Univerzita Palackého v Olomouci
Právnická fakulta
Implementation and Enforcement
of EU Labour Law in the Visegrad Countries
Viktor Križan et al.
Olomouc 2014
Recenzenti:
doc. JUDr. Miloš Lacko, PhD.
JUDr. Peter Varga, PhD.
Autorský kolektiv:
JUDr. Viktor Križan, PhD., (vedoucí kolektivu)
prof. JUDr. Helena Barancová, DrSc.
mgr Michał Barański
mgr Kinga Czy ycka, PhD
JUDr. Ivica Hodálová, PhD.
Dr. Sára Hungler
mgr Agnieszka Huras
mgr Bła ej Mądrzycki
JUDr. Bc. Patrik Matyášek, Ph.D.
Dr. Beáta Éva Nacsa
doc. JUDr. et Mgr. Andrea Olšovská, PhD.
mgr Magdalena Stryja
JUDr. Eva Šimečková, Ph.D.
Neoprávn né užití tohoto díla je porušením autorských práv a m že zakládat
občanskoprávní, správn právní, pop . trestn právní odpov dnost.
První vydání
© Viktor Križan et al., 2014
© Univerzita Palackého v Olomouci, 2014
ISBN 978-80-244-4026-2
Reviewers:
doc. JUDr. Miloš Lacko, PhD.
JUDr. Peter Varga, PhD.
Collective of authors:
JUDr. Viktor Križan, PhD., (head of the collective of authors)
prof. JUDr. Helena Barancová, DrSc.
mgr Michał Barański
mgr Kinga Czy ycka, PhD
JUDr. Ivica Hodálová, PhD.
Dr. Sára Hungler
mgr Agnieszka Huras
mgr Bła ej Mądrzycki
JUDr. Bc. Patrik Matyášek, Ph.D.
Dr. Beáta Éva Nacsa
doc. JUDr. et Mgr. Andrea Olšovská, PhD.
mgr Magdalena Stryja
JUDr. Eva Šimečková, Ph.D.
Unauthorized use of this publication constitutes a violation of copyright
and may lead to civil, administrative or criminal liability.
First edition
© Viktor Križan et al., 2014
© Palacký University, Olomouc, 2014
ISBN 978-80-244-4026-2
3
Content
Preface........................................................................................................... 11
1 Visegrád countries and their legal system ................................................ 13
1.1 Czech Republic................................................................................. 13
1.1.1 Legal system.......................................................................... 14
1.1.2 Labour regulation .................................................................. 15
1.2 Hungary ............................................................................................ 20
1.2.1 Legal System ......................................................................... 21
1.2.2 Labour regulation .................................................................. 22
1.3 Poland ............................................................................................... 23
1.3.1 Legal System ......................................................................... 24
1.3.2 Labour regulation .................................................................. 25
1.4 Slovakia ............................................................................................ 26
1.4.1 Legal System ......................................................................... 27
1.4.2 Labour regulation .................................................................. 28
2 Antidiscrimination Law (Equality of Treatment) ..................................... 31
2.1 Introduction ...................................................................................... 31
2.1.1 A general framework for equal treatment
in employment and occupation ............................................. 33
2.1.2 Equal treatment between persons irrespective
of racial or ethnic origin ........................................................ 37
2.1.3 Equal pay for men and women.............................................. 39
2.1.4 Equal opportunities and equal treatment of men
and women in the labour market ........................................... 41
2.2 Antidiscrimination Law in the Czech Republic ............................... 43
2.2.1 Introduction ........................................................................... 43
2.2.1.1 New Labour Code.................................................... 44
2.2.1.2 The anti discrimination act (the Act N. 198/2009
Coll. on equal treatment and legal means
of protection against discrimination amending
some other laws) ...................................................... 45
2.2.1.3 The applicability of the current version of the law.. 46
2.2.2 Legal means of protection against discrimination ................ 49
2.2.2.1 Action under the anti discrimination act ................. 49
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
2.3
2.4
2.5
2.6
2.2.2.2 Judicial protection against discrimination –
burden of proof ........................................................ 50
2.2.2.3 The relation between the § 10 of the anti
discrimination act and § 13 of the Civil Code ......... 51
2.2.2.4 Other laws and their relation to § 10
of the anti discrimination act ................................... 51
2.2.3 Ombudsman .......................................................................... 51
2.2.4 Labour Inspectorates ............................................................. 52
2.2.5 The Act on Employment ....................................................... 53
2.2.6 Czech Legal Regulation – Summary..................................... 54
Antidiscrimination Law in Hungary................................................. 56
Antidiscrimination Law in Poland.................................................... 71
2.4.1 Introductory Remarks............................................................ 71
2.4.2 Equal Treatment in Employment and Prohibition
of Discrimination .................................................................. 71
2.4.3 Legal Definitions of Discrimination...................................... 75
2.4.3.1 Direct discrimination ............................................... 76
2.4.3.2 Indirect discrimination............................................. 77
2.4.4 Harassment and Sexual Harassment ..................................... 80
2.4.5 Violation of the Principle of Equal Treatment
in Employment and Positive Discrimination ........................ 83
2.4.6 Compensation of Discrimination .......................................... 87
2.4.7 No Retaliation ....................................................................... 88
2.4.8 Conclusions ........................................................................... 90
Antidiscrimination Law in Slovakia................................................. 90
Conclusion ........................................................................................ 99
3 Atypical employment relationships ........................................................ 105
3.1 Introduction .................................................................................... 105
3.2 Atypical employment relationship in the Czech Republic ............. 106
3.2.1 Introduction ......................................................................... 106
3.2.2 Part-time work..................................................................... 108
3.2.3 Fixed-term work .................................................................. 108
3.2.4 Agency work ....................................................................... 110
3.2.5 Agreements on work performed outside the employment .. 115
3.2.6 So called Švarc-system (civil-law or commercial
law agreement) .................................................................... 115
3.2.7 Posting of workers............................................................... 117
3.3 Atypical employment relationship in Hungary .............................. 119
3.3.1 Introduction ......................................................................... 119
Content
5
3.3.2 Part-time work..................................................................... 119
3.3.2.1 General form of Part-time work ............................ 119
3.3.2.2 Special forms of Part-time work............................ 120
3.3.2.2.1 Call on Work ......................................... 120
3.3.2.2.2 Job Sharing ........................................... 121
3.3.2.2.3 Fixed term work ................................... 121
3.3.3 Very Atypical Contractual Arrangements............................ 123
3.3.3.1 Employee Sharing ................................................. 123
3.3.3.2 Telework ................................................................ 123
3.3.3.3 Posted Workers ...................................................... 124
3.3.4 Agency Work....................................................................... 126
3.4 Atypical employment relationship in Poland ................................. 129
3.4.1 Fixed-term agreements ........................................................ 129
3.4.2 Part-time employment ......................................................... 133
3.4.3 Temporary workers employment ........................................ 137
3.4.4 Delegating employees to another country in order
to render services................................................................. 139
3.5 Atypical employment relationship in Slovakia .............................. 141
3.5.1 Atypical employment relationships..................................... 141
3.5.2 Part-time work..................................................................... 142
3.5.3 Fixed-term work .................................................................. 143
3.5.4 Agency work ....................................................................... 144
3.5.5 Very atypical contractual agreements.................................. 147
3.5.6 Paid work – civil-law or commercial law agreement,
non contract ......................................................................... 149
3.5.7 Posting of workers............................................................... 149
3.5.7.1 Posting of employees to Slovakia.......................... 150
3.5.7.2 Posting of employees from Slovakia ..................... 152
3.5.8 Summary ............................................................................. 154
3.6 Conclusion ...................................................................................... 155
4 Restructuring of enterprises.................................................................... 157
4.1 Introduction .................................................................................... 157
4.1.1 Safeguarding employees’ rights in the event
of transfers of undertakings................................................. 157
4.1.1.1 Transfer of employment relationships ................... 158
4.1.1.2 Employee information and consultation ................ 159
4.1.2 Protection of employees in the event of the insolvency
of their employer ................................................................. 159
4.1.2.1 Guarantee institutions ............................................ 160
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
4.1.2.2 Social security ....................................................... 160
4.1.2.3 Transnational situations ......................................... 161
4.1.3 Collective redundancies ...................................................... 161
4.1.3.1 Consultations ......................................................... 161
4.1.3.2 Information to be provided by the employer ......... 162
4.1.3.3 Procedure for collective redundancies................... 162
4.2 Restructuring of Enterprises in the Czech Republic....................... 162
4.2.1 The legislation ..................................................................... 163
4.2.2 Ways to transition the rights and obligations
of the industrial relations..................................................... 163
4.2.3 Transfer of some employees ............................................... 164
4.2.4 Effects of the transfer .......................................................... 165
4.2.5 Information duty.................................................................. 165
4.2.6 Deterioration of working conditions ................................... 166
4.2.7 Collective redundancies ...................................................... 166
4.2.8 Reorganization .................................................................... 167
4.2.9 Protection of employees at employer’s insolvency ............. 168
4.3 Restructuring of Entreprises in Hungary ........................................ 170
4.3.1 Transfer of undertaking ....................................................... 170
4.3.2 Collective redundancies ...................................................... 172
4.3.3 Insolvency ........................................................................... 175
4.4 Restructruring of Enterprises in Slovakia....................................... 177
4.4.1 Restructuring of enterprises ................................................ 177
4.4.1.1 Transfer of undertaking ......................................... 177
Information and consulting obligation
of the employer ...................................................... 178
Termination of employment .................................. 178
4.4.2 Collective redundancy......................................................... 180
4.4.2.1 Material scope of application ................................ 180
4.4.2.2 The duty of consultation– employees’
representatives, employees .................................... 181
4.4.2.3 Information obligation – Office of Labour,
Social Affairs and Family ...................................... 182
4.4.2.4 Exceptions ............................................................. 183
4.4.2.5 Penalties for failure to comply with obligations.... 183
4.4.3 Insolvency of the employer ................................................. 183
4.4.4 Conclusion........................................................................... 185
5 Working time .......................................................................................... 187
5.1 Introduction .................................................................................... 187
Content
7
5.2 Working time in the Czech Republic.............................................. 188
5.2.1 Introduction ......................................................................... 188
5.2.2 Working hours (§ 78 Labour Code) .................................... 188
5.2.2.1 Fixed working hours per week
(§ 79 of Labour Code) ........................................... 189
5.2.2.2 Working hours scheduling (§ 81 Labor Code) ...... 190
Balanced working hours scheduling
(§ 78 of the Labour Code) ..................................... 191
Unbalanced working hours scheduling
(§ 78 and § 83 of Labour Code) ............................ 191
5.2.2.3 Night work (§ 78 of Labour Code) ........................ 192
5.2.2.4 Working overtime (§ 78 of Labour Code) ............. 194
Working overtime with shortened working hours .. 195
5.2.2.5 Specific institutes of working time ........................ 195
Standby duty (§ 78 Labour Code) ......................... 195
Flexible working hours
(§ 85 of the Labour Code) ..................................... 196
Specific working hours
(§ 86–87 of Labour Code) ..................................... 197
5.2.3 Period of rest (§ 78 of Labour Code) .................................. 198
5.2.3.1 Lunch break and the break to take a rest
(§ 88 of Labour Code) ........................................... 198
5.2.3.2 Safety breaks (§ 89 of Labour Code) .................... 199
5.2.3.3 A period of continuous rest between two shifts
(§ 90 of Labour Code) ........................................... 200
5.2.3.4 The period of continuous rest in a week
(§ 92 of the Labour Code) ..................................... 200
5.2.3.5 Holiday (§ 211–223 of Labour Code) ................... 201
5.2.4 Derogations and exemptions ............................................... 202
5.2.4.1 Further agreed over-time work
in health service sector .......................................... 202
5.3 Working time in Poland .................................................................. 203
5.3.1 Introduction ........................................................... 203
5.3.2 Working time ......................................................... 204
5.3.3 Periods of Rest ....................................................... 207
5.3.4 Derogations and exemptions ................................. 208
5.3.5 Conclusion ............................................................. 211
5.4 Working time in Slovakia ............................................................... 212
5.4.1 Introduction ......................................................................... 212
5.4.2 Working time ....................................................................... 213
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
5.4.2.1 Definitions ............................................................. 213
5.4.2.2 Length of working time ......................................... 214
5.4.2.3 Pattern of work ...................................................... 215
5.4.2.4 Night work ............................................................. 217
5.4.2.5 Overtime work ....................................................... 218
5.4.2.6 Specific institutes of working time ........................ 219
5.4.3 Periods of Rest .................................................................... 220
5.4.3.1 A rest break ............................................................ 220
5.4.3.2 Continuous daily rest ............................................. 220
5.4.3.3 Continuous rest in the week .................................. 221
5.4.3.4 Days of rest ............................................................ 222
5.4.3.5 Vacation ................................................................. 222
Annual Vacation .................................................... 222
Vacation for Effective Days................................... 223
Additional Vacation ............................................... 223
5.4.4 Derogations and exemptions ............................................... 223
5.4.5 Conclusion........................................................................... 224
5.5 Conclusion ...................................................................................... 226
6 Social dialogue ....................................................................................... 227
6.1 Introduction .................................................................................... 227
6.1.1 Information and Consultation: The Directive
on European Works Councils or Procedures ....................... 229
6.1.1.1 The dominant influence of an undertaking ............ 230
6.1.1.2 Creation of a European Works Council ................. 230
6.1.2 General framework for informing and consulting
employees............................................................................ 231
6.1.3 Statute for a European Company ........................................ 235
6.1.3.1 Regulation on the Statute for a European
Company................................................................ 235
6.1.3.2 Council Directive Supplementing the Statute
for a European Company with Regard
to the Involvement of Employees .......................... 237
6.2 Social dialogue in Poland in light of Directive 2002/14/EC
and the Act on Information and Consultation of Employees
and Act on European Works Councils ............................................ 238
6.3 Social dialogue in Slovakia ............................................................ 252
6.3.1 Employees’ representatives ................................................. 253
6.3.1.1 Employees’ representatives ................................... 253
6.3.1.2 European work council .......................................... 255
Content
9
6.3.2 Strike ................................................................................... 256
6.3.3 Agreements with employees’ representatives ..................... 257
6.3.3.1 Collective agreement ............................................. 257
6.3.3.2 Agreement with work council ............................... 258
6.3.3.3 Transnational company agreement ........................ 259
6.3.4 Conclusion........................................................................... 259
6.4 Conclusion ...................................................................................... 259
7 General conclusion ................................................................................. 265
The authors of the individual parts:
prof. JUDr. Helena Barancová, DrSc.
