Tena Šimonović Einwalter: Employers Prefer to Pay Fines for Illegal Work of Foreigners Rather Than Be Without Them

The annual report on the state of human rights submitted by the Office of the Ombudsman, led by Tena Šimonović Einwalter, always attracts attention, and this year was no different. In this year’s report, there is still not enough improvement, says Šimonović Einwalter in an interview with Lider.

You submitted a report on your work to the Croatian Parliament. How would you assess the past year, has there been any improvement in the area of human rights in Croatia?

Unfortunately, I do not see enough improvement, and I have a broad overview. It has been an intense year for the institution. We handled about 10 percent more cases than the previous year, a total of 6,680, and the majority of these cases were opened based on citizens’ complaints. Last year we had 4,803 new cases, of which 3,364 were based on citizens’ complaints or on our initiative, which is again slightly more than the previous year. Regarding the relationship of public authorities towards citizens, we still see the same long-standing problems. These include delays in proceedings, transferring jurisdiction from one body to another, formalism in responses to citizens, and even non-responsiveness.

For example, one citizen sent an email to her county five times and did not receive a response while trying to resolve her administrative procedure that has been ongoing for four years, while the legal deadline for resolving that procedure is 30 or 60 days. Institutions often respond to citizens’ specific inquiries by quoting legal provisions, which is not an answer to what citizens are asking. Here we are talking about the right to good governance. Regarding specific areas or other concrete human rights, the right to health, or access to healthcare, has proven to be the biggest problem. In the last five years, we have seen a 54 percent increase in complaints in this area, but there is also a large number of complaints related to discrimination and concerning labor and civil service relations.

We have also been very active in drafting opinions on proposed laws, participating in about 60 public consultations on laws and other regulations, and I subsequently presented opinions and proposals to parliamentary representatives and at discussions in parliamentary committees, in the further legislative process. We also implemented a major project on the EU Charter of Fundamental Rights, as an important legal document – part of EU primary law – and this is because the Charter is still not sufficiently recognized or utilized in Croatia. We organized a whole series of trainings, both on the Charter and primarily on the application of the Whistleblower Protection Act, or popularly known as the whistleblower protection law, among others for judges and state attorneys, as well as for confidential persons – those individuals in the workplace to whom irregularities can be reported.

What can the Ombudsman’s Office do when it receives a complaint about the length of proceedings?

We can expedite, help to move things off dead center. The Administrative Procedure Act has prescribed deadlines, and by exceeding the deadline, you have a violation of rights, and potentially a violation of the rights concerning the substance of the case in that procedure. We view the length of proceedings as a separate problem.

After your urging, is there any effect?

Yes, there is. I would not want the conclusion to be that those who turn to the Ombudsman receive different treatment because what is important here is the conduct of the bodies in accordance with the law. We investigate whether the conduct is in accordance with the law, both in terms of merit and the length of proceedings. Non-responsiveness to citizens is a problem. Yes, we live in a time when citizens expect very quick responses, which is not always realistic to receive from every body, but the fact is that it is a constitutional right to receive a response to your petition or complaint.

Amendments to the Foreigners Act have been proposed. What is your assessment of this regulation?

The problem with the Foreigners Act is that the amendments have been long awaited, and it was evident that they were needed much earlier. Given the timing in which they were sent into the legislative procedure, just before the dissolution of Parliament, it is quite clear that if these are indeed the amendments, they will certainly not come into force for a long time. Then we will also have to wait for the subordinate legislation. For example, the issue of regulations that would govern the accommodation of foreign workers will not be resolved for quite some time. Substantively, among these amendments to the Act, there are many welcome novelties, such as the extension of the duration of residence and work permits and the fact that they will not be tied to a single employer. This is now a problem; workers whose rights at work have been violated find it difficult to report such an employer because in the event of dismissal, they lose their residence and work permit, which means they must leave the country.

Another problem is that there is no systematic, organized learning of the Croatian language, and I also see the responsibility of the state here. I do not think this should be entirely shifted to employers as it has been until now, nor should it depend on the decisions of local units, so we welcomed that things are moving in a better direction with these amendments. On the other hand, in the public consultation, we pointed out that the idea is problematic that, in situations where the employer does not pay wages and contributions, the worker loses their residence and work permit, because then it is the employer who is breaking the law, while the worker bears the consequences.

It is also not clearly specified who conducts the inspection of accommodation, whether it is an inspector for labor relations, occupational safety, sanitary or construction inspector? Then, the provision with specific deadlines for the adoption of migration policy has been deleted. I have long emphasized, even through recommendations in reports to Parliament, that it is necessary to adopt an integration and migration policy. This should be the state’s strategy on how to deal with something that is a reality, which should not be avoided, but strategically managed.

Are you also receiving complaints from foreign workers?

