An amendment to the act on employment services slated to
enter into force on May 1 2018 will have a substantial impact
on the employment of third country nationals.
The amendment establishes simplified conditions for hiring
third country nationals in selected professions where there is
a documented shortage of qualified labour force in districts
with an average registered unemployment rate of less than five
percent. In these situations, when processing temporary
residence permits for the employment purpose, the labour
offices will not take into account whether a particular
position can be occupied preferentially by a Slovak citizen.
Moreover, these positions may be filled without the need to
advertise the job before submitting the application for a
temporary residence permit.
The central labour office should publish on its website by
June 30 2018 a list of occupations affected by the labour
shortage in the districts where the average registered
unemployment rate for 2017 was lower than five percent.
However, the exception provided by the amendment will only
apply to companies that have a workforce comprising a maximum
of 30% third country nationals on the day of submitting the
temporary employment residence permit application.
An employer looking to hire a third country national must
first announce the job vacancy (on the bulletin board at the
labour office, through print media and on the internet). The
amendment has reduced the time period of the announcement from
the original 30 business days to 20 business days. The same
time period of 20 business days applies to the announcement
required for renewing a temporary employment residence
permit.
Employers that engage in illegal employment practices will
not be permitted to hire third country nationals, as only those
companies who have committed no violations of the ban on
illegal employment for a period of two years before filing the
application for the residence permit by the third country
national will be eligible for the employment permit.
The amendment also has a substantial impact on obtaining
work permits and temporary employment residence permits for
employees posted for more than 90 days by employers domiciled
in third countries.
The existing legislation provides for a specific application
regime for this type of work permit, but that regime was
omitted from the amendment. The existing provision has been
retained whereby the labour office can grant a work permit upon
a written application if a job opening cannot be filled by an
applicant registered as a job seeker with the employment
office.
We are unable to say definitively whether this is just a
formulation error or whether the lawmakers intended to retain
the possibility of obtaining an employment permit for posted
workers. We are inclined to believe the purpose was to repeal
this regime because of its long-term abuse. Consequently,
although in theory it will still be possible, in practice it
will no longer be possible to obtain an employment permit and
temporary residence permit in Slovakia for workers posted from
third countries. If these posted workers wish to work in
Slovakia, they will have to take up employment directly with an
employer domiciled in Slovakia.
A valid work permit issued to a third country national
posted for work in Slovakia before May 1 2018 will remain valid
for the entire term for which it was granted. The possibility
of posting workers within the scope of an intra-corporate
transfer will, of course, remain unchanged.
Due to the frequent abuse of the concept of cross-border
posting of workers from another EU member state, and in an
attempt to prevent social dumping and enhance the protection of
employees, the amendment imposes additional duties on employers
that host posted workers. Until now the only duty of the
receiving employer was to notify the competent labour office
about the posted worker, their job position and term of
posting. There will now also be a new duty to submit the
following documents: (i) a document confirming accommodation
for at least the expected duration of the posting in the case
of a third country national not subject to the visa
requirement, (ii) a copy of the A1 form as proof the third
country national pays social contributions in the member state
from which he/she was posted to work in Slovakia, and, (iii) a
copy of a residence document issued in the member state where
the third country national normally works if a residence permit
is required by the laws of the country from which they were
posted.
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| Dalimir Jančovič |
Byung Sung Park |