mgr Michał Barański
mgr Kinga Czy ycka, PhD
JUDr. Ivica Hodálová, PhD.
Dr. Sára Hungler
mgr Agnieszka Huras
JUDr. Viktor Križan, PhD.
mgr Bła ej Mądrzycki
JUDr. Bc. Patrik Matyášek, Ph.D.
Dr. Beáta Éva Nacsa
doc. JUDr. et Mgr. Andrea Olšovská, PhD.
mgr Magdalena Stryja
JUDr. Eva Šimečková, Ph.D.
chapter 5.4
chapter 5.3
chapter 3.4
chapter 4.4
chapters 3.3, 4.3
chapter 6.2
chapters 1, 2.1, 2.5, 2.6, 4.1, 6.1,
6.3, 6.4, 7
chapter 2.4
chapters 3.1, 3.2, 3.6, 4.2
chapter 2.3
chapters 3.5, 5.1, 5.4, 5.5
chapter 6.2
chapters 2.2, 5.2
11
Preface
This publication is the result of partial solutions grant awarded by the Visegrad Fund to project titled “Application and implementation of EU law in the
V4 countries”. The project is focused on experience with application of EU
law in Visegrad countries (Czech Republic, Hungary, Poland, and Slovakia)
in key areas of public and private law and the objective of the project is to
analyze experiences with EU law application in V4 countries and share this
know-how with V4 neighbouring countries that are in the process of EU approximation. This inter-university project has, in addition to the impact in the
V4 member countries, facilitate the integration of other countries in the EU, in
particular as regards the Balkan states, or countries involved in the so-called
Eastern Partnership.
Labour law governs legal position of very significant group of people,
without work of which the economic development would be impossible. The
publication herein includes the fundamental areas of the subject of European
labour law, which currently affects very substantially not only business environment, but also the quality of life of the employees themselves. The reader
receives an overview on implementation EU law into legal system of V4 countries, their experiences and, where appropriate, proposals to amend the legislation. Given the breadth of issues we pay attention only to private law aspect
of employment law.
Authors
13
1
Visegrád countries and their legal system
The Visegrád Group, also called the Visegrád Four or V4, is an alliance of
four Central European states – Czech Republic, Hungary, Poland and Slovakia – for the purposes of cooperation and furthering their European integration.
It is also sometimes referred to as the Visegrád Triangle, since it was an alliance
of three states at the beginning – the term is not valid now, but appears sometimes even after all the years since the dissolution of Czechoslovakia in 1993.
The Group originated in a summit meeting of the heads of state or government of Czechoslovakia, Hungary and Poland held in the Hungarian castle
town of Visegrád on 15 February 1991.
The Czech Republic and Slovakia became members after the dissolution
of Czechoslovakia in 1993. All four members of the Visegrád Group became
part of the European Union on 1 May 2004.
1.1
Czech Republic
Czech Republic is a landlocked country located in the region of Central Europe. It is a state neighbouring with Germany in the west, Poland in the north,
Slovakia in the east and Austria in the south. It is situated in the area of three
historic countries (Bohemia, Moravia and part of Silesia). The overall area of
the Czech Republic is 78 867 square kilometres. As of 2012 the population of
the Czech Republic was approximately 10.5 million. As far as the administration of the Czech Republic is concerned, the country is divided into 14 selfgoverning regions. Prague is the capital of the Czech Republic.
Czech Republic is a law-abiding state respecting the rule of law with a liberal state regime and the political system based on free competition of political parties and movements. The President of the Republic is the head of
state, the bicameral Parliament of the Czech Republic is the highest legislative
body in the country. The Czech Republic is the member of the UNO, NATO,
OECD, WTO, Council of Europe, OBSE, EEA, European Customs Union,
EU (since May 1, 2004), Schengen Area and the Visegrad Group. Czech law,
often referred to as the legal order of the Czech Republic (právní ád České
republiky), is the system of legal rules in force in the Czech Republic, and in
the international community it is a member of. Czech legal system belongs to
the Germanic branch of continental legal culture (civil law). Major areas of
14
Implementation and Enforcement of EU Labour Law in the Visegrad Countries
public and private law are divided into branches, among them civil, criminal,
administrative, procedural and labour law, and systematically codified.
1.1.1 Legal system
Written law is the basis of the legal order, and the most important source
of law are: legal regulations (acts of parliament, as well as delegated legislation), international treaties (once they have been ratified by the parliament
and promulgated), and such findings of the Constitutional Court of the Czech
Republic, in which a statute or its part has been nullified as unconstitutional.
The system of law and justice in the Czech Republic has been in constant
development since the 1989 regime change. In 1993, the Constitution of the
Czech Republic has been enacted, which postulates the rule of law, outlines
the structure and principles of democratic government, and declares human
rights and rights of the citizen. Since 2004, the membership in the EU means
the priority of European Union law over Czech law in some areas. Recently,
a brand new Criminal Code entered into force in 2010, and the Civil Code will
follow in 2014.
Sources of Czech law are (in this hierarchical order):
the Constitution (Ústava) and constitutional acts (ústavní zákony),
international treaties ratified by the Parliament (mezinárodní smlouvy ratifikované parlamentem),
statutes adopted by the Parliament (zákony p ijaté parlamentem), published
decisions of the Constitutional Court,
derived legislation: government orders (na ízení vlády) and notifications
of ministries (vyhlášky ministerstev),
legislative acts of territorial self-government bodies: regional ordinances
(krajské vyhlášky) and municipal ordinances (obecní vyhlášky).
Acts of parliament and other legal regulations enter into force on the day
they are promulgated (published) in the official Collection of Laws (Sbírka
zákon , abbreviated as Sb. – Coll. – when referring to statutes), although they
may take effect at a later date.
The Constitution of the Czech Republic as published in the Collection of
Laws Czech constitution is written, and it consists of several constitutional acts
(one of them the Constitution of the Czech Republic), together they are known
as the constitutional order of the Czech Republic (ústavní po ádek).
The constitution can be viewed as entrenched, because constitutional statutes are more difficult to adopt, amend, supplement or repeal them than ordinary
1 Visegrád countries and their legal system
15
laws of the country. A special majority (constitutional supermajority) is required
of three-fifths of all Deputies and a qualified majority of three-fifths of all Senators present. This is to promote continuity and stability of the political system.
The 1992 Constitution of the Czech Republic declares sovereignty (selfgovernment) of the people and the values of freedom and democracy. It defines
the separation of the three powers in a system of Czechs and balances. It gives
the legislative power to the popularly elected Czech Parliament consisting of
two chambers, the Chamber of Deputies and the Senate. The executive power
is divided between the President and the Prime Minister. It describes the functioning of the judiciary, especially the Constitutional Court. Two more institutions are established, the Czech National Bank and the Supreme Audit Office.
The Charter of Fundamental Rights and Basic Freedoms (Listina základních
práv a svobod) is a bill of rights document enacted in 1991 by the Czechoslovak
Federal Republic. In the Czech Republic it was kept in its entirety and forms
a part of the constitutional order (i.e. has the same legal force as the Constitution). It postulates the sanctity of natural human rights and fundamental freedoms as well as citizens’ (political) rights, the equality before the law, rights
of minorities and so on.
Theoretically, case law is not defined as a source of law in the Czech Republic. Despite that, the decisions of courts, namely supreme courts and the
Constitutional Court have a significant influence over the Czech legal system
since 1989. Findings of the Constitutional Court are considered a source of law,
and are binding for general courts. If a lower court is to rule against “consistent
adjudications” of the Supreme Court on the point of law, it must give detailed
reasoning, and this can often be a reason for a successful appeal. This system
is largely based on judiciary’s own interpretation of the Constitution, arguing
that it gives citizens predictability and fairness. The most significant judgments
of both courts are published in the official Collection of Laws.
1.1.2 Labour regulation
Labour Law is one of the parts of the legal order in the Czech Republic.
This are of law regulates social relations involving employments relations. In
these relations there are two parties – the employers and the employees. These
two cooperate in the employment market where they negotiate the conditions
of work. The dependent work is mostly carried out within an employment
relation. The rights and duties are regulated in the Labour Code. The Labour
Law is an independent area of law belonging to the area of Private Law. The
Labour Law singled out of Civil Law and the Civil Code can be used to deal
with employment relations based on the subsidiarity principle.
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
Labour law has a long history as part of private law. Private law on the
territory of the present Czech Republic was codified in the 19th century. The
General Civil Code (AGBG) from year 1811 regulated two types of contracts:
the “service contract” and the “on work contract”. Later, public components
were introduced in the originally private system of labour law. Collective agreements began to be concluded to supplement present protective labour regulation. The amendment of the General Civil Code adopted in 1916 (providing for
a service contract), stipulated some mandatory provisions to enhance the level
of labour protection. After the First World War new created Czechoslovakia
adopted former labour regulations, reformed and improved them.
