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.
|Dalimir Jančovič||Byung Sung Park|