SOCIAL SECURITY OF (MIGRANT) SEASONAL WORKERS
BENEFICIARY PARTY REPORT KOSOVO[1]
Final version
by
Prof. dr. Grega Strban
Faculty of Law, University of Ljubljana
The views expressed in this report are under the responsibility of the author and do not necessarily reflect the position of the Council of Europe
Ljubljana, Spring 2010
1. Purpose and scope of the report
Beneficiary Parties of the IPA Social Security coordination and Social Security Reforms Programme, among them Kosovo, expressed an interest in managing labour migration by exploring the social security coverage of domestic, and especially migrating seasonal workers.
It should be noted that there are several policy measures to manage labour migration. Quite often so called pre-entry controls are exercised e.g. setting of quotas, demanding work and residence permits, requiring a labour market test etc. After entering the country the question of integration of migrants in the life of the society of a country of destination is emphasised. Also special rules might be in force for so called return migration, which might be voluntary or involuntary.
There are also several kinds of migration. Focus of the present report is on temporary and circular migration, advantages of which for all the concerned parties (migrant worker, countries of origin and destination) are emphasised especially in the last decade (although it has existed before). More specifically the focus is on one of the groups of temporary workers, i.e. seasonal workers. The conditions of entry to Kosovo are briefly presented and their social security position is analysed. It might be the same as domestic seasonal workers. However, the question is do (migrant) seasonal workers have limited, restricted or unlimited access to all social security schemes and benefits. And if not, should they have it. Somewhat less attention will be paid to irregular (illegal) migrant workers, since this topic was already researched in a rather detailed manner.[2]
Apart for the Beneficiary Parties’ specific reports, common regional report has been prepared. It analyses temporary and especially seasonal migration and access to social security Beneficiary Parties are required to provide according to the international and European legal standards. It also presents some of the best practices already indentified in the literature.
Gratitude should be expressed to the responsible persons from Kosovo for kindly providing valuable information for this report and SSCSSR team for perfect organisation.
2. Characteristics of seasonal work
2.1. Estimated seasonal work
It appears that there is lack of information regarding migration of workers from and to Kosovo. It is estimated that there are around 450.000 persons from Kosovo living abroad. Among them are mainly persons, who have migrated from 1960s onwards. There are no accurate statistics on the number of Kosovo migrants in the countries of destination.
It seems that no accurate statistics on seasonal work exist in Kosovo. This goes for seasonal workers coming to Kosovo as well as seasonal workers from Kosovo performing seasonal work in other countries.
It is argued that the season in which seasonal work is performed in Kosovo lasts mainly from summer to autumn. The registration procedure of foreign citizens when issuing work permits, applied lately, should provide some more accurate figures.
According to some estimates, seasonal employment of Kosovo workers was mainly concentrated to construction, hotel services, manufacturing, agriculture, and health care. Seasonal work was predominately exercised in low-skilled jobs. The Ministry of Labour and Social Welfare is implementing the Project Seasonal Employment of Students in Germany. During 2008, 182 students from Kosovo were employed as seasonal workers in Germany. For 2010 it is foreseen that for a three-month period (from June to August) 193 Kosovo students will be seasonally employed in Germany.
2.2. Entry procedures
It seems that mid 2009 a special Law on work permits and employment of foreigners has been issued.[3] All foreign citizens residing in Kosovo will immediately need to apply for work permit in one of the seven Regional Employment Centres. It appears that work permits will be subject to a quota, which will be determined each December.
Among others the new law defines seasonal work as a “job relationship in appointed time which can be prolonged three (3) until nine (9) months.”[4] It seems that work permit for seasonal work could not be issued for more than nine months per year. Additionally, it appears that seasonal work permit might not be renewable.[5]
Seasonal work might also be performed by (migrant) self-employed persons, who require a special work permit (work permit D or E).[6]
3. Social security of migrant seasonal workers
Access of (migrant) seasonal worker to social security schemes and benefits may depend on his/her labour status and coverage of various economically active groups in the social security system.