After 1948 the new communist regime transformed former law according
to the socialist principles. The so-called “legal two-year plan” amended practically all parts of the law and there was an attempt to unify the labour law.
Unification of the labour law was crowned by the adoption of the Labour Code
(Act No.65/1965 Coll.), which came into effect on 1 January 1966.
Labour relations are regulated, in particular, by written labour law (the Labour Code) and, within its framework, by collective agreements and individual
employment contracts. The new Labour Code (Act. No. 262/2006 Coll.) was
adopted in 2006.
Provisions of the Labour Code are generally applicable and cover all employment relations between employer and employee. Employment relations
of certain groups of employees are subject to special legislation. This is the
case of public servants in administrative authorities, judges, State prosecutors,
members of armed forces, citizens performing public functions other than those
based on employment relationship etc.
Regulations concerning collective labour relations in collective bargaining can be found in the Labour Code and other labour legislation as well as
in regulations covering the process of conclusion of collective agreements, in
particular in the Collective Bargaining Act No.2/1991 Coll., as subsequently
amended. The existing standards do not define the contents of collective agreements. The decision in this regard is left to the parties of the agreement. Provisions which are more favourable for workers can be agreed only in cases where
the Code has expressly provided for such arrangements. An exception to this
rule are provisions concerning remuneration in accordance with Act 1/1992
Coll., on wages, remuneration for stand-by and average earnings, as amended,
by which pay in the private sector has been completely liberalized.
Very important are regulations concerning the freedom of association,
contained in Act No.83/1990 Coll. on association of citizens, as subsequently
amended. Act No.120/1990 Coll. concerning certain relations between trade
1 Visegrád countries and their legal system
17
union organizations and employers, as amended, provides a guarantee for the
trade union plurality.
Dependent work is carried out and based on the principle of seniority of
the employer and subordination of the employee. The employee is obliged to
carry out the work personally according to the employer’s order, on behalf of
the employer, for a wage, salary or remuneration for the work done, during the
working hours, or otherwise set or stipulated time period at the workplace, or
a different place stipulated in the contract at the employer costs and on the employer’s own responsibility. The dependent work can only be carried out within
employment relations. An agency job is also regarded as a dependent work.
An employee is a person who is older than 15 years and who has completed
his/her mandatory education. The employer cannot make an agreement with
this person stipulating as the day of commencement of this person’s work the
day preceding the completion of this person’s mandatory education.
Child labour (with children up to the age of 15) is prohibited. Children can
only carry out activities such as artistic, cultural, advertising or sport activities
following the conditions stipulated by the Act N. 435/2004 Coll.
The employees at the age between 15 and 18 are called minor employees.
There are special working conditions provided for the minor employees in the
Labour Code. Under the § 252 clause 2 of the Labour Code an agreement to indemnify the employer by the employee cannot be made before the day when the
person has attained the age of 18. Thus the term minor must be distinguished
from the term “adult” used in the Civil Code, under which a person is of full
age on the day when he/she has attained the age of 18.
§ 10 of the Civil Code define the conditions under which an employee can
be deprived of his/her legal capacity or under which the legal capacity can
be limited. A natural person can be deprived of his/her legal capacity by the
court in such cases when the person, due to a mental handicap, which is not
temporary, is not able to enter into legal relations. The court can also limit the
natural person in entering into legal relations and at the same time the court
defines the scope of such a limitation (listing what the person can or cannot
do). This is done in cases when the person due to a mental illness, which is not
temporary only, or because of excessive consumption of alcoholic beverages or
other drugs or toxic substances is only able to enter into some legal relations.
The employer can be a natural person or a legal person.
The legal capacity of a natural person to own rights and duties as an employer begins upon the birth of the natural person. A child cannot act on his/her
own and so there is a legal guardian appointed by the court acting on behalf of
the child. The legal capacity to enter into employment relations through his/her
18
Implementation and Enforcement of EU Labour Law in the Visegrad Countries
own acts and to accept duties in employment relations begins on the day when
the natural person attains the age of 18.
Generally, legal persons have the legal capacity to be employers, regardless
of the nature of the legal person. Labour Law does not regulate the creation of
legal persons. Instead it adopts the legal regulation of other areas of law, namely
the legal regulation covered in Commercial and Civil Law.
In the employment relations it is essential to know who has the right to enter
into Labour Law acts on behalf of the legal person. Those who are entitled to
enter into legal acts under the Act upon creation of a legal person, or under
the fundamental charter or by statute are allowed to enter into legal acts on
behalf of the legal person. These are the authorized bodies. Thus the authorized
bodies act on behalf of the legal persons. This body can either be collective
(e.g. a board of directors in case of a joint stock company) or individual (such as
e.g. the director of a state-owned enterprise). In some cases such as e.g. in case
of liquidation the capacity of an authorized body is entirely or partly shifted on
another body, i.e. it is shifted on the liquidator or official conservator. Other
workers or members are also entitled to enter into legal acts on behalf of the
legal person if this is stipulated so in the internal regulation of the company
or if this is usual with respect to their work focus. Authorized employees are
only entitled to carry out certain legal acts based on the internal regulations
of the employer.
Employment is the most important and most frequent employment relation. It is a certain repeated working activity which is the subject-matter of the
employment relation. The employee is obliged to carry out this activity for the
employer in exchange for the wage received. The employee must carry out the
stipulated work personally, i.e. he/she is irreplaceable in the performance of
the duties assigned by the employer. The performance of these duties within
employment is referred to as a dependent work. Employment is a relationship
which is based on obligation, i.e. the employment is based on working obligation on the part of the employee and on the part of the employer there is a power
of disposition corresponding to the employee’s obligation, which means that
the employer is entitled to use the employee’s labour force. Employment is
also a valued relation, which means that the employee is entitled to a wage for
the work done and he/she cannot effectively give up this right.
Employment is formed through employment contract between the employee
and the employer. Appointment, which is only applied with senior employees,
is another way of formation of employment. The conditions of such an appointment are defined in the Labour Code. Some special legal regulations or by-
1 Visegrád countries and their legal system
19
laws (e.g. by-laws of cooperatives) require that the staffing of such vacancies
should be done through election. In such cases the employment is not formed
through the election process, however, the election is considered to be a prerequisite. If this pre-requisite has been satisfied, then it is possible to make an
employment contract.
The control has a nature of an administrative supervision – public administration executor supervises over the conduct of non-subordinate entities
comparing it with the conduct required by the legal rules. When deficiencies
occur the public administration executor imposes correctional measures or
other sanctions.
Supervisory bodies dealing with employment relations are the following:
Ministry of Labour and Social Affairs – is the supreme advisory body. It
conducts and controls the labour inspection and the Employment Agency.
It supervises the legality of the government when securing the state policies
of employment and the employment agencies activities
State Labour Inspection Authority – this body has a nature of a general
supervisory body. It was established through the Act N. 251/2005 Coll.,
upon the labour inspection. The subject-matter of this supervisory activity
is the following of the duties resulting from legal regulations. Under these
regulations the employees, the specific trade union bodies or the council of
employees or the deputies for the areas of safety and health protection at
work have rights or duties in the employment relations including the legal
regulations dealing with the remuneration of employees, the compensation
for the employees to make up for the expenditures, under the legal regulations stipulating the working hours and the period of rest, under the legal
regulations securing the safety at the workplace, under the legal regulation
dealing with the employment of female workers, minor employees, employees looking after children and the employees who have proved that they
have (mostly on their own) been looking after a dependent natural person
in a long-term manner, under the legal regulation covering the performance
of artistic, cultural, sport and commercial activity performed by children.
The State Labour Inspection Authority controls the observing of collective
contracts in the parts where the individual employment relations rights are
regulated. It also controls the observing of the internal regulations of companies in accordance with the § 305 of the Labour Code. The law dealing
with the labour inspection contains extensive passages on sanctions which
can be imposed in cases when the duties of either employees or employers
20
Implementation and Enforcement of EU Labour Law in the Visegrad Countries
have been broken. The law regulating the labour inspection distinguishes
between the violations of natural persons and administrative delicts of legal
persons.
Employment Agency – secures the observance of legal regulations connected with the job market and the subsidies and protection of the employees
in case of insolvency of the employer. It also controls the employment of
foreign citizens.
The Office for the Protection of Personal Data – under the Act N. 101/2000
Coll., upon the personal data protection it is also a personal file kept about
every employee kept by the employer which is also a file containing personal data. The Office supervises over the duties of the employer in connection with the protection of the personal data.
Trade Unions – under the § 322 of the Labour Code trade unions are allowed
to carry out control over the safety and health protection at the workplace.
The trade union authority has the right to draw the attention of the employer
towards deficiencies found at the workplace. In such cases it can also inform
the labour inspection.
Specialized supervisory authorities – The Technical Inspection Institute,
the Czech Mining Office, The Chief Public Health Officer of the Czech
Republic, The State Office of Nuclear Safety, The Railway Inspection
Industrial disputes can be divided into individual industrial disputes and
collective industrial disputes. Individual industrial disputes are those which
have arisen from individual industrial relations, i.e. the disputes between the
employee and the employer. Such disputes are heard by the courts of general
jurisdiction. In case of district courts it is the senate composed of 1 judge and
two lay judges. There is no special judiciary dealing with industrial disputes
in the Czech Republic.
Collective industrial disputes are those which have arisen from collective
industrial relations, i.e. those disputes between the employer and the trade union
organization. Such disputes are settled by mediator and industrial arbitrator.
1.2
Hungary
Hungary is a landlocked country in Central Europe. It is situated in the
Carpathian Basin and is bordered by Slovakia to the north, Ukraine and Romania to the east, Serbia and Croatia to the south, Slovenia to the southwest and
Austria to the west. The country’s capital and largest city is Budapest. Hungary
is a member of the European Union, NATO, the OECD, the Visegrád Group,
1 Visegrád countries and their legal system
21
and the Schengen Agreement. The official language is Hungarian, also known
as Magyar, which is part of the Finno-Ugric group and is the most widely spoken non-Indo-European language in Europe.
Administratively, Hungary is divided into 19 counties. In addition, the capital (főváros), Budapest, is independent of any county government. The counties
and the capital are the 20 NUTS third-level units of Hungary.
The counties are further subdivided into 174 (1 January 2011) subregions
(kistérségek), and Budapest is its own subregion. Since 1996, the counties and
City of Budapest have been grouped into 7 regions for statistical and development purposes. These seven regions constitute NUTS’ second-level units of
Hungary.
There are also 23 towns with county rights (singular megyei jogú város),
sometimes known as “urban counties” in English (although there is no such
term in Hungarian). The local authorities of these towns have extended powers,
but these towns belong to the territory of the respective county instead of being
independent territorial units.
1.2.1 Legal System
Hungary is an independent, democratic constitutional state. According to
the amended Constitution Hungary is a parliamentary republic. Hungary has
a civil law system. The sources of Hungarian law are the Acts of Parliament,
governmental and ministerial decrees, which are valid only if published in the
Official Gazette, and decrees of local governments. The legal system of the
Republic of Hungary accepts the universally recognized rules and regulations
of international law, and shall harmonize the internal laws and statutes of the
country with the obligations assumed under international law. Hungary has
become a member of the European Union in 2004.
The Hungarian legal system is based on the German-Austrian legal system,
and has a statue based civil and criminal law system. The main sources of law
are:
the constitution,
acts of parliament,
governmental and ministerial decrees,
EU law.
The legal system of the Republic of Hungary accepts the universally recognized rules and regulations of international law, and shall harmonize the
internal laws and statutes of the country with the obligations assumed under
22
Implementation and Enforcement of EU Labour Law in the Visegrad Countries
international law. Hungary is a signatory to a number of international conventions and bilateral treaties which provide for the recognition and enforcement
of awards from other states.
