VODOVNIK, Zvone. Employment relationships in the public sector - abalance between the state, local and autonomous regulations. Lexlocalis, jul. 2013, vol. 11, no. 3, str. 497-512. [COBISS.SI-ID4124590], [JCR]

Employment relationships in the public sector – a balancebetween the state, local and autonomous regulations

Prof. Dr. Zvone Vodovnik

Faculty of Administration, Ljubljana University,

Gosarjeva 5, 1000 Ljubljana

zvone.vodovnik@fu.uni-lj.si

ABSTRACT

This article analyses the role of the state as well as theroles of the regional and local authorities in the legalregulation of employment relationships with special attentionon the public sector. The objective of this article is toidentify the principles of international law that may serve asthe demarcation line between the authoritative state regulationof employment relationships in the public sector and otherkinds of regulation of these relationships. The main goal ofthe research is to present and evaluate the centralinternational legislative acts with the aim to identifyprinciples that can serve as a tool for evaluating the internallegislative processes. The main finding of the research is thatthe collective labour law of the public sector may not beproclaimed as being wholly in accordance with the modern labourlaw principles and standards, namely, that the important valueof the freedom of collective bargaining is missing as aremechanisms for the effective prevention and resolution ofcollective labour disputes. In this regard, this articleemphasises the role of decentralised social dialogue in thepublic sector including local levels, which is not present in

Slovenia; however, the article may provide essentialinformation, especially in the area of conflict prevention andresolution between public authorities and civil servants.

Introduction

The constitutions of modern European states provide legalgrounds for the graduated reduction of state authority withrespect to the regulation of the employment relationships ofcivil servants. The principle of democracy requires democraticdevelopment in all the important areas of social life in thestate, and this principle is a basis for the legal regulationthat supports efficient communication between employers andemployees on all levels including the local one.

This principle is the essential foundation for the trade unionfreedom that is widely recognised in the public sector of thecontemporary state. It is also the basis for the development ofthe direct participation of the workers in decision-making aswell as their financial participation, two factors that areonly partially applicable in the public sector. The nextconstitutional principle is derived from the provisionsregarding the rule of law and the social state. Here we facethe double role of the modern state, namely, the regulator roleand its role in social partnering. The government of a modernstate must, on the one hand, ensure the appropriate statutoryregulations of the social dialogue, and on the other hand,support the processes of collective bargaining. There are manyfactors that influence the success of the state in these tworoles. It is important to identify the factors that could showthe clear picture of the success of the state in both of theaforementioned activities. One of these factors is the level ofefficiency in the regulation and practice of the prevention andresolution of labour disputes between civil servants and theiremployers. Conflicts should be settled peacefully between thetwo parties. Law permits the parties to initiate courtproceedings if their rights have been violated; however, thehuman resources and legal doctrine strongly recommend the useof alternative means of dispute resolution. The dissatisfiedparty should initiate out-of-court procedures to eliminate theconflict; however, the statute also provides the party with theprocedural right to demand that the court intervene in thedispute.

The constitutional values mentioned above are a legal frameworkfor the development of social dialogue that allows a symbioticrelationship between key social subjects who participate increating the foundations for socio-economic and socialdevelopment. Social dialogue is, most importantly, a collectivecommunication between social partners i carried out indifferent forms and from the national level to the local levelsand the level of individual work units. Social dialogue as a

communication process plays a key role in planning socialdevelopment and in harmonising various interests of differentpopulation groups. From this perspective, this process is ofkey importance for the prevention and resolution of conflictsbetween employers and employees. The level of the developmentof this communication process is important especially inperiods of economic and social crisis when it is possible toprovide for a balanced preservation of traditional socialvalues within the frameworks of the social dialogue, especiallythe preservation and development of a “social state” and thepromotion of economic development. Social dialogue is analternative to the authoritative regulation of important socialissues. The equilibrium between the two regulatory approachesis necessary, and thus, the dimensions of these approaches mustbe evaluated carefully. Exaggeration may result in negativeconsequences. The objective of this article is to identifyspecific facts that enable the judgement about the position ofthe demarcation line between the authoritative and autonomousregulations of employment relationships in modern society.

