1. GENERAL OVERVIEW
The right to employment is provided for in Article 49(1) of the Constitution which defines that "Everyone has the right to earn a means of living by lawful work that he/she has chosen or accepted himself. Each person is free to choose his profession and place of work as well as the manner of achieving professional or other qualifications or training". Employment in Albania is largely governed and regulated by the 1995 Labour Cod e1 , which is based on the Albanian Constitution and is in accordance with all international conventions ratified by Albania.
The Labour Code provides for the contractual regulation of the employment relationships between the employer and the employee by means of an individual or a collective labour agreement.
The Labour Code sets out the main legislation regulating and applicable to employment matters, as well as the hierarchy of such legislation which is as follows:
- the Constitution of the Republic of Albania;
- international conventions ratified by the Republic of Albania;
- the Labour Code and its sub-legal acts;
- the collective contract of employment;
- the individual contract of employment;
- internal regulations of the employer;
- local and occupational customs.
The Labour Code covers hiring, termination, work condition, nondiscrimination nature, right of employees to participate in trade unions, employment benefits, dispute resolution, secondment, etc. Other important aspects that are strictly connected with employment such as migration, safety, etc. are dealt with in other laws2 .
Any employer is obliged to report to the respective Labour Office any new employment position within seven days from the date of the creation of this position3 . The employer may employ people directly or use the services of state recruitment offices or private employment agencies to recruit employees. An employer may only hire an employee(s) who meets the minimum employment age as required by the Albanian legislation, which is 16 years of age4 . Exceptionally, children from 15 to 16 years old may be hired in easy jobs during the school vacations. The employer should notify the relevant tax authorities about the newly-hired employee at least 24 hours before commencement of the employment relationship. Furthermore, the employer is obliged to declare the newly-hired employee at the relevant Labour Office the moment such employment relationship begins.
2.2 Disabled persons
According to Law No. 7995 on Promotion of Employment, as amended, each employer is obliged to hire one disabled person for every 25 employees. An employer may hire an employee with a serious handicap instead of five employees with a mild handicap. In the event that the work position offered to a disabled employee requires special working conditions, the employer may request a subsidy from the respective Labour Office.
An employer who does not employ the recommended number of disabled people is obliged to pay into a separate account of the Fund of the National Employment Service ("Fund") an amount equal to the monthly minimum salary. The revenue of this Fund is used to create jobs for disabled people. According to the abovementioned law, the State Labour Inspectorate controls the fulfilment of the obligation for hiring the required number of disabled persons.
The Fund and relevant bank account for payments for disabled persons is not yet functional and a new law on promotion of employment that will abrogate the existing law is being discussed.
2.3 Foreign employees
Hiring of foreign employees is governed by Law No. 108 on Foreigners, as amended, ("Law on Foreigners") and by several decisions of Council of Ministers in implementation of this law.
Foreign citizens who intend to work and live in Albania need to be provided either with work permit, or work certificate, or certificate of exemption from the obligation to obtain a work permit, depending on their citizenship, the type of work and the duration of stay in Albania.
Law on Foreigners does establish a general requirement that work permits shall be issued to foreign employees, within the defined quota taking into account the labour market developments and needs in the Republic of Albania, as long as the number of foreigners working for an employer does not exceed 10 per cent of the total number of employees declared in the payroll for the previous 12 months if employer has an ongoing activity, and, 10 per cent of the total number of employees at the moment of application, if employer has recently started activity. Since the enactment of the Law on Foreigners, there has been no Council of Ministers' decision approving any annual quota.
The work permit is issued by:
- the relevant Labour Office corresponding to the business location of the employer and where the employee will perform his work, if the foreigner is residing in the Republic of Albania;
- General Directorate of the Employment National Service, if the employer which intends to employ the employee, carries out its business in more than one region, and if the foreigner is residing in the Republic of Albania;
- the corresponding Albanian Diplomatic mission of the Republic of Albania, in the Country of Origin, if the foreigner is residing in the Country of Origin.
Foreign citizens who need to obtain a visa to enter Albania, must apply for it after obtaining one of the abovementioned permits to work in Albania. The type of visa will depend on their intended length of stay in Albania and the type of work they will perform.
(i) Exemption from the obligation to obtain work permit/work certificate
EU citizens, Schengen countries citizens, Kosovo citizens and USA citizens are exempted from the obligation to be provided with work permit or work certificate. However, they must be provided with a certificate from the relevant authority stating that they are exempted from the obligation to obtain a work permit (i.e. Certificate of Exemption). The Certificate of Exemption is issued by the relevant Albanian authority within five working days from filing of the application.
(ii) Exemption from visa
As a rule, EU citizens, Schengen countries citizens, and other foreign citizens from countries that have entered into bilateral agreements or are part of multilateral agreements that include Albania, as defined by the secondary legislation (e.g. Australia, New Zealand, Canada, Israel, Chile, Japan, etc.), are entitled to enter Albania without visa and stay without a residence permit for an overall period of up to 90 days within 180 days period. USA citizens are entitled to enter Albania without visa and stay without a residence permit for an overall period of up to one year.
A residence permit is required when a foreigner is going to stay in Albania for more than 90 days within 180 days (either at one time or through various visits) within one year. Such a residence permit is issued by the Regional Directorate of Border and Migration, if the applicant fulfils the conditions provided for in the legislation. The residence permit is issued within 60 days from filing the application.
The procedure is administrative and, provided that the documentary requirements are fulfilled, there is in general no problem in acquiring the necessary residence and work permit.
The employer may not second an employee to another employer without the consent of the employee5 . In this event, the first contract between the employer and the employee remains in force. When an employer seconds his employee to another employer, then the first employer is obliged to grant the employee at least the same working conditions as those which the second employer has granted to the employee(s) of his enterprise carrying out the same work. The employer to whom the employee is seconded has the same obligations to the employee with regard to health protection, insurance and hygiene as to his other employees. In the event that the employer fails to fulfil his obligations to the seconded employee, then the second employer, through solidarity with the first employer, will be held liable for the fulfilment of the obligations to the employee.
1 1 Law No. 7961 of 12 July 1995, as amended by Law No. 8085 of 13 March 1996, Law No. 9125 of 29 July 2003, Law No. 10053of 29 December 2008 and Law No. 136 of 5 December 2015.
2 Law No. 8492 on Foreigners of 28 March 2013, Law No. 10237on Health and Safety at the Workplace of 18 February 2010, Law No. 7995 on Promotion of Employment of 20 September 1995, Law No. 9901 on Entrepreneurs and Companies of 2008, as amended, Law No. 9634 on Labour Inspection and State Labour Inspectorate of 30 October 2006, Law No. 7703 on Social Insurance in Republic of Albania of 11 May 1993, etc.
3 Article 21 of Law No. 7995 on Promotion of Employment, as amended.
4 Article 98 to 102 of the Albanian Labour Code.
5 Article 137 of the Labour Code.
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Originally published in SEE Legal Group
© Kolcuoğlu Demirkan Koçaklı Attorneys at Law 2017
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.