1.2.2 Labour regulation
Hungarian legislation follows both European legislation and international
trends in the field of labour law while showing characteristics inherent in national regulation. That is why this article attempts to present a brief overview
of the main lines of Hungarian labour law for those who wish to enter into an
employment relationship in Hungary. The present article summarises the currently effective regulations of labour law, while at the same time gives special
emphasis on rules introduced by the new Labour Code as of 01 July 2012.
As of July 1st 2012 the new Labour Code (Act I of 2012) will contain the
effective rules of labour law, which code replaces the currently effective Labour
Code (Act XXII of 1992). The provisions of this Act are supplemented by the
Civil Code (Act IV of 1959, hereinafter the Civil Code) as the code of private
law that sets the scene in the background. Moreover, Act I of 2007 concerning
the entry and stay of persons that have the right to free movement and stay
as well as Act II of 2007 concerning the entry and stay of nationals of third
countries have significance for foreign nationals, as these transpose the rules
of the EU directive on long-term stay and the Schengen Code of border control
into Hungarian law. The regulation is very similar to the labour laws of other
European countries in that it has only minimum requirements as to the content
of employment contracts.
It should be highlighted that the rules of performing work are addressed
under separate legislation in the case of employees in the public sector and
in public administration which, in many a case, deviate from the provisions
of the Labour Code. Act XXXIII of 1992 on the status of public servants and
Act XXIII of 1992 on civil servants contain rules other than the common ones
owing to the social role and significance of these two careers. In the case of
employees subject to their personal scope, the Labour Code shall be applied to
them with a general character or only if other regulation is unavailable.
As regards the public sector, priority regulation applies to persons working
as members of the regular forces who are subject to different regulation for
reasons of national and public security (Act XLIII of 1996 on the service of
the professional members of the armed forces).
A system of guarantees based on the basic principles permeates the whole
of the regulation which protects both the employer and the employee, such as
the principles of mutual cooperation, good faith and fairness, the obligation of
1 Visegrád countries and their legal system
23
the parties to provide information on a mutual basis, the right to representation
of interest and self-organisation, the ban on discrimination, the protection of the
weaker party, positive discrimination based on social grounds, the requirement
of proper legal practice etc. If legal assurances are violated, the injured party
has the right to seek remedy at a court of law.
In Hungary, one can become employed from the age of 16 and young employees below the age of 18 are eligible for certain preferences. For example,
young employees should not be assigned to work that may have disadvantageous consequences with regard to their physical build and development;
therefore such jobs can be filled by them only if specific working conditions
are met and after prior medical examination. However, pupils of 15 years of
age from primary schools, vocational schools and secondary schools may also
establish an employment relationship, but only during school holidays. In this
case, agreement by their legal representative is also required for the establishment of an employment relationship. Moreover, young employees of school
age may be employed under rules other than the ones above on an exceptional
basis for artistic, sports, modelling or advertising activities as specified by law,
with permission from the public guardians’ service.
Employees lacking capacity may only establish employment relationship
for a position they can hold permanently and continuously with regard to their
health conditions. Legal declarations of such persons shall be made by their
legal representative. Certainly, providing the conditions and tools for the performance of work is the responsibility of the employer in accordance with the
European models; similarly, it is a fundamental requirement for the employee to
report to work at the beginning of the working hours in a condition that makes
him capable of and suitable for performing work.
Pursuant to the provisions of the Labour Code, any employment relationship can be established, amended and terminated in writing only.
1.3
Poland
Poland, officially the Republic of Poland, is a country in Central Europe,
bordered by Germany to the west; the Czech Republic and Slovakia to the
south; Ukraine, Belarus to the east; and the Baltic Sea and Kaliningrad Oblast,
a Russian exclave, and Lithuania to the north. The total area of Poland is
312,679 square kilometres, making it the 69th largest country in the world and
24
Implementation and Enforcement of EU Labour Law in the Visegrad Countries
the 9th largest in Europe. Poland has a population of over 38.5 million people,
which makes it the 34th most populous country in the world and the sixth
most populous member of the European Union, being its most populous postcommunist member. Poland is a unitary state made up of 16 voivodeships.
1.3.1 Legal System
The Polish law, or legal system in Poland, has been developing since the
first centuries of Polish history, over 1,000 years ago. The public and private
laws of Poland are codified.
The Constitution of Poland is the supreme law in contemporary Poland,
and the Polish legal system is based on the principle of civil rights, governed
by the code of Civil Law. Poland’s current constitution was adopted by the
National Assembly of Poland on 2 April 1997, approved by a national referendum on 25 May 1997, and came into effect on 17 October 1997. It guarantees
a multi-party state, the freedoms of religion, speech and assembly, and specifically casts off many Communist ideals to create a ‘free market economic
system’. It requires public officials to pursue ecologically sound public policy
and acknowledges the inviolability of the home, the right to form trade unions,
and to strike, whilst at the same time prohibiting the practices of forced medical
experimentation, torture and corporal punishment.
The sources of Polish are divided into two categories: universally binding
law and internal law.
According to the latest Constitution, the sources of universally binding
Polish law are: the Constitution itself as the supreme law of the land, the statute
(“ustawa”), ratified international agreement and regulation (“rozporządzenie”).
In addition to these sources it has to be mentioned as well that the enactments
issued in the course of operation of organs constitute the universally binding
law in the territory of the organ that issued such enactments (local law).
In order to come into force, the statutes, regulations and enactments of local
law have to be published. The statutes also regulate the conditions for promulgations of ratified international agreements and other international agreements;
however, in general they are published in the same manner as statutes.
The aforementioned acts are published in the Journal of Laws of the Republic of Poland (“Dziennik Ustaw”). In addition, there are a number of local
law journals that are published in province’s official journals.
All other acts constitute a part of internal law. They bound only the organs
of public administration and self-government which are subordinated to the
issuing organs and organizational units.
1 Visegrád countries and their legal system
25
The examples of such acts are: resolutions (“uchwała”) adopted by the
Sejm, Senate and the Council of Ministers, orders (“zarządzenie”) issued by the
President of the Republic of Poland, the President of the Council of Ministers
and ministers, the acts of local law that are not universally binding and nonratified international agreements.
These acts are published in the Journal of Laws of the Republic of Poland
(“Dziennik Ustaw”), mostly in the Official Journal of the Republic of Poland
(“Monitor Polski”) and in the local official journals.
1.3.2 Labour regulation
Labour law is primarily regulated by the Act of 26 June 1974 Labour Code,
which governs the rights and obligations of employees and employers. A number of other Acts and ordinances to the Acts regulate more specifically various
aspects of employment. In particular, health and safety at work are specifically
regulated. Supplementary legal provisions are found in the Act of 13 March
2003 on “Special Principles for Terminating Employment with Employees
Due to Reasons not Attributable to Employees” (hereinafter referred to as the
Act of 13 March 2003).
The Labour Code (LC) regulates the rights and duties of employees and
employers, as well as conditions of employment for workers in both the public
and the private sector. It covers all persons employed on the basis of “a contract
of employment, appointment, nomination, election, or a cooperative contract of
employment”. These different forms of employment are all defined in the Code,
along with the definitions of ‘employer’ and ‘employee’. The Act of 13 March
2003 applies in the event of the termination of an employment relationship due
to reasons not attributable to employees, provided that the employer employs at
least 20 employees. The Act, which replaced the previous Acton Termination of
Contracts of 28 December 1989, together with recent numerous amendments
to the Labour Code, are designed to address the very difficult current situation
in the labour market in Poland, most specifically the very high unemployment
rate. Special legal provisions connected with international financial crisis and
its consequences for the labour market were introduced in Act of 1 July 2009
on Appeasement of economic crisis effects for employees and entrepreneurs
(legally standing as of 22 August 2009).
In addition, the Constitution of 2 April 1997 is an important source of
law, since some of the fundamental precepts of labour protection are therein
enshrined. The Constitution is, therefore, the underlying force and legislative
basis of Polish labour law. The Constitution prohibits discrimination on the
26
Implementation and Enforcement of EU Labour Law in the Visegrad Countries
grounds of race, creed, religion, or gender. This non-discrimination principle,
which also applies to termination of employment, is reflected in the Labour
Code, which prohibits discrimination on the grounds of age, disability, nationality, political views, and trade union membership, and additionally provides
for equality in employment for both men and women.
Basically, work is performed on the basis of the employment contract. The
provisions of the contract may not be less advantageous to the employee than
the provisions of the binding law and employer’s internal labour regulations,
in particular employment regulations, compensation regulations and collective
labour agreements. The employer and trade unions may enter into the collective labour agreement.
The Polish law regulates the organisation and rights of the trade unions,
which may be established only upon the employees’ motion. The rights of the
trade unions are mainly of consultative nature. Consent of the employees’ representatives may be required in a limited number of situations for implementing
solutions differing from the standard labour laws or when determining rules
of remuneration.
The Polish law regulates European Works Councils and Employee Councils. If the criteria provided for by law are fulfilled, the employer is obliged
to take an initiative for their creation. Both bodies are of consultative nature
only. Further consultations with the employees’ representatives are required for
matters relating to health and safety at work, working time and social matters.
There are authorities appointed to ensure that labour laws and working
conditions regulations are complied with – State Labour Inspectorate and State
Sanitary Inspectorate.
1.4
Slovakia
The Slovak Republic (or, in short form, Slovakia, long form Slovenská
republika) is a landlocked state in Central Europe. It has a population of over
five million and an area of about 49,000 square kilometres. Slovakia is bordered
by the Czech Republic and Austria to the west, Poland to the north, Ukraine
to the east and Hungary to the south. The largest city is the capital, Bratislava,
and the second largest is Košice. Slovakia is a member state of the European
Union, NATO, United Nations, OECD and WTO among others. The official
language is Slovak, a member of the Slavic language family.
As for administrative division, Slovakia is subdivided into 8 krajov (singular – kraj, usually translated as “region”), each of which is named after its
principal city. Regions have enjoyed a certain degree of autonomy since 2002.
1 Visegrád countries and their legal system
27
Their self-governing bodies are referred to as Self-governing (or autonomous)
Regions (sg. samosprávny kraj, pl. samosprávne kraje) or Upper-Tier Territorial Units (sg. vyšší územný celok, pl. vyššie územné celky, abbr. VÚC).
The “kraje” are subdivided into many okresy (sg. okres, usually translated as
districts). Slovakia currently has 79 districts. In terms of economics and unemployment rate, the western regions are richer than eastern regions; however
the relative difference is no bigger than in most EU countries having regional
differences.
1.4.1 Legal System
The Slovak legal system is a civil law system. Historically, it had been influenced by the Austrian and the German legal orders and can thus be grouped
within the Germanic continental legal culture. During the Communist period
ranging from 1948 until 1989, it has been influenced by Socialist legal thinking. As of the 1990s, it has been also largely shaped by the reception and
implementation of EU law.
As a civil law jurisdiction, Slovak law recognizes only written law as a formal source of law. Based on their legal force, those formal written sources of
law are assorted in a pyramidal-type structure. The lower levels of the pyramid
have to be compatible with the higher.
The structure is as follows:
constitution and constitutional acts,
international treaties, to which the Parliament has expressed its assent and
which were ratified and promulgated in a manner laid down by a law,
acts adopted by the Parliament,
derived legislation (Government regulations, generally binding legal regulations of ministries and other central state administration bodies, acts of
self-governmental units, generally binding legal regulations of local bodies
of state administration).
The pyramid of legal sources was partially reshaped by Slovakia’s accession
to the European Union. The Constitution expressly recognizes the precedence
of European Union law over acts adopted by the Parliament. Thus, if a national
statute is in contradiction with EU legislation, the latter prevails.