Before beginning a detailed analysis of the facts thatcontribute to establishing that demarcation line, some generalscientific findings that are relevant and important for thevaluation of the optimal degree of the social dialogue must bepresented, as these facts are linked to the economic situationin modern society, the political situation and the organisationof the state administration. The scientific literature, theopinions about the disintegration of the public sphere as theconsequence of the financial crises are present as are theopinions that the regulatory state is weak (Campbell, J.,2011). The successful activities of social partners and thedevelopment of the social dialogue in the private as well as inthe public sector can, therefore, ease the people’sdissatisfaction with politics and political elites.ii Theseelites, however, have difficulties modifying their habits evenin times of crisis. The great financial crisis of recent yearscaused by economic policies of deregulation was not enough to

change the destructive behaviour of politicians. As noted byeconomists alternative Keynesian-based policies wereimplemented; unfortunately, they did not prevail in the mid-term, and the policies soon became more liberally orientedafter the initial shock has (Pevcin, P., Drezgić, S., 2011).More authoritative regulation, however, does not necessarilyconstructively contribute to the development of the society.Bureaucratic tendencies are often directed at large regulatoryactivities that may present an obstacle for citizens as well asburden their living and working conditions (Gregor Virant,Polona Kovač, 2010). Social dialogue is a challenging option inthe regulation of employment relationships on the local andregional levels.iii Therefore, in the future, the modern statecould provide support to collective bargaining and to thecreation of mechanisms for the prevention and resolution oflabour conflicts at the regional or local levels. Such aprogressive approach could be considered to be in alignmentwith the thesis that it is particularly characteristic of thestate that, through its branched organisation, non-centralisedauthorities are established that extend over organisationallyrestricted areas and whose decisions are not obligatory andbinding for all residents, but only required and binding forthe inhabitants of the narrower community (Brezovnik, B.,2008).

1. The levels of social dialogue and the role of the state

1.1. The tripartite social dialogue

In numerous EU documents, social dialogue is defined as animportant value that has its origin in the historical andcultural foundations of Europe. It is one of the pillars of theemerging European social model; therefore, it is understandablethat it is a constituent part of the legal order of theEuropean Union, i.e., acquis communautaire.

From the perspective of persons involved in social dialogue,the legal theory of industrial relations divides socialdialogue into tripartite and bipartite social dialogue. In mostEuropean countries, both types of social dialogue are applied,i.e., bipartite and tripartite social dialogue. Within thescope of social dialogue, a two-way or three-way communicationoccurs between employees, employers, and the state or betweenthe representatives of these groups. Tripartite social dialogueis the manner of communication between social partners that hasbeen implemented as a principle in international law.iv InSlovenia, a type of tripartite social dialogue is alreadyformally implemented in the structure of the National Councilof the Republic of Slovenia.v The National Council may proposeto the National Assembly the passing of laws or amendments ofindividual statutory provisions (the first indent of Article 97of the Constitution of the RS), which conveys to the NationalAssembly its opinion on all matters within the competence ofthe National Assembly. The National Council may also exercise asuspensive veto; thus, it may require the National Assembly todecide again on a given law prior to its promulgation, thistime with a higher majority. Every member of the NationalCouncil may issue a written call for a referendum, which isapproved in the National Council if a majority of all membersvote in favour of the call. In addition, every member of the

National Council may file an initiative for a parliamentaryinquiry.

The second form of the institutional framework of tripartitesocial dialogue based on the agreement of social partners isthe Economic and Social Council of the Republic Slovenia (ESC).From its foundation in 1994, the ESC functions as the broadestbody of social dialogue in Slovenia.vi The state is included inthe work of this body as a partner, and its interests arerepresented by the representatives of the government.

The ESC has two key roles. The first role is an advisory role.The ESC takes an active part in drafting legislation and otherdocuments. The second role is a negotiating role. That is, theESC negotiates on issues that are a subject of the socialagreement, on agreements regulating the salary policy, and onsimilar tripartite agreements.

