention and protection at work". In Article 45, paragraph 1, The Health and Safety at Work Act ^[12] defines the workers right to take part in discussions on all questions relating to health and safety at work. Paragraph 2 of this article defines that this right can be exercised as follows: by workers directly or through their representatives in the works council (in line with the Worker Participation in Management Act ^[10]) or through a health and safety representative. And paragraph 3 defines that for the election of a health and safety representative, the provisions of the Worker Participation in Management Act ^[1] shall be applied.

Article 47 defines the status of a health and safety representative, who has to have the same mode of work and rights that apply to a works council. This article also defines that workers and their representatives may not be placed at a disadvantage due to exercising the rights referred to in Article 45, paragraph 1 of The Health and Safety at Work Act ^[2].

Article 48, paragraph 5 determines that the employer has to ensure that works council members or the health and safety representative receive adequate training for the execution of their tasks.

‘’’Public Sector’’’ The provisions of The Health and Safety at Work Act ^[12] also apply to the public sector with some exceptions, such as: parts of the military activity of the Slovenian Armed Forces; police work and protection, rescue and relief activities during natural and other disasters carried out by the Civil Protection Service and other rescue services and mining, where individual issues of health and safety at work are governed by special regulations.

‘’’Composition’’’ As already written above, a works council is composed of elected representatives of employees.

‘’’Roles’’’ Article 46 defines the duty of the employer to consult with workers or their representatives on: risk assessment; any measure that might affect health and safety at work; the designation of a safety officer, occupational medicine practitioner, workers designated for first aid, workers or persons authorised under specific regulations governing fire safety and evacuation; informing workers; the organisation of training.

The employer has to present workers’ representatives and trade unions (organised in his undertaking) with the safety statement and risk assessment (document) as well as documents on accidents at work. If there are no elected worker’s representatives and organised trade unions in the employer's undertaking, the employer has to publish these documents in the ordinary manner.

In accordance with Article 48 of The Health and Safety at Work Act ^[12], the works council or health and safety representative may demand that the employer adopt suitable measures and prepare proposals for the elimination or mitigation of occupational health and safety risks.

The works council representative or health and safety representative also not only has the right to be present at any inspection regarding the safeguarding of health and safety at work but also the right to submit observations.

‘’’Effectiveness’’’ Slovenia has no researches made explicitly addressing the effectiveness of worker representation and consultation on OSH.

In 2009, the European Survey of Enterprises on New and Emerging risks (ESENER) was carried out by EU-OSHA. Slovenia participated in the survey. Although ESENER provides an international overview of the literature in connection with the issue of effectiveness of representation on OSH, it also clearly states that “ESENER findings do not provide evidence of the effects of worker representation on objective measures of health and safety performance, because such evidence has not been sought in the design of the survey."

Trade Union Delegation

Trade union delegates are usually employees of the company who are elected or appointed to represent union-affiliated employees in dealings with the employer.

‘’’Regulatory Framework’’’ For the purposes of the Employment Relationship Act ^[14], the trade union at the employer shall be the representative trade union that appoints or elects the trade union representative in accordance with Article 205 of this Act.

The Representativeness of Trade Unions Act ^[21] defines in Article 6 which trade unions are representative and in Article 7 what the rights of representative trade unions are. One of these rights is to propose candidates in accordance with the Worker Participation in Management Act ^[33] or other special regulations.

In Article 203, the Employment Relationship Act ^[14] determines that the employer must grant a trade union the conditions for the quick and efficient performance of their activities in accordance with the regulations protecting the rights and interests of workers. The employer is obliged to grant the trade union access to information that is necessary for the exercise of trade union activities.

According to the Employment Relationship Act <^[14], Article 205, paragraph 1 and 2, the trade union that has members with the employer can elect or appoint a trade union representative. If a trade union representative has not been appointed, the trade union is represented by its president. The employer must be informed of the appointment or election of the trade union representative.

According to Article 206, 207 and 112 of the Employment Relationship Act ^[14], the trade union representatives enjoy special protection such as: protection against the termination of the employment contract (without the consent of the trade union); against a reduction of wages; against the introduction of disciplinary or damage proceedings; against being treated less favourably or subordinately on the basis of trade union activities.

‘’’Powers’’’ The trade union representative has, according Article 205, paragraph 3 of the Employment Relationship Act ^[14], the right to provide and protect the rights and interests of trade union members with the employer. A trade union representative must also, according to paragraph 4 of the same article, carry out trade union activity in a time and manner that shall not diminish the efficient operation of the employer.

‘’’Consultation’’’ Article 10 of the Employment Relationship Act ^[14] defines that before adopting proposals of general acts (laying down the organisation of work or the responsibilities of the workers to fulfil the contractual or other liabilities), the employer has to present them to the trade union at the employer for an opinion. The deadline to make comments is eight days. If the trade union delivers its opinion within the deadline, the employer must discuss it and present its opinion before adopting any general act.

Paragraph 3 of this Article determines that if no trade union is organised at the employer, the employer's general act may lay down the rights that can be regulated in the collective agreements, if they are more favourable for the worker than those determined by law and/or binding collective agreement. In this case, the employer must submit such an act to the workers council and/or the worker representative to obtain their opinion. The workers council and/or the worker representative must submit their opinion within eight days. The employer must examine and take a relevant position on the given opinion, prior to the adoption of such act.

The Direct Participation of Workers in Connection with Well-Being

‘’’Regulatory Framework’’’ Article 3 of the Worker Participation in Management Act ^[10] defines that rights concerning worker participation and involvement are also executed by the worker as an individual (direct participation). Article 4 defines that the right to participate in management must be exercised in particular when making decisions about and influencing the intentions and organisation of work and in the determination and execution of activities designed to improve the conditions of work, humanise the working environment and encourage the successful performance of the company.

Article 85 of the Worker Participation in Management Act ^[10] also determines that the right to participate in management is executed so that the workers are kept informed directly and can make proposals and give opinions directly.

‘’’Procedures’’’ According to Article 88, paragraph 2, the employee as an individual has the right to: give initiatives and receive answers to initiatives if they relate to the job or work or organisational unit; be rapidly informed of changes in the sphere of work; state an opinion on all questions bearing upon the organisation of a job and the work process; ask the employer or the person authorised by the employer to answer questions relating to salaries and other spheres of labour relations and questions relating to the content of the Worker Participation in Management Act ^[10].

The employer is obligated to answer initiatives related to a job or work or organisation unit and questions relating to salaries and other spheres of labour relations as well as questions relating to the content of the Worker Participation in Management Act ^[10] within 30 days at the latest.

The direct participation of workers is also determined in The Health and Safety at Work Act ^[12] in Article 48, paragraph 2. A worker may request an inspection by the competent inspection service if the worker considers that the safety measures taken by the employer are inadequate.

On the other hand, the employer is obliged to inform the works council or health and safety representative and trade unions about the findings, proposals or measures imposed by the inspection bodies.