Traditionally, case law is not regarded as a binding source of law by continental legal theory and in this respect, Slovakia is no exception. Nevertheless,
some scholars do attribute to case law of higher courts the term “quasi-precedents”. Legal practitioners and judges of lower courts often refer to case law
28
Implementation and Enforcement of EU Labour Law in the Visegrad Countries
when solving legal problems. Also higher courts often cite previous cases in
their decisions. This applies particularly to important decisions of the Constitutional Court and the Supreme Court. There is no generally accepted system
of citation to case law and most practitioners and scholars cite according to
the court docket number and the date of decision. Cases of lower courts are
generally not cited to. Neither legal doctrine is regarded as a formal source
of law in the Slovak legal system. Nevertheless, scholarly interpretations of
legal sources and, in particular, commentaries to most important acts play an
important role in legal practice and legal argumentation.
1.4.2 Labour regulation
Slovak employment law is codified in the Labour Code, Act No. 311/2001.
Other employment laws include, for example, Act No.125/2006 Coll. on Labour
Inspection, the Act on Illegal Work and Illegal Employment and on amendment
of certain Acts as amended by Act No. 125/2006 Coll., Act No. 5/2004 on Employment Services and on amendment of certain Acts (Employment Services
Act), Act No. 461/2003 on Social Insurance and Act No. 2/1991 on Collective
Bargaining. Labour Code is mandatory for all employers acting in the Slovak
Republic and stipulates the minimum rights and entitlements for employees.
Rights and obligations which result from labour law relationships may be negotiated differently from the Labour Code only if this is not expressly forbidden
by the Code or if a relevant provision does not implicitly forbid such a change.
The primary government agencies or other entities responsible for the enforcement of employment statutes and regulations include:
the National Labour Office,
the Ministry of Labour, Social Affairs and Family,
the Centre of Labour, Social Affairs and Family,
the National Labour Inspectorate and its local branches,
the courts.
Participation of employees in labour-law relations and its forms is regulated
by the Slovak Labour Code in Part Ten, Collective Labour Law Relations.
Employees shall participate in the decision making of the employer concerning
their economic and social interests, either directly or by means of a competent
trade union body, a works council or the works trustee; employees’ representatives shall cooperate closely.
1 Visegrád countries and their legal system
29
An employer shall be a legal person or natural person employing at least
one natural person in labour-law relation and, if so stipulated by a special regulation, also in similar labour relations. An employer shall act in labour-law
relations in his/her own name and shall have responsibility arising from these
relations. An organizational unit of an employer shall also be an employer, if
stipulated by special regulations or statutes under special regulation. If a participant to labour-law relation is an employer, his/her organisational unit cannot
simultaneously be a participant and vice versa. Capacity of a natural person
to rights and obligations pursuant to labour-law relations as an employer shall
arise at birth. A conceived child, if born alive, shall also possess such capacity.
Capacity of a natural person to acquire rights and take on obligations as an
employer pursuant to labour-law relations by their own legal actions shall arise
upon reaching majority; until such time, a legal representative shall act on the
person’s behalf.
An employee shall be a natural person who in labour-law relations and,
if stipulated by special regulation also in similar labour relations, performs
dependent work for the employer. Capacity of a natural person to have rights
and obligations in labour-law relations as an employee and capacity to acquire
such rights and take on such obligations by his/her own legal actions arises,
unless otherwise stipulated hereinafter, on the day the natural person reaches
15 years of age; however, an employer may not agree on date of taking up the
employment by a natural person prior to the day of completion of compulsory
fulltime schooling. An employee may conclude an agreement of material accountability at the earliest upon the day he/she reaches 18 years of age. Natural
persons aged less than 15 years or natural persons aged over 15 years who have
not yet completed compulsory schooling are forbidden to work.
Employees’ representatives shall be the competent trade union body, works
council or works trustee. An employees’ representative for occupational health
and safety specified by a special regulation shall also be an employees’ representative for occupational health and safety.
31
2
Antidiscrimination Law
(Equality of Treatment)
2.1
Introduction
Few principles received such an important and frequent backing in international legal instruments as the principle of equal treatment, also in the field
of employment. All international organisations took initiatives in this area: the
United Nations, the ILO especially, the Council of Europe and the EC. Since its
creation, the European Union (EU) has regarded the fight against discrimination
as one of its most pressing missions. Although discrimination, whether direct
or indirect, is considered a crime under European law, individuals throughout
Europe are prevented on a daily basis from living their social or professional
life to the full because of random criteria. For several years the emphasis was
placed on preventing discrimination on grounds of nationality or gender. Since
1999, the EU’s powers have expanded to include action against discrimination
on grounds of racial or ethnic origin, religion or belief, disability, age or sexual
orientation. In this area more than any other, civil society organisations act as
essential intermediaries between citizens and the European institutions.
The EC played an important role, first by adopting ex Article 141 in the EC
Treaty (present Article 151 of the Treaty on European Union and the Treaty on
the Functioning of the European Union), which contains the principle of equal
pay for equal work, and consequently by adopting several directives:
1975: relating to the application of equal pay for men and women,1
1976: relating to the implementation of the principle of equal treatment for
men and women as regards access to employment, vocational training and
promotion, and working conditions,2
1978: concerning the progressive implementation of the principle of equal
treatment for men and women in matters of social security,3
1
10 February 1975, No. 75/117. O.J. L 45/19, 19 February 1975.
2
9 February 1976. No. 76/207, O.J. L 39/40, 14 February 1976, amended by Directive 2002/73/EC
of 23 September 2002. O.J., 5 October 2002. L 269.
3
19 December 1978. No. 79/7. O.J. L 6/24. 10 February 1979.
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
1986: on the implementation of the principle of equal treatment for men
and women in occupational social security schemes,4
1997: on the burden of proof in cases of discrimination based on sex,5
2000: establishing a general framework for equal treatment in employment
and occupation,6
2000: implementing the principle of equal treatment between persons irrespective of racial or ethnic origin,7
2006: on the implementation of the principle of equal opportunities and equal
treatment of men and women in matters of employment and occupation.8
Equal treatment was of course also retained as a fundamental social right in
the Community Charter of the Fundamental Social Rights of Workers:
Whereas, in order to ensure equal treatment, it is important to combat every
form of discrimination, including discrimination on grounds of sex, colour,
race, opinions and beliefs, and whereas, in a spirit of solidarity, it is important
to combat social exclusion.
Therefore principle 16 of the Charter was adopted, which reads as follows:
Equal treatment for men and women must be assured. Equal opportunities
for men and women must be developed. To this end, action should be intensified to ensure the implementation to the principle of equality between men and
women as regards in particular access to employment, remuneration, working conditions, social protection, education, vocational training and career
development. Measures should also be developed enabling men and women to
reconcile their occupational and family obligations.
The Treaty of Amsterdam (1997) and ex Article 141 strengthens the aims
and objectives of the Community in a considerable way. First of all, equality of
men and women becomes one of the main tasks of the Community. A second
paragraph was added to ex Article 3 TEC according to which in all the activities
referred to in this Article, the Community shall aim to eliminate inequalities,
and to promote equality between men and women’.
Especially Article 13 TEC (present Article 19 of the Treaty on European
Union and the Treaty on the Functioning of the European Union) had the
greatest importance, given the wide range of grounds in combating discrimi4
24 July 1986. No. 86/378. O.J. L 45/40. 12 August 1986, amended by Directive 96/97 of 2 December 1996.
5
15 December 1997, No. 97/80, O.J. L 14/6. 20 January 1998.
6
Council Directive 2000/78EC of 27 November 2000. O.J. L 303, 2 December 2000.
7
Council Directive 2000/43EC of 29 June 2000. O.J. L 180. 19 July 2000.
8
5 July 2006. No. 2006/54/EC. O.J.. 26 July 2006.
2 Antidiscrimination Law (Equality of Treatment)
33
nation. It has allowed the EU indeed to take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability,
age or sexual orientation’. On the basis of ex Article 13 have been adopted two
important directives, namely one by Council Directive 2000/43EC of 29 June
2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and Council Directive 2000/78EC of 27 November 2000 establishing a general framework for equal treatment in employment
and occupation. We will examine both directives in depth.
Ex Article 141 has brought number of important innovations. For the first
time ‘work of equal value’ has been mentioned explicitly. Paragraph 3 of this
Article provides for a new basis to adopt measures to ensure the application
of the principle of equal opportunities and equal treatment of men and women
in matters of employment and occupation. Moreover, the role of the EP is enhanced: decisions can be made with qualified majority in accordance with the
co-decision procedure.
Also the competence of the Community has been formulated in a broad
manner, namely to implement, without any restriction, the principle of equal
opportunity and treatment of men and women in matters of employment and
occupation, including the principle of equal pay for equal work or work of equal
value. Also positive discrimination gets a push in the back.
2.1.1 A general framework for equal treatment in employment
and occupation
Combating discrimination is a major challenge for the European Union. The
Union is founded on the principles of liberty, democracy, respect for human
rights and fundamental freedoms, as well as the rule of law. Hence the EU must
take all measures necessary to combat discrimination of all kinds, notably as
regards employment and the labour market.
Employment and occupation are crucial to ensuring equal opportunities
for all and in large measure contribute to the full participation of citizens in
economic, social and culture life. However, many cases of discrimination have
been identified in the field of employment and the labour market.
Ex Article 13 of the EC Treaty, introduced by the Treaty of Amsterdam,
specifically empowers the Community to combat discrimination based on sex,
race or ethnic origin, religion or belief, disability, age or sexual orientation.
The Member States ban discrimination in the field of employment and occupation. However, the scope of this prohibition, its content and enforceability
vary from country to country. Hence this Directive is designed to lay down
a general minimum framework in this area.
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation put in place a general
framework to ensure equal treatment of individuals in the European Union,
regardless of their religion or belief, disability, age or sexual orientation, as
regards access to employment or occupation and membership of certain organisations.
The Directive mainly concerns the following areas:
conditions of access to employed or self-employed activities, including
promotion,
vocational training,
employment and working conditions (including pay and dismissals),
membership of and involvement in an organisation of employers or workers
or any other organisation whose members carry on a particular profession.
The discriminatory grounds coincide with those laid down in Article 13
TEC, with the exception of the ground of sex. With regard to sexual orientation a clear dividing line should be drawn between sexual orientation, which
is covered by this directive, and sexual behaviour, which is not. Furthermore,
it should be underlined that this directive does not affect marital status and
therefore does not impinge upon entitlements to benefits for married couples.
The personal as well as the material scope of the directive are wide: it applies to all persons, as regards both the public and private sectors, including
public bodies, in relation to:
a) conditions for access to employment, to self-employment or to occupation,
including selection criteria and recruitment conditions, whatever the branch
of activity and at all levels of the professional hierarchy, including promotion,
b) access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work
experience,
c) employment and working conditions, including dismissals and pay,
d) membership of, and involvement in, an organisation of workers or employers, or any organisation whose members carry on a particular profession,
including the benefits provided for by such organisations.
The directive does not cover differences of treatment based on nationality
and is without prejudice to provisions and conditions relating to the entry into
and residence of third-country nationals and stateless persons in the territory
2 Antidiscrimination Law (Equality of Treatment)
35
of Member States, and to any treatment which arises from the legal status of
the third-country nationals and stateless persons concerned.
The directive does not apply to payments of any kind made by state schemes
or similar, including state social security or social protection schemes.
Member States may provide that this directive, in so far as it relates to discrimination on the grounds of disability and age, shall not apply to the armed
forces.
