The Human Rights Ombudsman of the Republic of Slovenia, based on the complaint of a civil servant, who is not a member of a trade union, examined the issue of the difference in the amount of jubilee bonuses for members and non-members of representative trade unions. He found that the legislation allows the regulation adopted in the collective agreement, and the case law does not see the regulation as controversial. In the Ombudsman's opinion, the only question that can remain open for the public sector is whether the matter may be controversial from the perspective of the use or economy of public funds, since higher jubilee bonuses and solidarity assistance for members of representative trade unions are paid from the funds of employers (i.e. public funds), not trade unions. The Ombudsman therefore referred the complainant to the Court of Audit of the Republic of Slovenia, which is competent for this issue.

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The Human Rights Ombudsman of the Republic of Slovenia (hereinafter: Ombudsman) was contacted by an applicant employed in a retirement home (DSO). He alleged that, as a non-union member, he was in a worse position than his colleagues who were members of representative unions. He submitted two decisions on jubilee bonuses issued by the employer, which showed that the employee, a union member, received a 20% higher jubilee bonus than the applicant, who was not a union member. The Annex to the Collective Agreement for the Health and Social Care Sector of Slovenia (Official Gazette of the Republic of Slovenia, No. 46/2013, Annex) provides that members of a representative union, signatories of this Annex, are entitled to a 20% higher jubilee bonus and solidarity assistance.

The Ombudsman examined the matter from the perspective of equality before the law. The right to a jubilee bonus is not a legal right, but is subject to regulation in collective agreements or general acts of the employer. The regulation highlighted by the complainant is based on Article 224 of the Employment Relations Act (ZDR-1), which stipulates that, pending regulation in the Collective Agreements Act (ZKolP), rights and obligations not already regulated in the law may be agreed upon in a collective agreement at the activity level only for members of the contracting parties. The above-mentioned Annex stipulated that members of a representative trade union, a signatory to this Annex, are entitled to a 20% higher jubilee bonus and solidarity assistance.

The Constitutional Court of the Republic of Slovenia (hereinafter: Constitutional Court) has already decided on the complaint to review the constitutionality of Articles 3 and 5 of the Annex by decision no. U-I-203/13-8 of 17 October 2013. The Constitutional Court dismissed the complaint. In accordance with the established constitutional review, the Constitutional Court is not competent to review the constitutionality and legality of the provisions of collective agreements.[1] According to point c) of Paragraph 1 of Article 6 of the Labour and Social Courts Act (ZDSS-1), labour courts in collective labour disputes are competent to decide on the compliance of collective agreements with the law. Given that, according to the Constitution (Article 125), judges are bound by the Constitution and the law when performing their judicial function, the judicial review of the compliance of collective agreements with the law also includes an assessment of their compliance with the Constitution. However, if the labour court, when assessing the legality of a collective agreement, were to consider that the law with which the collective agreement must comply is inconsistent with the Constitution, it would, under Article 156 of the Constitution, have to suspend the proceedings and initiate proceedings to assess the constitutionality of the law before the Constitutional Court.

The Supreme Court of the Republic of Slovenia (VSRS) stated in its judgment under case no. VIII Ips 50/2019 of 10 September 2019 that the agreement on rights and obligations through collective agreements only for members of the signatory, but not for all workers, does not constitute unlawful discrimination based on union membership, either under international or comparative law. ^[2] Such a regulation also does not contradict the provision of Paragraph 2 of Article 42 of the Constitution that everyone has the right to freely associate with others, nor the provision of Article 76 of the Constitution that membership in trade unions is free, which also means the right to be a member of a trade union. Even before the entry into force of Article 224 of the ZDR-1, the Constitutional Court, by decision U-I-284/06 of 1 October 2009, assessed the constitutionality of the provisions of Paragraph 1 of Article 2 and Paragraph 1 of Article 10 of the ZKolP, according to which collective agreements may also apply only to the parties to the collective agreement or its members. At that time, it took the position that such a regulation is not inconsistent with Article 76 of the Constitution or with international legal instruments (ILO Convention No. 135 and ILO Convention No. 154), to which the complainant referred. Otherwise, the provision of Article 224 of the ZDR-1 was subject to constitutional review, but the Constitutional Court rejected the request for a review of constitutionality and the request to initiate proceedings for a review of constitutionality.^[3]

In the same judgment, the Supreme Court of the Republic of Slovenia also stated that the provision of Article 6 of the Annex cannot be disputed in view of the provision of Paragraph 3 of Article 16 of the Civil Servants Act (ZJU). According to this provision, an employer may not provide a civil servant with rights to a greater extent than those provided for by law, implementing regulations, or a collective agreement, if this would burden public funds. The different amount of solidarity assistance for union members is provided for employees of the defendant on the basis of the Collective Agreement for Non-Economic Activities (KPND). Therefore, such payments are in accordance with the provision of Paragraph 3 of Article 16 of the ZJU.

It follows from all of the above that the law allows for the regulation adopted in the collective agreement, and the case law does not see the regulation as controversial. In the Ombudsman's opinion, the question of whether the matter may be controversial from the perspective of the use or economy of public funds may remain open for the public sector, since higher jubilee bonuses and solidarity assistance for members of representative trade unions are paid from the funds of employers (i.e. public funds), not trade unions. According to information known to the Ombudsman, the Court of Audit of the Republic of Slovenia, as the competent authority in this area, has not yet defined itself on the aforementioned issue in the audits carried out so far. However, there has been a tendency for some time now that the disputed provisions are interpreted restrictively from the perspective of economy, precisely because the higher funds to which members of representative trade unions are entitled are paid from the funds of the employer, not from the funds of the trade union. In view of the above, the Ombudsman advised the complainant to address his question or complaint to the Court of Audit of the Republic of Slovenia. 10.0-6/2025

[1] This position was explained in more detail by the Constitutional Court in its decision no.. U-I-75/97 of 14/05/1997 (OdlUS VI, 62), no. U-I-266/97 of 13/11/1997 (OdlUS VI, 150), no. U-I-197/01 of 15/01/2004 and no. U-I-85/12 of 3/05/2012.

[2] See Katarina Kresal Šoltes, Vsebina kolektivne pogodbe, GV Založba 2011, p. 115.

[3] Decision of the Constitutional Court of the RS U-I-174/13, U-I-54/14, U-I-200/14 z 10/03/2016.