1.2. Bipartite social dialogue

Bipartite social dialogue takes place between employers, thegroup of employers or one or more employers’ organisations, onthe one hand, and one or more employee organisations or electedworkers’ representatives, on the other hand. At theinternational level, a legal basis for developing this type ofsocial dialogue is ILO Convention No. 154, the Promotion ofCollective Bargaining, which the Republic of Slovenia ratifiedin December 2005 (Official Gazette RS, No. 121/2005). Thismodern convention was adopted to promote stronger collectivebargaining and complement ILO Convention No. 98, whichunderlined the principle of free collective bargaining at theinternational level. Article 2 of the Convention definescollective bargaining, which extends to all negotiations thatoccur between an employer, a group of employers or one or moreemployers’ organisations, on the one hand, and one or moreworkers’ organisations, on the other, for determining workingconditions and terms of employment, regulating relationshipsbetween employers and workers, and regulating relationshipsbetween employers or their organisations and a workers’

organisation or workers’ organisations. ILO Recommendation No.163, which addresses the Promotion of Collective Bargaining(1981), elaborates in greater detail the principles arisingfrom the convention.

Two basic types of the bipartite social dialogue are applied,and the expected outcome of such is a conclusion of acollective agreement. These two types of social dialogueinclude the following:

collective bargaining between trade unions and employersresulting in the conclusion of an employment contract; and

consultations between the employers and the elected workers’representatives who also co-decide decisions .

Collective agreements are autonomous, general writtenagreements between employees and employers.vii Collectivecontracts are, therefore, an important autonomous source oflaw. However, all collective contracts and other collectiveagreements are not autonomous sources of law. If a collectivecontract does not contain provisions that would apply toindividually undetermined members of the parties andparticipants, such a collective contract does not have thenature of a normative instrument, although it can have thenature of a multilateral employment contract with certaincivil-law elements or even public-law elements. This alsoapplies to other types of collective agreements. With referenceto social dialogue, international law gives preference tocollective contracts in comparison to other types of collectiveagreements. The parties to collective contracts are, namely,trade unions and institutions of civil society whosesignificance for a balanced legal regulation of labourrelations and for the supervision over the implementation ofsuch relations are generally recognised. Free trade unionorganisation and collective bargaining may be exceptionallylimited in cases in which restrictions are necessary for theprotection of the public order. The question is raisedregarding the boundaries of the public order, on the one hand,

and the boundaries of trade union freedom and collectivebargaining, on the other hand. The regulation of economic andsocial relations, which may not be in the exclusive regulatorycompetence of the public authorities, is an issue of freecollective bargaining. However, the state, with its measures,cannot interfere with these relationships by any legislativeintervention simply by referring to the public interest. Inaccordance with the criteria of the International LabourOrganisation, via ex nunc effects, the state may interfere withexisting relationships that are regulated by collectiveagreements only in “crisis situations”.

2. International Law as the Framework for the National Regulationof the Collective Employment Relations

National legal regulations of collective labour relations haveconsidered the main international sources of law that regulatethis field (Korpič-Horvat, 2006). Among the importantinternational agreements is the Universal Declaration of HumanRights,viii which was adopted by the General Assembly of theUnited Nations in 1948. This legal instrument is not anenforceable legal instrument because its norms are abstract andof an interpretative nature, containing important values withregard to human rights. Article 20 of the Declarationdetermines that everyone has the right to freedom of peacefulassembly and association and that no one may be compelled tobelong to an association. The fourth paragraph of Article 23determines that everyone has the right to form and join tradeunions for the protection of his/her interests. The right tofreedom of association, including the right to form and jointrade unions, is also mentioned in Article 22 of theInternational Covenant on Civil and Political Rights of 1966; ix

more exhaustive, however, are the provisions of Article 8 ofthe International Covenant on Economic, Social and CulturalRights of 1966, x which contain more concrete guidelines thatall state parties to this Covenant must recognise and

appropriately implement in the national legal systems. Thefollowing provisions must be ensured:

the right of everyone to form trade unions and to join thetrade union of his choice, subject only to the rules of theorganisation concerned, for the promotion and protection of hiseconomic and social interests. No restrictions may be placed onthe exercise of this right other than those prescribed by law,which are necessary in a democratic society in the interests ofnational security or the preservation of public order for theprotection of the rights and freedoms of others;

the right of trade unions to establish national federations orconfederations and the right of the latter to form or joininternational trade-union organisations;

the right of trade unions to function freely subject to nolimitations other than those prescribed by law and which arenecessary in a democratic society in the interests of nationalsecurity or public order or for the protection of the rightsand freedoms of others;

the right to strike provided that it is exercised in conformitywith the laws of the particular country.