For the purposes of the directive, the ‘principle of equal treatment’ also
covers direct as well as indirect discrimination on the grounds of religion or
belief, disability, age or sexual orientation as regards employment and occupation .
There is direct discrimination where one person is treated less favourably
than another is, has been or would be treated in a comparable situation.
There is indirect discrimination where an apparently neutral provision,
criterion or practice would put persons having a particular religion or belief,
a particular disability, a particular age, or a particular sexual orientation at
a particular disadvantage compared with other persons unless:
a) that provision, criterion or practice is objectively justified by a legitimate
aim and the means of achieving that aim are appropriate and necessary, or
b) as regards persons with a particular disability, the employer or any person
or organisation to whom this directive applies is obliged, under national
legislation, to take appropriate measures in order to eliminate disadvantages
entailed by such provision, criterion or practice.
Harassment is a form of discrimination when unwanted conduct takes place
with the purpose or effect of violating the dignity of a person and of creating
an intimidating, hostile, degrading, humiliating or offensive environment. In
this context, the concept of harassment may be defined in accordance with the
national laws and practice of the Member States.
An instruction to discriminate against persons on any of the indicated
grounds constitutes discrimination.
The directive is without prejudice to measures laid down by national law
which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection
of health and for the protection of the rights and freedoms of others.
Reasonable arrangements must be made to guarantee the principle of equal
treatment for disabled persons, limiting it to cases which do not involve unjustified difficulties.
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
In some cases are differences in treatment are authorised:
Genuine occupational qualifications – In certain cases differences in treatment may be justified by the nature of the post or the conditions in which
the job is performed.
Differences in treatment on grounds of age – Differences in treatment on
grounds of age are permissible when they are objectively and reasonably
justified by a legitimate labour market aim and are appropriate and necessary to the achievement of that aim (protection of young people and older
workers, requirements as to the extent of job experience, etc.).
Positive action – Member States have the right to maintain and adopt measures intended to prevent or compensate for existing inequalities (measures
to promote the integration of young people, the transition from work to
retirement, etc.).
The Directive contains a “non-regression” clause which concerns Member
States whose legislation provides for a higher level of protection than that afforded by the Directive.
Despite affirmation of the principle of equal treatment between men and women by Community law, enforcement of this principle has proved extremely difficult
in practice. For this reason the proposal includes a series of mechanisms to ensure
effective remedies in the event of discrimination. These mechanisms rely on:
improvement of legal protection by reinforcing access to justice or to conciliation procedures (both in the form of individual access and by empowering organisations to exercise this right on behalf of a victim,
shifting the burden of proof: once facts have been established from which
it may be presumed that there has been discrimination, the burden of proof
lies with the defendant, in compliance with Directive 97/80 and the case
law of the Court of Justice in the case of sex discrimination,
protection of victims of discrimination against reprisals, and notably dismissal,
dissemination of adequate information on the Directive's provisions (once
adopted) to vocational training and educational bodies and within the workplace.
The social partners have a crucial role to play in combating discrimination.
Hence Member States must take adequate measures to promote the social dialogue between the two sides of industry with a view to fostering the principle
of equal treatment, through the monitoring of workplace practices, codes of
conduct, exchange of experiences and good practices, etc.
2 Antidiscrimination Law (Equality of Treatment)
37
Discriminatory national provisions must be abolished or declared null and
void. Sanctions will be imposed by Member States in the event of infringement
of the principle of equal treatment.
The Member States must communicate to the Commission, within two
years of the entry into force of the Directive and then every five years, all the
information necessary for the Commission to draw up a report to the European
Parliament and the Council on its application.
The Directive includes an impact assessment form in respect of companies
and in particular SMEs.
The Directive does not take into account discrimination on gender grounds
as this principle is already part of Community legislation (in particular Council Directive 76/207/EEC of 9 February 1976 on the implementation of the
principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions and Council
Directive 86/613/EEC of 11 December 1986 on the application of the principle
of equal treatment between men and women engaged in an activity, including
agriculture, in a self-employed capacity, and on the protection of self-employed
women during pregnancy and motherhood.
2.1.2 Equal treatment between persons irrespective of racial
or ethnic origin
Council Directive 2000/43/EC of 29 June 2000 implements the principle
of equal treatment between persons irrespective of racial or ethnic origin. The
directive comprises four chapters: general provisions, remedies and enforcement, bodies for the promotion of equal treatment and final provisions.
The objective of Directive is to combat discrimination on the grounds of
racial or ethnic origin. Therefore this Directive lays down minimum requirements for implementing the principle of equal treatment between persons in
the European Union (EU). By discouraging discrimination, it should help to
increase participation in economic and social life and reduce social exclusion.
This Directive is supplemented by the provisions on equal treatment in employment and occupation. The Treaty of Lisbon (Article 19 of the Treaty on European Union and the Treaty on the Functioning of the European Union) provides
the EU with a legal basis to combat all forms of discrimination based on sex,
racial or ethnic origin, religion or belief, disability, age or sexual orientation.
This Directive is based on the principle of equal treatment between persons.
It forbids all direct or indirect discrimination based on race or ethnic origin, as
well as harassment and any behaviour which makes one person discriminate
against another person.
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
Direct discrimination occurs where one person is treated less favourably
than another is, has been or would be treated in a comparable situation on
grounds of racial or ethnic origin.
Indirect discrimination occurs where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular
disadvantage compared with other persons, unless that provision, criterion or
practice is objectively justified by a legitimate aim and the means of achieving
that aim are appropriate and necessary.
Harassment is discrimination when an unwanted conduct related to racial
or ethnic origin takes place with the purpose or effect of violating the dignity
of a person and of creating an intimidating, hostile, degrading, humiliating or
offensive environment. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member States.
An instruction to discriminate constitutes discrimination.
The Directive applies to all persons, as regards both the public and private
sectors, including public bodies, regarding:
access to employment and to unpaid activities, specifically during recruitment,
working conditions, including concerning hierarchical promotion, pay and
dismissals,
access to vocational training,
involvement in workers’ or employers’ organisations, and in any professional organisation,
access to social protection and to health care,
education,
social advantages, access to goods and services, particularly housing.
The directive does not cover difference of treatment based on nationality
and is without prejudice to provisions and conditions relating to the entry into
and residence of third-country nationals and stateless persons on the territory
of Member States, and to any treatment which arises from the legal status of
the third-country nationals and stateless persons concerned.
In the field of employment, derogation may be authorised where race or
ethnic origin constitutes a fundamental professional requirement. This derogation must be justifiable by the nature of the activity and the conditions under
which it is exercised. It must be legitimate and proportionate.
Lastly, the directive does not oppose positive action, namely national measures
aimed at preventing or compensating for disadvantages connected with race or
ethnic origin.
2 Antidiscrimination Law (Equality of Treatment)
39
Anyone who believes they are a victim of a failure to comply with the
principle of equal treatment must be able to access legal and/or administrative
procedures, even if the relationship in question has ended. Associations or
other interested legal persons may also undertake judicial proceedings either
on behalf of or in support of the complainant.
The burden of proof falls on the party accused, which must prove that the
principle of equal treatment has not been infringed. The complainant must be
protected against any adverse treatment or adverse consequence as a reaction
to the proceedings.
The social partners ensure the promotion of equal treatment, specifically
by monitoring practices in the workplace, producing codes of conducts and
concluding collective agreements. More generally, the Directive encourages
the conclusion of agreements establishing non-discrimination rules in the fields
which fall within the scope of collective bargaining.
Civil dialogue with the civil society organisations concerned is also encouraged.
Each Member State must establish at least one body dedicated to combating
discrimination, in particular responsible for helping victims and conducting
independent studies.
2.1.3 Equal pay for men and women
Contrary to Articles 151 and 153 of the Treaty on European Union and the
Treaty on the Functioning of the European Union, which are limited to fixing
in social matters the general objectives for an approximation of the laws and
cooperation between Member States, Article 157 of the Treaty on European
Union and the Treaty on the Functioning of the European Union creates an
obligation for the Member States to realise equal pay for men and women for
work of equal value. Article 157, has a double objective:
a social objective: to lay down the principle of equal treatment, which was
already embodied in Convention No. 100 of the ILO, into Community law,
an economic objective: for in creating an obstacle to any attempt at “social
dumping” by means of the use of female labour less well paid than male
labour, it helped to achieve one of the fundamental objectives of the common market, the establishment of a system of ensuring that competition is
not distorted.
Article 157 is part of the social objectives of the Community aimed at social
progress, as laid down in the preamble preceding the Treaty. The Court has
repeatedly stated that the respect for fundamental personal human rights is one
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
of the general principles of Community law, the observance of which it has
a duty to ensure. There can be no doubt that the elimination of discrimination
based on sex forms part of those fundamental rights. It is part of the foundation
of the Community. In particular, since Article 157 appears in the context of the
harmonisation of working conditions while improvement is being maintained,
the objection that the terms of this article may be observed in no other way than
by raising the lowest salaries must be set aside. It is clear that the instruments,
namely, Article 157 and the other directives, form one body of rules that are
complementary to each other and fortify each other.
Article 157 and the directives have a general scope of application, which
follows from the nature of the principle of equal treatment, and thus apply
to the private sector as well as to the public sector, and to the self-employed.
Article 157 contains the notion ‘equal pay’. For the purpose of this article
“pay” means the ordinary basic or minimum wage or salary and any other
consideration, whether in cash or in kind, which the worker receives, directly
or indirectly, in respect of his employment for his employer.
Equal pay without discrimination based on sex means:
a) that pay for the same work at piece rates shall be calculated on the basis of
the same unit of measurement,
b) that pay for work at time rates shall be the same for the same job.
An end-of-year bonus, which the employer pays to the worker under a law
or a collective agreement, is received in respect of the worker’s employment,
so that it constitutes pay within the meaning of Article 157.
In that regard, it should be noted that Article 157 lays down the principle
that men and women should receive equal pay for equal work, but it does not
concern cases in which a group of workers is treated less favourably than another group of workers of the same sex.
Article 157 does not preclude the making of a lump-sum payment exclusively to female workers who take maternity leave where that payment is designed to offset the occupational disadvantages which arise for those workers
as a result of their being away from work.’
Article 157 is directly applicable and may thus give rise to individual rights
which the courts must protect. Indeed, the article is clear and sufficiently precise in its content, does not contain any reservation and is complete in itself in
the sense that its application by national courts does not require the adoption
of any subsequent measure of implementation either by the States or by the
Community.
2 Antidiscrimination Law (Equality of Treatment)
41
2.1.4 Equal opportunities and equal treatment of men and women
in the labour market
Equality between men and women is a fundamental principle of European
law which applies to all aspects of life in society, including to the world of
work.
The objective of Directive 2006/54/EC of the European Parliament and of
the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment
and occupation is to simplify, modernise and improve Community legislation
in the area of equal treatment for men and women in employment.
This Directive prohibits direct or indirect discrimination between men and
women concerning the conditions of:
recruitment, access to employment and self-employment,
dismissals,
vocational training and promotion,
membership of workers’ or employers’ organisations.
For the purposes of this Directive, the following definitions shall apply:
a) ‘direct discrimination’: where one person is treated less favourably on
grounds of sex than another is, has been or would be treated in a comparable situation,
b) ‘indirect discrimination’: where an apparently neutral provision, criterion or
practice would put persons of one sex at a particular disadvantage compared
with persons of the other sex. unless that provision, criterion or practice is
objectively justified by a legitimate aim, and the means of achieving that
aim are appropriate and necessary,
c) ‘harassment’: where unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and
of creating an intimidating, hostile, degrading, humiliating or offensive
environment,
d) ‘sexual harassment’: where any form of unwanted verbal, non-verbal or
physical conduct of a sexual nature occurs, with the purpose or effect of
violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment,
e) ‘pay’: the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly
or indirectly, in respect of his/her employment from his/her employer.