We recorded an increase in complaints in 2023, but we also acted on our own initiative regarding media reports about accommodation conditions and attacks on foreign workers. Those who contacted us were citizens of Bosnia and Herzegovina, Serbia, North Macedonia, Montenegro, the Philippines, Bangladesh, Turkey, Uzbekistan, Egypt, and India. The complaints mainly related to working without a residence and work permit and already known problems – non-payment of wages, payment of part of the wages in cash, illegal overtime work, denial of the right to rest, and failure to conclude employment contracts.

We also had quite specific complaints, receiving threats and insults, especially when they requested payment of the agreed salary. Some testified about the confiscation of personal documents with threats of losing accommodation. When we receive a complaint related to rights at the workplace, for which we as an institution do not have jurisdiction, we refer the complainants to the State Inspectorate or, if it is a problem for foreign workers due to language barriers and they give consent, we forward it to the Inspectorate. And I must say that their statistics for 2023 speak volumes. They established illegal work for 578 citizens of third countries (without a residence and work permit), most often in construction and hospitality. This is nine percent more than in 2022, but it should also be noted that permits were issued 39 percent more.

Similarly, the Inspectorate issued 136 decisions on temporary bans on conducting activities. What is interesting is that 75 of these bans were lifted because employers paid a fine of 3,981 euros for each foreign citizen for whom a violation was established, benefiting the state budget. This shows their need for foreign workers. The issue we particularly considered in relation to the past year was the occupational safety of foreign workers, and for this reason, the State Inspectorate conducted 41 inspections and identified numerous deficiencies, as well as that 39 foreign workers were injured at work.

We can also touch on domestic workers – are you receiving complaints in the area of labor relations?

Yes, but as with foreign workers, our powers in the private sector are not the same as those in the public or state sector. When it comes to reporting to Parliament on the respect for labor rights, we are competent for both sectors, but when it comes to our actions, determining violations of rights and imposing measures, we are only competent for the public or state sector. However, there are two exceptions for cases of discrimination and whistleblower protection. In those cases, we can act even when it comes to the private sector, even initiating court proceedings.

What troubles public sector workers the most?

We received the most complaints regarding violations of dignity and harassment, or mobbing. The majority of such cases came from health and educational institutions. We also record complaints about illegalities in hiring in public services.

So, nepotism.

Not just nepotism, but various favoritism.

How many such complaints are there?

When we look at the total number of complaints, across all areas, those related to labor rights rank third in number, with 251 last year. For the public sector, I have already mentioned the reasons for complaints, while we receive complaints from the private sector about illegal dismissals, undeclared work, non-payment of wages, payment ‘in cash’, failure to deliver pay slips, contribution debts, non-payment of compensation based on temporary incapacity for work, workplace harassment, failure to report workplace injuries by the employer, and discrimination in hiring.

The Office can act on complaints from public sector workers. What has been the effect?

It varies by case. Our starting point is to verify the validity of the complaint, so we must hear both sides of the story and be objective. Especially challenging are those cases where you have conflicting statements from two individuals, for example, when it comes to harassment as a form of discrimination at work. An additional problem is that if there are any witnesses, they are not always willing to testify against the employer because they fear repercussions. The truth is easiest to establish in those cases where there is documentation and a written record of the proceedings.

How many cases of discriminatory job advertisements have you found?

They are not dominant, but I still think there are too many. Last year we had a case of a shoe store that stated they were looking for a female employee with experience working in a boutique aged 40 to 60 years. One of the more interesting cases was an advertisement that required 25 years of work experience for the position of administrative employee. Age in job advertisements does not automatically constitute discrimination, but there must be a justified reason for that requirement, which was not the case in these advertisements. We also had advertisements for workers of a certain nationality. We had that media-covered advertisement about offering discounts for hiring foreign workers, as if they were goods, which is dehumanizing.

I am always surprised that some discriminatory advertisements are also published through the Croatian Employment Service. It is one thing when someone posts such an advertisement on Facebook, but I would expect the CES to warn employers that the advertisement is discriminatory.

Discrimination in hiring and at the workplace is one of the more important topics in our work and actually the most common topic in citizens’ complaints about discrimination. The Anti-Discrimination Act was adopted in 2008, came into force in 2009, and to this day we have a situation where many still do not know who the law applies to and who it obliges. What we too often see is the misconception, especially in the private sector, that this law does not apply to them. But the law prohibits discrimination equally in both the private and public sectors.

How would you assess the protection against mobbing?

This issue has been relevant for a long time because mobbing is not adequately regulated in the Labor Act; there is no single law that protects workers from mobbing, but it is covered by several laws. First of all, mobbing needs to be legally defined and a comprehensive legal solution needs to be ensured. In the Report, we also recommended that the Labor Act be amended, but also that Croatia ratify the International Labour Organization Convention No. 190. This is the first international instrument that sets standards for combating harassment in the world of work. What would not be good is to define mobbing in the Anti-Discrimination Act, which has previously been proposed as an idea. The essence and common link of different forms of discrimination is precisely the connection to some specific characteristic that makes someone a member of a minority group, while that is irrelevant when we talk about mobbing.