The principle of autonomy of the parties in collectivebargaining is also underlined in certain basic ILO conventions,such as ILO Convention No. 87,xi which determines theprotection of the right to organise and freedom of associationof workers’ and employers’ organisations in relationship to thestate. It is stressed that the public authorities shall refrainfrom any interference that would restrict this right of workersand employers as well as their organisations or impede thelawful exercise thereof. ILO Convention No. 87 is supplementedby ILO Convention No. 98,xii which defines certain principles ofthe freedom of association and collective bargaining, whereasits aim is to ensure conditions for implementing trade union

freedom and encourage voluntary collective bargainingprocedures.

Voluntary collective bargaining is also a subject of ILOConvention No. 154 and concerns the Promotion of CollectiveBargaining (1981)xiii together with ILO Recommendation No. 163of the same name (Belopavlovič, 2006). These documentsencourage the states to adopt measures to facilitate theestablishment and growth, on a voluntary basis, of free,independent and representative employers’ and workers’organisations. The states must ensure pre-established andobjective criteria with regard to the organisations’representative character. Measures adapted to nationalconditions are to be taken to promote collective bargaining andare the following:

collective bargaining should be made possible for all employersand all groups of workers in the branches of activity coveredby this Convention;

collective bargaining should be progressively extended to allbranches of economic activity, the police, the armed forces,and the public service to the extent to which the guaranteesprovided for in this Convention apply to them;

the establishment of rules of procedure agreed upon betweenemployers’ and workers’ organisations should be encouraged,whereas collective bargaining should not be hampered by theabsence of rules governing the procedure to be used or by theinadequacy or inappropriateness of such rules;

bodies and procedures for the settlement of labour disputesshould be so conceived as to contribute to the promotion ofcollective bargaining.

With respect to the principles of the freedom of associationand the autonomy of the parties to collective agreements, theinstruments of the Council of Europe are important. Within thisframework, two documents must be mentioned: the EuropeanConvention on Human Rightsxiv and the European Social Charter

(ESC),xv which in paragraph 5 of Part I determines that allworkers and employers have the right to freedom of associationin national or international organisations for the protectionof their economic and social interests. In paragraph 6, itdetermines that all workers and employers have the right tobargain collectively. The European Committee of Social Rightsis the body responsible for the interpretation of theprovisions of the ESC based on the national reports of thestates’ parties and in collective complaints procedures. Withinthis scope, the European Committee determines whether nationalregulation and practice in states’ parties are in conformitywith the Charter.

ILO Convention No. 151, the Protection of the Right to Organiseand Procedures for Determining Conditions of Employment in thePublic Service (1978), provides for the protection against actsof anti-union discrimination as well as for the completeindependence of unions from public authorities. Such facilitiesshould be afforded to the representatives of recognised publicemployees’ organisations as may be appropriate to enable themto carry out their functions promptly and efficiently, bothduring and outside their hours of work. Measures appropriate tonational conditions should be taken to encourage and promotethe full development and utilisation of machinery for thenegotiation of terms and conditions of employment between thepublic authorities concerned and public employees’organisations, or of such other methods as will allowrepresentatives of public employees to participate in thedetermination of these matters. The settlement of disputesarising in connection with the determination of terms andconditions of employment shall be sought, as may be appropriateto national conditions, through negotiations between theparties or through independent and impartial machinery, such asmediation, conciliation and arbitration, established in such amanner as to ensure the confidence of the parties involved(see, Vodovnik, Turi, 2008). Conflict prevention and conflictresolution should be based on the negotiations between the

parties or through independent and impartial machinery, such asmediation, conciliation and arbitration, established in such amanner as to ensure the confidence of the parties involved.