According to the UNMIK Regulation No. 2001/27 on Essential Labour Law in Kosovo employment contract might be concluded for indefinite or definite period of time. Since migrant seasonal workers might obtain seasonal work permit for not more than nine months, fixed-term contract is most likely to be concluded.
3.1. Access to health care
It seems that national health service, providing universal access to health care to all habitual residents in Kosovo is regulated. According to Section 7 of the Kosovo Health Law (Law No. 2004/4) health care system should be accessible to all citizens and all Communities of Kosovo.
However, the citizenship requirement seems to be abolished by the UNMIK Regulation No. 2004/31 on the promulgation of the Kosovo Health Law adopted by the Assembly of Kosovo. Citizenship was replaced with habitual residence. According to point B of the Regulation, Kosovo resident is a habitual resident of Kosovo or person who meets eligibility requirements for registration as a habitual resident of Kosovo. Hence, wherever in the Kosovo Health Law the term citizen is used in relation to a Kosovo resident, it has to be replaced with the later.
Health care has to be provided also to migrant seasonal workers (employed or self-employed), who habitually reside in Kosovo. Moreover, in emergency cases, every person (hence also illegal migrant) is entitled to the adequate and continual urgent health care, which should prevent serious or permanent health damage, as well as alleviate pain and reduce suffering.[7]
It appears that health insurance is foreseen by the Kosovo Health Law. It should be provided as “basic and private health insurance and shall be implemented as compulsory and voluntary contributions to the health insurance agencies and Health Insurance Fund.”[8] Reportedly, the law on health insurance in Kosovo has not been drafted and implemented yet. Some private companies seem to provide private health insurance for their employees. However, no specific data is available.
In case of employment injury or occupational disease migrant seasonal workers employed in Kosovo might be in a better legal position then self-employed migrant seasonal workers. Their employer is obliged to continue with paying the salary/wage to the employee during such absence from work.[9] Additionally, according to the UNMIK Regulation No. 2003/33 on the promulgation of the Law adopted by the Assembly of Kosovo on Occupational Safety, Health and the Working Environment (Section 2.10.) employer is liable for paying all expenses relating to the treatment of damage caused to the employee in the workplace.
3.2. Access to pension and invalidity benefits
According to the UNMIK Regulation No. 2005/20 amending UNMIK Regulation No. 2001/35 on Pensions in Kosovo, there are several kinds of pensions. Mandatory pensions seem to consist of Basic Pensions and Individual Savings Pensions.
Basic Pension is a universal pension payment by the Pension Administration to all persons habitually residing in Kosovo, who have reached pension age of 65 years. Since this pension is paid regardless of work history, and it seems that also without a certain residence period, (migrant) seasonal workers might be entitled, if they are habitual residents of Kosovo.
Employers and employees are required to pay contributions towards an Individual Savings Pension. Each of them has to pay five percent of the total wages, with voluntary payment up to 15 percent (each, employer and employee).[10] Assets are credited to an individual pension account and when reaching the pension age of 65 years a savings pension in a form of specified annuities might be purchased. There seems to be no exception for (migrant) seasonal workers, who might be eligible also for an Individual Savings Pension.
Additionally, employers may provide Supplementary Employer Pensions by establishing the Supplementary Employer Pension Funds. They are not-profit legal entities established in the form of trusts for management of pension assets. Individuals may also establish a Supplementary Individual Pension by contracting a licensed bank or other financial institution for a trust management of a defined contribution or defined benefit pension. Again, (migrant) seasonal workers are not excluded. However, the question might remain whether employers will pay premiums for migrant seasonal workers who may remain in Kosovo for only several months and whether migrant seasonal workers will be able to pay premiums, since they usually perform rather low paid work.
According to the UNMIK Regulation No. 2003/40 on the Promulgation of the Law on Disability Pensions in Kosovo adopted by the Assembly of Kosovo disability pension should provide financial support. Eligible are totally and permanently disabled persons aged between 18 and 65, incapable of any form of occupational activity. The amount of disability pension seems to be the same as the amount of the basic old-age pension. As (migrant) seasonal workers are not excluded, they might be entitled to a disability pension, if all the eligibility conditions are met.
