Observación (CEACR) - Adopción: 2008, Publicación: 98ª reunión CIT (2009)

Articles 10 and 14(a) of the Convention. Equality of opportunity and treatment in employment and occupation. Free choice of employment. The Committee notes the comments by the Association of Free Trade Unions of Slovenia (AFTUS) attached to the Government’s report, which also raise issues relevant to the application of the equality of treatment principle enshrined in the Migration for Employment (Revised) Convention, 1949 (No. 97). In its comments, the AFTUS raises concerns about the work permit system under which foreign workers issued with an employment permit are given the right to be employed only by the employer who obtained the work permit for them. Workers with an employment permit do not have the free choice of employment until they meet the conditions for obtaining a personal work permit valid for a period of three years or for an indefinite period of time. In the view of the AFTUS, this system is in conflict with article 49 of the Constitution which provides for freedom of work, as well as with the Equal Treatment Act, the Employment and Work of Aliens Act, the Aliens Act, the Employment and Insurance Against Employment Act and the Employment Relationship Act. Moreover, linking a work permit to a specific employer increases opportunities for the employer to exploit the migrant worker and as such constitutes indirect discrimination in employment based on ethnic origin or citizenship, which is prohibited pursuant to section 6 of the Employment Relationship Act (No. 103/2007).

The Committee notes that, pursuant to Government Resolution of 25 May 2006 citizens of the European Union and European Economic Area may be employed in Slovenia without a work permit. Third-country nationals are covered by the Employment and Work of Aliens Act (Acts Nos 66/00, 101/05 and 52/07, hereafter ZZDT) and require an employment permit. The Committee notes that pursuant to the ZZDT, a work permit can be issued as a personal work permit, an employment permit or a permit for work. It notes that a “personal work permit” may be issued for three years or for an indefinite period of time, is renewable and gives free access to the labour market. An “employment permit”, on the contrary, is a work permit tied to the permanent employment needs of employers based on specific vacancies. This type of permit allows a foreigner to find employment only with the employer who applied for such a permit, and is issued for no longer than one year. However, the Government indicates that an employment permit may be issued for two or more employers after the worker has been employed by the first employer for at least six months on the condition that he or she has at least higher education. A “permit for work” is a permit with a time limit fixed in advance on the basis of which a foreigner may find temporary employment or work in Slovenia in accordance with the purpose for which the permit is issued. The Committee further notes from the Government’s report that the foreigner who has at least vocational education and who was continuously employed with the same employer or his or her legal predecessor, as well as the “work migrant” who for two years prior to the application was continuously employed by the same employer may apply for a personal work permit.

The Committee recalls that Article 10 of the Convention requires the State to declare and pursue a national policy designed to promote and to guarantee equality of opportunity and treatment between migrant workers lawfully in the country and nationals in respect of employment and occupation. Article 14(a) of the Convention allows the State to make the free choice of employment subject to temporary restrictions during a prescribed period which may not exceed two years. Based on the above, it appears that certain migrant workers, in particular third-country nationals without vocational or higher education, may not fully enjoy equality of treatment in respect of free choice of employment after a period of two years. In order to be able to assess fully the extent to which the principle of equality of treatment in respect of the free choice of employment is being applied to all migrant workers, the Committee asks the Government to specify under which conditions, with an indication of the applicable legal provisions, third-country nationals with an employment permit and without vocational or higher education enjoy equality of treatment with respect to access to employment, after a period of two years. Please also clarify whether a “work migrant” means a migrant to whom a “permit for work” has been issued. The Committee also refers to its comments on Convention No. 97.

Articles 10 and 12. Equality of opportunity and treatment. Integration of migrant workers. The Committee notes that in its comment, the AFTUS raises concerns regarding the lack of institutions providing information essential for the integration of foreign nationals into Slovenian society. In the view of the AFTUS, integration of foreign nationals must take due account of intercultural dialogue and of the importance of giving information to migrant workers in their mother tongue. The AFTUS further maintains that the substandard housing and living conditions, especially in single-sex hostels, of migrant workers, as well as the frequent violations of the labour law provisions relating to hours of work show a total erosion of the cultural and social life of migrant workers in Slovenia.

The Committee notes the Government’s confirmation in its report that it has not yet implemented systematic measures aimed at the integration of migrant workers and their families. However, the Government draws attention to section 82 of the Aliens Act (107/2006) which guarantees conditions to foreigners who have a resident permit for their integration into cultural, economic and social life, in particular by arranging for language courses, organizing courses and other types of advanced training and professional education, providing information that foreigners need for their integration, especially with regard to their rights and duties, the possibility of personal development and development in society, the familiarization of foreigners with Slovenian history, culture and constitutional order, and by organizing joint events with citizens to encourage common knowledge and understanding. The Act further specifies that state bodies and other bodies, organizations and associations will provide protection against all forms of discrimination based on racial, religious, national, ethnic or other differences of foreigners. The Government further indicates that a draft amendment of the Aliens Act, which is in the process of being adopted, specifies the ministerial responsibilities for providing programmes to implement the aforementioned measures. A decree will also be prepared relating to the integration of foreigners. The Committee also notes that the Government has prepared a number of proposals on educational programmes, research on integration and programmes encouraging intercultural dialogue to be submitted to the European Fund for the Integration of Third-Country Nationals.

The Committee recalls that Article 10 of the Convention requires proactive steps to be taken by public authorities to promote equality of opportunity between migrant workers lawfully in the country and nationals, in both law and practice. An active policy to secure the acceptance and observance of the principle of non‑discrimination by society generally, and to assist migrant workers and their families to make use of the equal opportunities offered to them, is essential. Article 12 of the Convention sets out the type of measures to be taken to promote the effective observance of a policy of equality of opportunity and treatment. These include the contribution made by employers’ and workers’ organizations and other appropriate bodies, measures to inform and educate the public, and other measures to assist migrant workers and their families to exercise their rights and share the advantages enjoyed by nationals. In order to be able to assess more fully how the principle of equality of opportunity is being applied in accordance with Articles 10 and 12 of the Convention, the Committee requests the Government to provide detailed information on the following:

(i)    the measures taken aimed at the integration of migrant workers and to give effect to section 82 of the Aliens Act, as well as their impact on ensuring effective equality of opportunity and treatment of migrant workers, in law and in practice, not only with respect to access to employment and occupation but also with regard to the other matters listed in Article 10 of the Convention;

(ii)   the specific measures taken to provide adequate and effective language courses to migrant workers, to promote intercultural dialogue, and to improve the general housing and living conditions of migrant workers as a means to promote their integration in society. The Committee also refers in this regard to its 2008 observation on Convention No. 97;

(iii) the progress made with respect to the further amendment of section 82 of the Aliens Act, and the adoption of the Decree on the Integration of Aliens.

The Committee is raising other points in a request addressed directly to the Government.

[The Government is asked to reply in detail to the present comments in 2010.]