ILO Recommendation No. 159, the Procedures for DeterminingConditions of Employment in the Public Service (1978),elaborates in more detail upon the principles of thenegotiation of terms and conditions of employment in the publicservices. In addition, the Recommendation also notices methodsother than negotiation in the determination of terms andconditions of employment. For such cases, the Recommendationemphasises that in these cases, the methods that allowrepresentatives of public employees to participate in theprocess of the creation of the regulations should be determinedby national laws or regulations or other appropriate means. TheSlovenian legal regulation of collective labour relations isalso based on certain European Union legislative instrumentsand documents.xvi According to European acts, the role of theCommission is to promote consultation with the social partnersthat are organised at the community level before submittingproposals of normative instruments. Social partners achieved aformal inclusion in legal procedures at the community level andbecame an important factor in creating European law (Weiss,2006). In addition, social partners implement their role increating a legal regulation of social relations based on theirprogrammes, which they adopt for the period of several years(Leiber, 2005, pp. 23-25).xvii

A legal basis for social dialogue at the Union level is givenin the Lisbon Treaty, namely, in the Treaty on the Functioningof the European Union, T.F.E.U. (O.J.E.U., C 115/98, 9. 5.2008). According to Article 151, the Union and the memberstates proclaim the following as their objectives:

- the promotion of employment;

- improved living and working conditions and their harmonisationwhile the improvement is being maintained;

- proper social protection;

- dialogue between management and labour; and

- the development of human resources with a view to lasting highemployment and combating of exclusion.

In accordance with the Treaty, the Union and the member stateshave as their objectives the promotion of dialogue between thesocial partners in the field of social relations,xviii especiallyby consulting “management and labour” on the possible directionof Union action.

Before submitting social policy proposals, the Commissionconsults social partners. Two stages of consultations areenvisaged (Leiber, 2005, p. 23). At the first stage, theCommission consults the social partners on the possibledirection of Union action in social policy. In the second stageof the procedures, the Commission drafts its proposal andconsults on the possible contents of community action. Socialpartners may, within six weeks, forward to the Commission anopinion or a recommendation. Of essential importance is theadditional option and right of the social partners to informthe Commission of their wish to initiate the process to legallyregulate the issue (Article 154 of T.F.E.U.). The duration ofthe procedure may not exceed nine months so that the socialpartners can conclude an agreement on the issue. The deadlinemay be prolonged by joint decision of the social partners andthe Commission.

The concluded agreement may be implemented:

in accordance with the procedures and practices specific tosocial partners and the member states; or

in matters covered by Article 153 of the T.F.E.U., at the jointrequest of the signatory parties, by a Council decision on aproposal from the Commission (the second paragraph of Article153 of the T.F.E.U).

If the negotiations are successful, the agreement substitutesfor or replaces community action.xix If there are nonegotiations or if they are not successful, community bodiesdraft legal instruments under standard procedures. In theliterature as well as in discussions on social dialogue at thecommunity level, the term “European social dialogue” is oftenused as a general term for different forms and levels ofcooperation of social partners. This does not only concernadopting legal instruments at the European level, but alsoother forms of communication between social partners that caninfluence community social policy. An important form is, forinstance, the operation of the European network of governmentsand tripartite institutions, which draft programmes on thedevelopment of social relations in the member states of the EUas well as at the EU level.

For the collective legal position of the employees theCommunity Charter of the Fundamental Social Rights of Workers(1989) is of great importance. Among other regulations, theCharter emphasizes the following:

employees’ freedom of association and collective bargaining;this is done by stating that the employers and workers of theEuropean Community shall have the right of association toconstitute professional organisations or trade unions of theirchoice for the defence of their economic and social interests,

the right of information, consultation, and participation forworkers, which should be developed along appropriate lines,taking account the practices in force in the various memberstates, especially in companies or groups of companies havingestablishments or companies in several member states of theEuropean Community. According to the Charter, such information,consultation, and participation must be implemented in duetime, particularly in the cases determined by the Charter.xx

These principles are further elaborated by various EUdirectives regarding the employees’ participation in different

types of works units, on one hand, and by European collectivebargaining between European social partners, on the other hand.