3.3. No unemployment benefit
It seems that no unemployment benefit is foreseen in the Kosovo social security legislation. It appears that unemployment fund is planned. However, it might provide only active employment measures, rather than income replacement to the unemployed.[11] Hence, it seems that also (migrant) seasonal workers have no possibility to claim unemployment benefit in Kosovo.
3.4. Access to family benefits and social assistance
According to the Regulation No. 2005/46 on the Promulgation of the Law on Social and Family Services adopted by the Assembly of Kosovo family benefits seem to be divided into benefits in cash and benefits in kind. Social and family services include provision of direct social care, counseling, or, in exceptional circumstances, material assistance, for the benefit of people in need.
To be entitled to social and family services the residence or even stay in Kosovo seems to suffice. For the eligibility for services to adults residence of Kosovo seems to be met. Hence, also (migrant) seasonal workers might benefit, if residence in Kosovo is established.
Social assistance scheme is governed by the Regulation No. 2003/28 on the Promulgation of the Law adopted by the Assembly of Kosovo on the Social Assistance Scheme in Kosovo. It seems that in order to be eligible for social assistance, all family members must be habitually residing in Kosovo and the families must fall within one of the two categories (families with all dependent family members, or families with a family member able to work and carrying for a child under five or orphan under 15 years of age).[12]
4. Some conclusions and possible suggestions
It seems that more persons from Kosovo perform seasonal work in other Countries then foreigners in Kosovo. Therefore, there is lack of information on seasonal work and (migrant) seasonal workers in Kosovo. Although, this might change in the future, since seasonal work is defined and recent legislation regulates work permits also for seasonal workers.
It seems that for some benefits habitual residence (with other applicable conditions) is enough in order to be eligible. This might be to the benefit of (migrant) seasonal workers, although the question remains whether in the nine months, migrant seasonal workers are allowed to stay in Kosovo, habitual residence might be established. Migrant seasonal workers are productive members of the society and should enjoy all social security benefits in case certain social risk would materialise.
1
[1] All reference to Kosovo, whether to the territory, institutions or population, in this text shall be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo.
[2] Pieters, Danny, Schoukens, Paul, Illegal labour migrants and access to social protection. European journal of social security, No. 3/2004, p. 229-254.
[3] Law No. 03/L-136 of 10 July 2009.
[4] Ibidem Article 3.
[5] Ibidem Article 9 states that the Request for renewal of work permit, except seasonal work permit, shall be submitted one month prior to expiry of existing permit (and there seem to be no special deadlines stipulated for the renewal of the seasonal work permit).
[6] Work permit of type D (self-employment permit) is issued to self-employed foreign citizens, by limiting their activity in a definite geographical zone. The duration of this work permit is one year with right of renewal. Work permit of type E ( self-employment permit) is issued to self-employed foreign citizens for every activity and without geographical limitation. The validity of this work permit seems to be between three and five years.
[7] Section 4.6. of the Law No.2004/38 on the Rights and Responsibilities of the Citizens in the Health Care. Also here the UNMIK Regulation No. 2004/47 on the Promulgation of the Law on Rights and Responsibilities of Kosovo residents in the Health Care System adopted by the Assembly of Kosovo modified “citizen” into “Kosovo resident”.
[8] Section 7.2. of Kosovo Health Law.
[9] Section 22 of the Essential Labour Law in Kosovo.
[10] Section 7 of the UNMIK Regulation No. 2005/20 amending UNMIK Regulation No. 2001/35 on Pensions in Kosovo.
[11] Shaipi, Kushtrim, Report on the present state and future of social security in Kosovo, Kodi Institute, LPO, CARDS-Social Institutions Support Program (SISP), Prishtina, 2005, p. 7. Although, it seems that unemployment insurance is foreseen by the Kosovo Constitution (Article 51).
[12] Article 4 of the Law on Social Assistance Scheme in Kosovo.