There is a lot of criticism in public regarding consultations with the interested public during the legislative process where that public discussion is often just a formality. What is your opinion on public consultations?

I agree with what you said. This is the experience of a large number of citizens, various associations, professional organizations, and even employers. Too often, all of us who provide opinions in consultations with the interested public have the impression that the consultation was pro forma. I do not expect that all ideas and suggestions will be taken into account, but at least every specific comment should receive a reasoned response.

This is a question of the right to good governance, the rule of law, the inclusion of the expert public, and the inclusion of citizens. Here are the statistics: out of nearly 20,000 comments, 16 percent were accepted or partially accepted, while 40 percent were not accepted. What is interesting is that 23 percent of comments were ‘noted’, and 20 percent of comments went unanswered. This discourages the expert public, and this Report recommends that expert holders provide reasoned responses to a greater number of comments in e-consultations.

The problem also lies in the duration of consultations. They should last at least 30 days, and it would be ideal if they did not occur during holidays and vacation periods. For some major laws, it would be good to organize public discussions, round tables where opinions can be exchanged. More experts should be included in working groups, and their composition should be publicly announced.

What do you think is the reason for such ignoring by the legislator?

Because it is far simpler to agree in a closed room.

The Whistleblower Protection Act, colloquially known as the whistleblower law, has been assessed by part of the public as a law that protects corruption. What is your opinion on this?

It is very important that we have a Whistleblower Protection Act, and I think this second one is better than the first one from 2019. The new law better prescribes internal and external reporting and gives the whistleblower the option to choose which path they want to report, expands judicial jurisdiction and the circle of persons who enjoy protection under the law. I think there is room for improvement, both in terms of the legal text itself and in terms of implementation.

Another problem is the significant gap between what is referred to in public as whistleblowers and the subject matter regulated by the law. When you say ‘whistleblower’, most people think of someone who points out any undesirable thing they learned at work in any way. In reality, the law quite firmly regulates who can be a whistleblower in a legal sense, as well as what is considered irregularities. Yes, these certainly include issues of corruption. And there must be that special legal treatment and protection for whistleblowers because it is already difficult to decide to report. From the start, you risk dismissal, as well as various types of pressure once your report becomes known. After that, financial exhaustion in legal proceedings may follow.

Finally, the Regulation on the Method of Providing Emotional Support to Whistleblowers has been adopted, which is an obligation under the law. To someone who has not encountered everything that whistleblowers go through, this may seem trivial, but it is not. For someone, reporting irregularities can change their entire life because they decided to do the right thing.

Some lawyers claim that the private sector sees this law as a necessary evil. Does the experience of its application show this?

All laws can be seen as a necessary evil, right? If we want to live in a serious, organized state, with strong rule of law and a fight against corruption, then the Whistleblower Protection Act is necessary. One question is the law itself, and another is how it is implemented in practice. The law should be viewed as an opportunity for the employer within their organizational structure to quickly detect and eliminate irregularities, which is the fastest way. Of course, if it is a criminal offense, then it is necessary to inform the State Attorney’s Office, but many irregularities can be eliminated by the employer themselves if whistleblowers use the internal reporting channel, which also presupposes fostering a culture of reporting irregularities that is in the public interest.

What we see is that the law is not sufficiently recognized among those who may be considering reporting irregularities, nor among confidential persons, nor among the employers themselves.

Here are fresh examples: confidential persons have sent us inquiries about whether the reported irregularity falls within the scope of the law, what to do, how to proceed, what to do when the report is justified, and the employer has not disclosed the irregularity. Then, some employers did not publish information about the internal reporting system and appointed confidential persons in the way they should have. We also have situations where employers cannot find someone willing to take on the role of a confidential person. Sometimes confidential persons do not even have adequate spaces and conditions for work, so they have to meet with the whistleblower in a café. We have also had reports that they keep documentation at home because they cannot keep it in a safe place at work.

What seems most important to me is that whistleblowers know what irregularities can be reported under this Law (and which under some others), how to do so, and that they can immediately send the report to us. We handle these cases with great care.

Can you say something about the content of these reports?

The law does not allow me to do that. The content varies, but our focus is not on determining irregularities; that is determined by the State Attorney’s Office, the Tax Administration, and other bodies competent to act on the content of the reported irregularity, while our focus is on protecting the rights of the whistleblower, their identity, and protection from labor law consequences. Our job is to reduce the risk of any negative consequences for whistleblowers, which is now referred to in the law as ‘retaliation’, and we have successfully done this by protecting the identity of the whistleblower and the confidentiality of data during the proceedings.