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
For the purposes of the Directive, discrimination includes:
a) harassment and sexual harassment, as well as any less favourable treatment
based on a person’s rejection of or submission to such conduct,
b) instruction to discriminate against persons on grounds of sex,
c) any less favourable treatment of a woman related to pregnancy or maternity
leave.
In addition, the Treaty on the Functioning of the EU (Article 157) prohibits
discrimination on grounds of sex on matters of pay for the same work or work
of equal value. This principle also applies to job classification systems used
for determining pay.
However, different treatment for men and women may be justified by reason
of the nature of the particular occupational activity, if the measures taken are
legitimate and proportionate.
Member States shall encourage employers and vocational trainers to act
against discrimination on grounds of sex, and particularly against harassment
(where unwanted conduct related to the sex of a person occurs with the purpose
or effect of violating the dignity of a person, and of creating an intimidating,
hostile, degrading, humiliating or offensive environment) and sexual harassment (where any form of unwanted verbal, non-verbal or physical conduct
of a sexual nature occurs, with the purpose or effect of violating the dignity
of a person, in particular when creating an intimidating, hostile, degrading,
humiliating or offensive environment).
Women and men are treated equally under occupational social security
schemes, particularly concerning:
the scope and conditions of access to the schemes,
the contributions,
the calculation of benefits, including supplementary benefits, and the conditions governing the duration and retention of entitlement.
This principle applies to the whole working population, including:
self-employed workers, however for this category Member States may provide for different treatment, in particular concerning the age of retirement,
workers whose activity is interrupted by illness, maternity, accident or involuntary unemployment,
persons seeking employment, retired and disabled workers, and those claiming under them.
2 Antidiscrimination Law (Equality of Treatment)
43
At the end of maternal, paternal or adoption leave, employees have the
right to:
return to their jobs or to equivalent posts on conditions which are no less
favourable to them,
benefit from any improvement in working conditions to which they would
have been entitled during their absence.
Member States must put in place remedies for employees who have been
victims of discrimination, such as conciliation and judicial procedures. In addition, they shall take the necessary measures to protect employees and their
representatives against adverse treatment as a reaction to a complaint within the
undertaking or to any legal proceedings. Lastly, they shall establish penalties
and reparation or compensation possibilities in relation to the damage sustained.
In the case of legal proceedings, the burden of proof is on the party accused
of discrimination that must prove that there has been no breach of the principle
of equal treatment.
Member States appoint bodies whose role it is to promote, analyse and
monitor equal treatment, to ensure that the legislation is followed and also to
provide support to victims of discrimination.
In addition, enterprises must promote the principle of gender equality and
strengthen the role of social partners and non-governmental organisations.
2.2
Antidiscrimination Law in the Czech Republic
2.2.1 Introduction
It was the act No 1/1991 Coll., regulating the issue of employment, which,
in its preamble, set the right of all citizens to an employment regardless of the
race, colour, sex, language, religion, political or other views, party membership
or political movements affiliation, nationality, ethnic origin, property, physical
condition or age, thus creating so called anti-discriminative clause. It was the
first significant law covering the issues of equality and prohibition of discrimination enacted after the Velvet Revolution.
The principle of equality and prohibition of discrimination had been missing from the Labour Code (Act N. 65/1965 Coll.) until the year 2000 and thus
the legislator referred to the applicability of the Charter, the provision of the
article 3, clause 1. The efforts to regulate this area of law in a greater detail can
be attributed to the preparations made in connection with the Czech Republic
EU accession and the resulting obligation to harmonize the Czech legal order
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
with the laws of the EU and the subsequent compatibility with the Community
law. This was first demonstrated in the Labour Code amendment No 155/2000
Coll. through the inclusion of 28 directives of the European Council of the
European Community (currently European Union) including the directives
covering the issues of discrimination. Two directives covering the issues of
discrimination and its prohibition, which are also reflected in the harmonization amendment to the Labour Code mentioned above, can be considered as
the most relevant. These are namely the European Council directive No 76/207
EEC on the equal treatment of both sexes as far as the access to employment,
professional training, job advancement and working conditions are concerned
and secondly it was the European Council directive No 75/117 EEC on the
applying of the principle of equal remuneration of both sexes.
2.2.1.1 New Labour Code
The new Labour Code the Act No 262/2006 Coll. effective from January 1st,
2007 strengthened the inevitable trend of securing the equal treatment in the employment relations. However, while the new Labour Code was being discussed
the anti discrimination law was also being discussed parallelly. This is also the
reason why the new Labour Code specifies the principles of equal treatment
and prohibition of discrimination more clearly in comparison with the older
Code, as it clearly refers to the anti discrimination law. The anti discrimination
Act No 198/2009 Coll. was, however, adopted in 2009, coming into effect on
September 1, 2009. Thus the anti discrimination legislative was missing from
the Czech legal order from January 1, 2007 until the September 1, 2009.
The current version of the Labour Code, N. 365/2011 Coll. (effective from
January 1, 2012), secures “equal treatment of both sexes and prohibition of
discrimination of men and women” as well as “reasonable remuneration for
the work done” as regulated in the § 1a) clause e) and c) thus establishing
these values as the fundamental principles of the employment relations. Equal
protection and prohibition of discrimination is then covered in the chapter IV.,
§ 16 and 17. The employers are thus obliged to secure “equal treatment of all
the employees as far as their working conditions are concerned, including the
remuneration for the work done and providing other monetary performance
and the performance of monetary value, the professional training and the opportunity to achieve functional or other job advancement.”
The provision § 16 clause 2 prohibits any kind of discrimination in the employment relations and refers to the anti discrimination act as far as the precise
definition of the direct and indirect discrimination is concerned, including harassment, sexual harassment, discrimination command, discrimination solicitation
2 Antidiscrimination Law (Equality of Treatment)
45
and the definition of when it is admissible to treat the employees differently.
Thus this provision does not cover the issue of possible reasons for discrimination in any way and the reasons are not defined in any way. In the third clause of
the same paragraph it is only defined what cannot be regarded as discrimination.9
The provision § 17again refers to anti discrimination act as far as the means of
protection against discrimination are concerned in particular.
The equal remuneration is covered by the § 110 clause 1: “All employees
are entitled to be paid the equal wages, salary or remuneration by agreement
for the equal amount of work done or for the work of the same value.” This
issue is covered in the § 110 regulating not only the equal position of both
sexes, but also setting forth other general reasons for equal position in employment relations.10 The same work or the work of the same value is then defined
as the work of the “same or comparable complexity, requiring the same or
comparable amount of responsibility and strenuousness, done in the same or
comparable working conditions, with the same or comparable efficiency and
with the same or comparable results.”
As far as the securing of the equality among the employees is concerned as
well as preventing discrimination, the employers are under the § 279 obliged to
inform the employees about the steps and measures introduced in connection
with this issue. When talking about the enforcement of the individuals’ rights
resulting from the prohibition of discrimination it is also necessary to focus on
the § 346b, which prohibits any kind of sanctioning or disadvantaging of the
employees who have tried to seek justice and protection of their rights resulting
from the employment relations.
2.2.1.2 The anti discrimination act (the Act N. 198/2009 Coll. on equal
treatment and legal means of protection against discrimination
amending some other laws)
In the explanatory report of 200411 it was said that the Czech legal regulation securing the equal treatment and protection against discrimination in such
9
“Different treatment of employees is not regarded as discrimination if this is based on need, i.e.
if it is an essential requirement necessary for the performance of the work; the purpose of this
exception must be justified and the requirement must be reasonable. Certain measures, the aim
of which is to prevent or balance some drawbacks resulting from a disadvantageous position
of some employees (as defined in the anti discrimination act), is not regarded as discrimination
either.”
10
VYSOKAJOVÁ, Margerita, KAHLE, Bohuslav, DOLEŽÍLEK, Ji í. Zákoník práce: komentá .
2. edition. Praha: ASPI, 2008, p. 199 (§ 110 ZP).
11
Explanatory Report on the anti discrimination act proposal, parliamentary print p. 866.
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
measure as required by the EU law (especially required by the EU secondary
law) was not sufficient. The EU law requires that legal regulations of the member states include the definition of the prohibition of discrimination (article 3
of LZPS was labelled as not sufficient for the protection of potential victims
of discrimination, being criticized as too general), as well as the definitions of
specific concepts in this sphere and the possible legal protection against discrimination (under what circumstances it is possible to appeal). None of these
issues were covered by the Czech legal regulation. It was essential that these
requirements should be met, otherwise there would have been hard sanctions
imposed if the EU directive 2000/78 covering the issues of equal treatment in
employment relations had not been followed.
However, the way to the adoption of this law was rather complicated. The
first attempt to adopt this legislation failed as the Chamber of Deputies vetoed
the bill (on January 26, 2006), and the same happened during the second attempt on May 23 of the same year when the bill did not get the required simple
majority of votes of the Deputies. In 2008 the bill was approved by both chambers of Parliament, however, this time the President vetoed the bill, claiming it
was “useless, counter-productive, and not of a high quality”12. The President
did not agree with the nature of this act which was supposed to take patronage over this area of law, he also criticized the shifting of the burden of proof
and challenged the necessity of such law, claiming this area of law had been
covered in the Charter of fundamental rights and freedoms.13 Thus the bill was
approved and the act has been effective since September 1, 2009.14 In this way
the Czech Republic averted the danger of possible sanctions imposed in case
the EU directives were not transposed into the Czech legal order.
2.2.1.3 The applicability of the current version of the law
Bearing in mind that the applicability of the anti discrimination law in the
form of a general anti discrimination clause is set to cover a wide range of issues in the area of social policy and social welfare, the access to health services,
education, merchandise and services – based on the need to implement the
12
BARTOSZ, Jakub. Klaus vetoval antidiskriminační zákon, který žádá EU. Je podle něj zbytečný
[online]. Idnes. cz, May 16, 2008 [quoted 15 October, 2011]. Available on <http://zpravy.idnes.
cz/klaus-vetoval-antidiskriminacni-zakon-ktery-zada-eu-je-podle-nej-zbytecny-15s-/domaci.
aspx?c=A080516_112215_domaci_jba>.
13
KLAUS, Václav. Otev ený dopis [Online]. Server Klaus.cz, [cit. 18. srpna 2012]. Available
from: <http://www.klaus.cz/clanky/418>.
14
JOUZA, Ladislav. Nový antidiskriminační zákon. Bulletin advokacie, 2009, number. 11,
p. 33–35.
2 Antidiscrimination Law (Equality of Treatment)
47
Community Law – I will only touch upon the issues connected with the provisions related to employment relations. This law covers the issues of the right to
an employment and the access to an employment, access to a job, business and
other self-employment activities, employment, service employment, and other
dependant activities including remuneration, membership and the activities of
trade unions, boards of employees or employers’ organizations and professional
chambers, including the advantages provided for their members.
As a matter of fact the law implements all the relevant EU directives.15 In
this respect the anti discrimination act stays within the boundaries of what is
required by the EU. The reasons for discrimination prohibited by the anti discrimination act such as e.g. the race, ethnicity, nationality, sex, sexual orientation, age, disability, creed, religious belief, world view in fact follow the EU
directives, except for nationality, which is not covered by the EU directives.
In this respect the Czech anti discrimination act goes beyond the EU direcRelevant EU directives:
The Council of Europe Directive 76/207/EHS of February 9, 1976 upon the introduction of
the principle of equal treatment of men and women as far as the access to jobs, professional
training and the promotion at work and working conditions are concerned.
