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

718 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 employees, employees are then not taken over by contractors, which means that (in accordance with the position of the Court of Justice of the EU) the transfer of the undertaking (and thus the safeguarding of employees' rights) does not even occur. In Slovenian business practice, employees are granted protection on the grounds of a change of employer in the outsourcing as well (in the event of the transfer of part of the undertaking, which retains its identity). In labour-intensive activities (cleaning, surveillance) this condition is met if the service provider takes over (employs) employees of the contracting authority. This is realised especially in those cases of public procurement where the contracting authority (for example, local self-government institution) includes such condition in the tender specifications. Since the outsourcing constitutes a temporary transfer of (part of) an undertaking, which is explicitly regulated by Slovenian ZDR-1, Slovenian courts generally recognise the rights of employees arising from the institution of a change of employer when the contract on the provision of services with the first contractor expires. Workers enter into the employment relationship with a new contractor, or once again with the contracting authority. An even better solution would be an explicit legal definition of the protection of employees in the event of a contractual transfer of services (including the case of public procurement procedure), perhaps along the lines of the English TUPE. Employers (local self- government institutions and other public entities) would thus avoid legal uncertainty (regarding a question of whether a change of employer occurred or not) in all stages of the transfer of activities (in the transfer of services from one contractor to another, as well as in the insourcing), and the safeguarding of employees in the case of outsourcing would not depend on a decision of the contractor to take over the majority of the employees of the contracting authority. Acknowledgment: This work has been partially supported by Croatian Science Foundation under the project UIP-2014-09-9377 Flexicurity and New Forms of Employment (Challenges regarding Modernization of Croatian Labour Law). Notes: 1 This is the so-called outsourcing - Outside Resource Using. 2 The most problematic are the cases of the so-called disguised employment relationships. These are the cases where the former employee becomes self-employed and concludes a contract on business cooperation with the former employer, but still carries out the work in the same manner, in a relationship of subordination (Kresal, 2014; Senčur Peček, 2014). 3 Even though the contractual rights and obligations of employees remain the same, the employment relationship between the transferee employer and employee differs from the relationship between the employee and the previous employer (Cooke et al., 2004). 4 OJ L 061; 5 March 1977. 5 Also with the aim to prevent the resistance of employees against corporate restructuring, which would affect the conversion of national markets into the European single market, and