3. Apparently free, although limited, collective bargaining on thewages or salaries in the public sector

Remunerations of civil servants and functionaries are regulatedby special statutory provisions of the salary system in thePublic Sector Act of 2002 (with later modifications). Theprincipal characteristic of this regulation is a mixture of theauthoritative state regulatory approach to the regulations andapparently free contractual regulations. The act establishes acommon basis for the salary system in the public sector xxi toapply the principle of equal pay for equal work in comparablepositions, titles, and offices and to ensure the transparencyof the salary system and salary incentives (Virant, 2009).Working conditions, including the wages or salaries of civilservants, may be determined by an employment contract or aformal decision of a competent authoritative body. Suchregulations are limited by existing law (i.e., state law andautonomous law). An employment contract or a proposal by theemployer to the employee must be accompanied by a writtendocument that explains the basis for the proposed wage orsalary and its elements. The wage or salary amount may not bedifferent compared to the existing salary regulations of publicor private law. The destiny of the contract or decision dependson the already mentioned regulations, namely, the employer mayunilaterally intervene in the existing contractual orauthoritative regulation of the wage or salary by anotification of the regulatory changes accompanied by a writtenproposal of the annex to the contract or authoritativedecision. If such modifications of the employment relationshipare not conducted, a new law is applied by the force of thestatute (ex lege).

The basic wage or salary of a civil servant or functionary maybe determined by a salary bracket in which the wage or salary,

or the title or function, is based on the decision of thecompetent body.xxii To facilitate the placement of the jobs andtitles in salary brackets, the core jobs and titles, namely,the orientation jobs and titles that have been previouslysuccessfully evaluated, are placed in salary brackets by thecollective agreement. The amount of the basic wage or salarymay also vary according to the statutory provisions. On the onehand, a basic wage or salary may be reduced if a civil servantperforms a less demanding job or a job with a reduced extent ofparticular activities according to statutory provisions. On theother hand, a basic wage or salary may be increased for thedetermined period of time in cases determined by thestatute.xxiii

With respect to the legislation controlling salaries, themethods of management in the private sector were introduced tothe public sector wherever possible. The most radical changesand those that are important for the development of the newnature of employment relationships were introduced by the CivilServants Act of 2002 (CSA) and the Public Sector Wage SystemAct of 2002 (PSWSA). These acts were designed based on thelegislature’s intention to put the employment relationships inthe public sector on a contractual basis to the greatest extentpossible, including the introduction of a specific collectivebargaining approach in the public sector. In the pursuit ofachieving this goal, the legislature adopted some rathercontroversial regulations, placing a heavy institutional effecton the collective contracts, a kind of legislative “overdose”in its efforts to ensure a vast area for social dialogue in thepublic sector. The legislative transfer of state authority tosocial partners was exaggerated, although it was thislegislation that endangered the public interest in salaryregulations. The legislation imposed upon the trade unions thestatutory determined duty to regulate the essential elements ofthe salary system, which can be considered as a move againsttrade union freedom. Having no means to force trade unions toaccept the proposed solutions in the collective contract,

drafts such as this statutory regulation risked paralysing theprocess of introducing the new wage system into the publicsector. xxiv In fact, collective bargaining was not successfulfor some years thus, the legislator had to make changes to thePSWSA. However, the changes did not introduce any efficienttools with the function to resolve the interest dispute betweenthe trade unions and the state. The legislator did not adhereto any known comparative labour law approach. According to thechanged statute, the absent or deficient agreements should bereplaced by statutory provisions or by government decisions.Such a solution is hardly sustainable from the political pointof view because it reveals that the state must resort to itsauthority after being unable to regulate the salary systemdemocratically through social dialogue.xxv As a consequence,this solution was abolished in the year 2004. Ultimately, thelegislation changed in the way that it eased the process ofreaching “quasi collective agreements” necessary for theregulation of salaries. The solution was the new statutorydefinition of the representativeness of trade unions, which isnecessary for stipulating the collective contracts with the“erga omnes” effect in the public sector. This solution broughtthe desired result. While the salary system had beensuccessfully implemented, the success of this approach waslimited because of the large number of trade unions who opposedthe solutions in the new collective contracts. The tradeunions’ arguments, however, were not accepted by thegovernment. The tensions between the social partners in thepublic sector are still present; thus, the formula for betterregulation is needed. Theoretically, there are two possibleways to improve the system:

- Based on experiences with collective bargaining, it ispossible to design rules about the elements of minimal wagesand regulate them by the statute and, at the same time, allowfor free collective bargaining in the future for an increasednumber of rights, where justified. In this case, thedistinction between the two types of the collective contracts

would lose ground; therefore, the unique type of the collectivecontract would be implemented in the private as well as in thepublic sector.

