Drafting of the law on seasonal employment, which Mašina covered lately, entered a new phase. The draft’s name has been changed and the working group expanded, but the essence of the legal proposal, which provoked most disputes between trade unions and labour law experts on the one hand, and the draft’s proponents on the other, remains the same.
The Law on Simplified Work Engagement on Seasonal Jobs in Certain Activities, as the future law might get to be named, will give employers an opportunity to hire domestic and foreign workers in several industries under extremely flexible conditions that do not guarantee much rights to workers.
We talked about the legal proposal the Ministry of Labour submitted to the working group with Mario Reljanović, professor at the Institute for Comparative Law in Belgrade.
Given that the Labour Law and the Law on Agency Employment already regulate short-term employment, what would be the purpose of the new legal proposal?
The law is aimed to regulate employers’ increased demand for workforce, but that need is already regulated by the Labour Law in a completely satisfactory, classic way that exists in all countries in the world – through hiring within a fixed-term employment relationship.
Article 37 of the Labour Law stipulates that a fixed-term employment contract may be concluded “for establishment of employment whose duration is predetermined by objective reasons that are justified by the time period or execution of a certain chore, or occurrence of a specific event, during existence of those reasons”. What, in that case, might be the actual purpose of the new law, when it will regulate something that has already been regulated?
The purpose is, of course, to push all employees in certain industries into the status of those engaged without employment contracts, in order to make the workforce vulnerable and cheaper for the employer.
How far does this nonsense go is also clear from the fact that the draft law “simulates” employment relationship when it comes to certain labour rights. In other words, it regulates some rights in far more detail than the existing law regulating the so-called seasonal jobs. It even defines the right of temporary workers to social insurance, stepping away from the usual practice in that respect.
Nevertheless, that still comes to nothing, because the basic rights related to the cost of work per worker clash with the Labour Law. Namely, apart from the guaranteed minimum price of labour per working hour, nothing else guarantees equality of temporary engaged persons with those with employment contacts. On the contrary, absence of some rights (for instance, the draft law skips to allow for any basis for salary increase, so that the same compensation is paid for each working hour based on Article 21 of the draft) makes overexploited and underpaid labour out of these workers.
What rights would this law grant to workers?
There are norms there that mean nothing. For example, it is said that employees will have the right to an impartial dispute resolution – what does that even mean? They won’t enjoy the right to initiate a labour dispute because they will not be employed, and in an ordinary rights lawsuit they will not be able to protect any work related rights, which makes it cynical to even put such a provision in the law.
Article 27 of the draft “elaborates” this right, which in fact allows a worker the following: to address the Republic Agency for the Peaceful Settlement of Labour Disputes, which isn’t actually a benefit, given the inefficiency and poor regulation of the Agency’s activity; and to request a written statement from the employer in case that the latter fires a worker or applies other measures that put the employee in a less favourable position – which is a particularly cynical solution because that written statement cannot be used in any further procedure the employee might turn to in order to protect their rights.
Easier hiring of foreign workers has often been mentioned lately as a possible reason behind passing amendments to the existing law. How does that seem to you?
One of the main motifs for passing this law is revealed in Article 6, paragraph 4 of the draft, which provides for employment of foreign nationals: “A foreigner who does not need a visa to enter the Republic of Serbia in accordance with the visa regime may be employed in jobs in in accordance with this law, without the obligation to obtain a work permit for foreigners in accordance with the law governing the work of foreigners, during a short stay in the Republic of Serbia in accordance with the regulations governing the stay of foreigners.”
This is probably the most scandalous solution in the draft, since it completely derogates from the Law on Foreigners and the Law on Employment of Foreigners, i.e. the procedure for obtaining a work permit for foreigners.
This legitimizes the system of illegal employment of foreign workers from 95 countries whose citizens can enter Serbia without a visa, including destinations which immigrant workers traditionally come from (such as India and Turkey). Foreigner’s undeclared work has been present to a great extent lately, which was reported to us by the labour inspection on several occasions.
Bearing in mind that foreigners are mostly found without working permits while performing jobs in civic construction sites, moreover working in infrastructure facilities the state paid private companies to build or reconstruct, this translates to legalizing an illegal practice that has existed so far.
Such a legal solution us completely immoral, and it might lead to a further collapse of occupational safety standards. Occupational safety is only nominally covered by this law and it will not be possible to properly control it in case of mass engagement of foreign citizens, not to mention complications stemming from this law’s conflict with other laws.
The draft law has largely elaborated the part that talks about digital registration and deregistration of workers. The lack of written contracts has been a subject of harsh critique so far; now the proposer is introducing information systems as a substitute.
It is not entirely clear what the parallel records of these jobs are for, why not use the Central Register of Compulsory Social Insurance (CROSO)? It seems to me that there are no reasons to introduce the information system of the Tax Administration, in addition to the functional CROSO – we should pay attention to the justification for this decision, if any occurs.
Finally, the question arises as to how the decimated labour inspection will monitor the application of these complicated rules, especially when it comes to the duration of continuous work or work during one calendar year? It is quite certain that this law will not solve the problem that was stated as the primary basis for its creation (although it hardly gets mentioned any more) – namely, undeclared work – and that abuses in the application of the law will be huge.
Do you find any benefits for workers in the draft law?
Let me mention one good legal solution, in the Article 24. It is nice that the legislator remembered to preserve some of the social rights of workers who work in this regime. It is indicative, however, that all the related benefits will be paid for by the state, meaning that the financial interests of the employers, who won’t be financially burdened with maintenance of the mentioned rights, are left unscratched.
Translation: Iskra Krstić
This article was ORIGINALLY PUBLISHED in Serbian on May 26, 2021.
