Lex localis - Journal of Local Self-Government_11(1)_January

L EX LOCALIS - J OURNAL OF L OCAL S ELF -G OVERNMENT D. Senčur Peček, S. Laleta & S. Kraljić: Labour Law Implications of Outsourcing in Public Sector 717 specified in the tender conditions). Based on such interpretation of Directive 2001/23/EC, the Directive (and therefore national regulation of a change of employer, which is being interpreted in the spirit of the Directive) is not applied exactly in the case of those employees who are in the greatest need of protection. The rules on the change of employer will be used only if the new contractor takes over the majority of employees of the contracting authority, which means that the employer will have to take over all employees (not just the majority) and will not be allowed to reduce contractual and other rights which the transferred employees acquired with the contracting authority (Senčur Peček, 2010: 305). In regard to the continued protection of employees in public procurement procedures in the RS, the eighth paragraph of Article 75 of the ZDR-1, 60 which also refers to a temporary transfer of part of the undertaking (contractual transfer of services), is especially important. In accordance with this provision, if there is a temporary transfer of part of an undertaking (i.e. if employees of the contracting authority are transferred to the contractor in the case of labour-intensive activities), 61 employees are transferred to the new contractor or back to the contracting authority (in the case of insourcing) after this contract expires. This opinion is found in the theory (Bečan et al. 2016: 442), but also in case law. The Supreme Court of the RS decided in the case VIII Ips 41/2014 (judgement of 19 May 2014), in which the contracting authority required providers of cleaning services to take over employees (an agreement on the takeover of employees was concluded as well) in the first public procurement, but did not include such obligation in the new tender after this contract expired (no agreement was concluded and the new contractor did not want to take over employees), that employees should have been transferred to the new transferee. 62 5 Conclusions Contractual delegation of ancillary activities to outside contractors is very well established in both Croatian and Slovenian public sectors. To this effect, local self-government institutions and other public entities are required to carry out public procurement procedure, which is regulated in both countries in accordance with EU directives. However, legal status of employees, who had been carrying out tasks in the framework of these activities with the contracting authority before the outsourcing, at least partly differs in Croatia and in Slovenia, even though both countries have implemented Directive 2001/23/EC, which regulates the transfer of undertakings. "The transfer of an employment contract to another employer," which is regulated by Croatian LA, is not very well established in practice in terms of a contractual transfer of the provision of services. In the case of outsourcing in labour-intensive activities in the public sector, this is due to the fact that contracting authorities do not include a requirement in the tender specification for contractors to take over