- A second option for improving the system is to maintain andretain the existing system of “quasi collective agreements” forthe public sector together with the new special tools forefficient interest and conflict prevention and resolution.

As previously mentioned, collective bargaining about the newwage system was a difficult and long-lasting process that wasfinally concluded in June 2008. The delay appeared to be theconsequence of the conflict of interests and law among socialpartners in the public sector. The strong position of tradeunions, on one side, and the temptation of state authorities toresort to the use of state power rather than bargaining, on theother side, generated dangerous conflicts among socialpartners.

4. The conclusion

The analysis of the role of the state in the regulation of therelationships between employers and employees presents a clearpicture of the trends of the regulation processes in Sloveniaand in Europe. In can be concluded that the characteristics ofthese trends adhere to the modern state step-by-step way ofdiminishing of the regulatory role of the state with respect toemployment relationships. This trend is not only present in theprivate sector but also in the public sector. In the publicsector, the state is on the way of accepting the role of thesocial partner which means that the state tries to make clearthe distinction between the necessary authoritarian regulationof the area based on protecting the public interest and thefree collective bargaining outside this area. In this way, theconstitutional principle of democracy is gaining influence, butprogress in this direction is still needed. Some problemsremain unresolved, especially with respect to the preventionand resolution of collective labour disputes, which is an areathat requires further research.

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i Social partners are subjects who, because of the implementation oftheir own interests in the fields of economic and social relations,communicate in a legally regulated manner with subjects who havefundamentally the same long-term interests. Social partners are tradeunions as well as employers and their associations. The state and thelocal communities also play a role of the social partner, namely, as anemployer. They employ persons in their administrations and may alsonegotiate with trade unions of the public sector within the framework ofwhich it provides for the performance of public tasks.

ii Similar roles have the social processes that contribute to the development of ethical principles in the society. As the behaviour of thecivil servants influence a number the public policies, the ethic codes ofthe civil servants also have an important impact on the regulatory policyof the state (Stare, J., Buzeti, J., 2011).

iii The development of regions brings great changes and novelties to the organisation of the public sector and to the legal regulation of this field in Slovenia. These developments concern all fields of law, including the field of labour relations. From the viewpoint of labour law, two fundamental questions are important with reference to regions: first, whether the establishment of regions will, in any way, influence general labour law regulation and special labour law regulation of the public sector, and second, what the position of employees in the regionaladministration units will be (Vodovnik, 2008).

This principle is a guideline for forming bodies of the central international organisation, responsible for adopting principal international legal instruments, i.e., the International Labour Organisation (ILO). This principle is also implemented in ILO Convention No. 144 concerning Tripartite Consultations and in ILO Recommendation No.152.

The second house of the parliament is the representative body for social, economic, professional, and local interests. The National Councilis, inter alia, composed of four representatives of employers’ associations and four representatives of trade unions. Members of the National Councilare elected for a term of five years. Members are elected at indirect elections held within interest organisations or local communities by electoral bodies (i.e., electors).

iv This principle is a guideline for forming bodies of the central international organisation, responsible for adopting principal international legal instruments, i.e., the International Labour Organisation (ILO). This principle is also implemented in ILO Convention No. 144 concerning Tripartite Consultations and in ILO Recommendation No.152.

v The second house of the parliament is the representative body for social, economic, professional, and local interests. The National Councilis, inter alia, composed of four representatives of employers’ associations and four representatives of trade unions. Members of the National Councilare elected for a term of five years. Members are elected at indirect elections held within interest organisations or local communities by electoral bodies (i.e., electors).

vi The ESC monitors economic and social situations, it discusses such,and develops standpoints and proposals with reference to these areas andareas that have a great significance for all three social partners. Thebasic fields of the operation of the ESC are, e.g., concluding socialagreements, discussing the issues of employment and employment relationsand similar.

vii Most often, collective agreements are regulating general working conditions as well as the rights and obligations of contracting parties. An employment contract may only determine the same or higher level of rights and benefits for employees than are determined by a collective contract.

viii Official Gazette RS, No. 24/1999 – MP, No. 7/1999

ix Official Gazette SFRY, No. 7/1971, Official Gazette RS, No. 35/1992 –MP, No. 9/1992.

x Official Gazette SFRY, No. 7/1971; Official Gazette RS, No. 35/1992 –MP, No. 9/1992.

xi Official Gazette SFRY – MP, No. 8/1958.

xii Official Gazette SFRY – MP, No. 14/1982.xiii Official Gazette RS, No. 121/2005.

xiv Official Gazette RS, No. 33/1994.

xv Official Gazette RS, No. 7/1999 – MP.

xvi See, Nunin R., 2001, Blanpain R., 2004.

xvii An important role in the development of social partnerships andsocial dialogue at the community level can also be attributed to theestablishment of the Social Dialogue Commission (1993), the adoption ofthe Treaty of Amsterdam (1997), and the establishment of sectoral socialdialogue commissions (1998).

xviii According to Article 154 of the Treaty, the Commission has the taskof promoting the consultation of management and labour at the union level

and of taking any relevant measures to facilitate the dialogue betweenthem by ensuring balanced support for the parties.The question of the representativeness of the social partnerorganisations at the European level is fundamental, as it constitutes thebasis for their right to be consulted by the Commission(http://www.eurofound.europa.eu). In 1993, the Commission determinedcriteria for representativeness of the organisations, which are trans-sectoral orsectoral and are organised at the European level or are associationscomprised of organisations that are a recognised part of the socialpartnership structure in a member state with the capacity to negotiate onagreements and on the condition that they must have an appropriatestructure that allows them efficient participation in communicationprocesses. On a regular basis, the Commission publishes a list of theEuropean social partner organisations that, in its opinion, fulfil thesecriteria.

xix Some of the successful agreements implemented hitherto are thefollowing:

Framework Agreement on Parental Leave (Directive 96/34/EC); Framework Agreement on Part-Time Work (Directive 97/81/EC); Framework Agreement on Fixed-Term Contracts (Directive 1999/70/EC); Autonomous Framework Agreement on Telework (16 June 2002,

implemented by social partners); Autonomous Framework Agreement on Work-Related Stress (8 October

2004, implemented by social partners).European social dialogue has resulted in over 300 joint texts by the Europeansocial partners.

xxThese are the following:

when technological changes, which, from the point of view ofworking conditions and the work organisation, have majorimplications for the work force are introduced into theundertakings;

in connection with restructuring operations in undertakings or incases of mergers having an impact on the employment of workers;

in cases of collective redundancy procedures; when trans-frontier workers, in particular, are affected by

employment policies pursued by the undertaking where they areemployed.

xxi As the statute covers the wide area of the public sector, the term wages is used as a common term for remunerations in state administrations, administrations of local communities in public services,and other areas of the public sector. The remuneration of civil servants in administrations may be called salaries.

xxii The competent state body may be the government, a minister, or a competent body of the local community with the consent of the minister.

The basic wage or salary or the title or function must be placed in a special salary bracket according to the valuation on the basis of the criteria determined by the statute, e.g., job requirements, responsibility, effort, and others. The method of the evaluation is determined by the collective agreement concluded between the Government and the public sector unions.

xxiii Due to efforts of the legislature to adopt a comprehensive regulationof the system of salaries in the public sector, such regulation may be considered modern. Despite this fact, recent changes in the system have been met with serious resistance in some branches and professions. In 2010, extreme tensions appeared in relationships between trade unions andemployers of the public sector. Employees of some professional groups have demanded separate collective bargaining negotiations with the employers (Vitez, Tičar, 2009).

xxiv This fact soon caused conflicts among the social partners in the public sector. In contrast, the state did not succeed in ensuring regulatory, organizational, and financial grounds for conflict preventionand conflict resolution in the public sector. This situation caused the problem of bringing the PSWSA into force. There have been serious delays in achieving results in the process of collective bargaining.

xxv Such cases are reported from different countries, e.g., Australia orSouth Korea. In the last decade, the government of the last state hasbeen under the pressure from the International Monetary Fund to introducethe essential methods of consultations and trade union freedom in someareas of the public sector, which was the condition for its support(Brien 2006)