European Parliament and the Council of Europe Directive 2002/73/ES of September 23,
2002 amending the directive of the Council of Europe 76/207/EHS upon the introduction of
the principle of equal treatment of men and women, as far as the access to jobs, professional
training, promotion at work and working conditions are concerned.
The Council of Europe Directive 2000/43/ES of June 29, 2000 introducing the principle of
equal treatment regardless of the race or ethnic origin of the job applicants.
The Council of Europe Directive 2000/78/ES of November 27, 2000 setting out a general
framework for equal treatment at work and in professions.
The Council of Europe Directive 75/117/EHS of February 10, 1975 upon the convergence
of the legal regulations of the member states dealing with the application of the principle
of equal remuneration for the work done for men and women.
The Council of Europe Directive 79/7/EHS of December 19, 1978 upon gradual introduction
of the principle of equal treatment of men and women in the area of social security.
The Council of Europe Directive 86/378/EHS of July 24, 1986 upon the introduction of the
principle of equal treatment of men and women in the systems of social security of workers.
The Council of Europe Directive 96/97/ES of December 20, 1996 amending the Directive
86/378/EHS upon the introduction of the principle of equal treatment of men and women
in the systems of social security of workers.
The Council of Europe Directive 86/613/EHS of December 11, 1986 upon the application of
the principle of equal treatment of men and women working as self-employed persons including
the area of agriculture, and upon the protection of maternity.
The Council of Europe Directive 2004/113/ES of December 13, 2004 introducing the principle
of equal treatment of men and women in the access to goods and services and the providing of
such goods and services.
The European Parliament and the Council of Europe Directive 2006/54/ES of July 5, 2006
upon the introduction of the principle of equal opportunities and equal treatment of men and
women in the area of employment and profession.
15
48
Implementation and Enforcement of EU Labour Law in the Visegrad Countries
tives. A part of the anti discrimination act also goes beyond the EU law as it
guarantees protection against discrimination based on age, disability, sexual
orientation, religious belief and creed beyond the area of employment and
professional relations. Thus the anti discrimination act can be regarded not
only as the implementation of the law of EU into the domestic law of the
Czech Republic but also as a specification of the Constitutional postulates in
accordance with the Czech Constitution and Constitutional Order including the
international treaties regulating the human rights and fundamental freedoms.
The anti discrimination act offers definitions of basic legal concepts, such as
e.g. the right for equal treatment (§ 2 clause 1), i.e. the right not to be discriminated on the grounds set out in this act. This act also defines discrimination as
direct and indirect in accordance with the EU directive. It defines discrimination
as wrong regardless of fault, however, a certain type of action is required, even
though it may be omission16 or failure to act – mere thought is not enough. Very
often it is rather difficult for the courts dealing with disputes over discrimination to find a certain comparative element. However, thanks to the phrase
“would be treated” used in the act it is possible to use so-called hypothetical17
comparative element (giving opportunities for legal deliberation).
Next, terms such as “harassment,” “sexual harassment,” are defined in § 4
clause 1 and 2. Exceptions to the prohibition of discrimination i.e. types of
different treatment allowed are defined in the § 6 and 7. These are preferably
the requirements for minimal age, practical training or minimal employment
period (typically professional qualification as well as experience serving as
pre-requisites for a specific job position – in these cases there is obviously
a necessity as well as legitimacy of these requirements). Situations in which
different treatment is necessary for the purposes of protection of certain groups
are also included. Reasons for different treatment of employees, which are
crucial for the nature of the work or activity, and which are at the same time
reasonable, are not considered to be discriminatory (as far as the employment
relations are concerned) under the § 6 clause 3.
§ 7 defines so-called affirmative actions as “measures, the aims of which
are to prevent or balance the drawbacks resulting from affiliation of a person to
a group of individuals defined and covered in § 2 clause 3 and thus secure equal
treatment and opportunities for such a person,” however, in matters of access
to a job or occupation this cannot lead to preferential treatment of a person
the qualities of which are not higher than those of other persons interviewed.
16
BOUČKOVÁ, HAVELKOVÁ a kol. Antidiskriminační zákon…, p. 133.
17
Ibid., p. 135.
2 Antidiscrimination Law (Equality of Treatment)
49
A person of a lower qualification must not be treated preferentially only based
on affiliation to a group at the expense of a person of a higher qualification,
who does not show any affiliation to a “disadvantaged” group.
Anti discrimination act regulates the status of a legal person based on the
protection of victims of discrimination whose activity is explicitly given by the
law. These organizations activity should then be preferably of a advisory and
helping nature. These organizations can also turn to administrative authorities
when it comes to motion to a review or motion to commence proceedings.
These will be especially inspectorates and employment offices (see below)
which can also represent the victims of discrimination in court proceedings.
However, the Ministry of Labour and Social Affairs currently18does not have
such an organization at its disposal and thus these would be private entities.
Thus setting up a specialized institution as a motion de lege ferenda (or
a structure within a specific ministry) is worth considering.
Thus, in conclusion, it can be said that the anti discrimination act and its
adoption caused a significant change when securing the principles of equality
across different spheres not only specifying the general prohibition of discrimination, but also regulating the key concepts in this area.
2.2.2 Legal means of protection against discrimination
2.2.2.1 Action under the anti discrimination act
In the § 10 clause 1 the anti discrimination act defines and guarantees the
right to seek discharge from discrimination or elimination of the consequences
of such discrimination. It also guarantees the right to seek reasonable satisfaction (which is rather of a moral value, e.g. public apology). If this is not
sufficient, the law guarantees a right to a remedy in the form of a monetary
compensation. However, in such cases it must be proved that the plaintiff’s
good reputation, dignity or good social position have been damaged significantly. The monetary value of this compensation is left up to the discretion of
the court. When making such a decision the court will take into account the
gravity of such a damage caused as well as the circumstances under which the
damaged occurred (§ 10 clause 3).19
In order to successfully file an action in accordance with this provision of
the anti discrimination act it is essential that the following elements such as
discriminatory conduct, causing harm as well as causal relationship between
18
According to the answer to the question asked by the public, up-dated February 8, 2012
available on http://www.mpsv.cz/cs/12113.
19
ŠTANGOVÁ, V ra. Rovné zacházení…, p. 176.
50
Implementation and Enforcement of EU Labour Law in the Visegrad Countries
this conduct (or failure to act) and the negative consequences are proved. Even
though the list of reasons for discrimination as given by the anti discrimination
act is enumerative, the practical experience has shown that it is still not enough
to cover all the possible situations where discrimination might occur in employment relations (such as e.g. mutual personal antipathies between the employer
and an employee, “inflexibility” of an employee and others).20 In such cases
the employee would have to seek justice in a civil proceeding (under the § 13
of Civil Code)21 without the possible application of the principle of shifting
of the burden of proof on the defendant, which is possible in cases tried under
the anti discrimination act. Thus, when talking about what the intended legal
regulation (the anti discrimination act) should be covering, it is vital that it
should also cover the prohibition of discrimination in cases mentioned above.
2.2.2.2 Judicial protection against discrimination – burden of proof
When filing an action the person who has been harmed becomes the plaintiff
and thus bears the burden of proof, which means they have to prove that they
have been harmed by the defendant’s conduct. However, in civil proceedings
dealing with discrimination cases, this obligation is removed from the plaintiff
under the § 133a letter a) of the Civil Procedure Code. This provision stipulates
that if it is obvious that the defendant, as shown in their testimony, directly
or indirectly discriminated the employee in the employment relations based
on the sex, racial or ethnic origin, religion, religious belief, disability, age or
sexual orientation, the defendant must prove the opposite. Thus, the employer
would have to provide evidence showing that they have followed the principles of equal treatment, or provide evidence showing a complete lack of any
discriminatory motives in their conduct.
The Constitutional Court ruled that the plaintiff must not only confirm,
but also provide sufficient evidence that an act of discrimination has occurred.
Thus, it is obvious that the position of the plaintiff is still rather disadvantageous. Seen in this light the employers still have rather strong position, even
if the employees were filing actions against employment discrimination as
a revenge against their employers.22 In spite of this the shifting of burden of
20
BR HA, Dominik. Praktické problémy antidiskriminačního zákona (z pohledu zaměstnance)
[online]. Mzdová praxe, January 11, 2010 [quoted. March 20, 2012]. Available on <http://www.
mzdovapraxe.cz/archiv/dokument/doc-d8379v11040-prakticke-problemy-antidiskriminacnihozakona-z-pohledu-zame/?search_query=$source=3%20$issue=3I95>.
21
§ 13 of the Act N. 40/1964 Coll., Civil Code, as amended.
22
The Constitutional Court decision of April 26, 2006, sp. zn. Pl. ÚS 37/04, published under the
number 419/2006 Coll.
2 Antidiscrimination Law (Equality of Treatment)
51
proof has been a subject of strong criticism23 and often brings about significant
difficulties in practice as it can be seen in the chapter dealing with the Czech
court’s decision making.
2.2.2.3 The relation between the § 10 of the anti discrimination act
and § 13 of the Civil Code
The competency of the anti discrimination act towards the Civil Code is
rather specific, thus, for various reasons listed in the § 2 clause 3 of the anti
discrimination act the plaintiff will proceed in accordance with § 10, without
filing an action based on the right to protection of personality under the § 13
of the Civil Code (such an action is possible in cases outside the employment
relations sphere, there is no choice provided). An act of choosing the wrong
action would lead to complications as to the court competency – it is the regional court, which is competent in case of action filed against the breach of
the personality protection, not the district court with a panel of judges hearing
and deciding employment relation cases.24
2.2.2.4 Other laws and their relation to § 10 of the anti discrimination act
Bearing in mind that the current law regulating the service of members of the
security corps25 and the position of the professional soldiers26 is specifically designed to regulate the working conditions of the members of these armed forces,
it can be said that these laws are special laws framed with respect to the specific
requirements for these employees (age or a disability being the typical reasons
for refusal to employ applicants who simply fail to fulfil such requirements).
2.2.3 Ombudsman
As a result of the adoption of the anti discrimination act, the competency to
execute the rights to equal treatment as well as protection against discrimination
has also been vested to the public defender of rights since the 1st December
2009 who can give methodological assistance to harmed individuals when fil23
VARVA OVSKÝ, Pavel. Diskriminace v pracovn právních vztazích a její dokazování. Právní
fórum, 2009, number 10, p. 451.
24
§ 9 clause 2 letter a) Act N. 99/1963 Coll. Civil Procedure Code.
25
Act N. 361/2003 Coll., upon the employment relationship of members of security corps, as
amended.
26
Act N. 221/1999 Coll., upon professional soldiers, as amended.
52
Implementation and Enforcement of EU Labour Law in the Visegrad Countries
ing court actions. However, the decision whether or not to use such assistance
is entirely up to the free decision of the person harmed, as these individuals
may seek the protection of their rights even without any previous consultation
with any authority.
Thus the Czech Republic did not set up a new institution to help the victims of discrimination; instead it reserved these powers for the institution of
Ombudsman.27 The following are the activities assisted by the Ombudsman in
cases when the victims seek their right to protection against discrimination:28
methodological assistance given to the victims of discrimination when filing
a motion to start a proceeding in discrimination cases (a legal analysis of
the specific case and suggestion of possible legal steps that should be taken
in the best interest of the victim), research carried out in the area connected
with discrimination including the publication of reports and issuing recommendations in connection with discrimination, exchanging the information
with European institutions dealing with equal treatment. The Ombudsman also
inquires whether the competent authorities themselves detect and punish acts
of discrimination in accordance with the law. It is essential that it should be
said that these powers described above are not only formal – on the contrary
they are frequently used and applied in practice.29
2.2.4 Labour Inspectorates
The Amended Employment Act N. 435/2004 Coll., effective from January
1, 2012 brought about changes in the area of equal treatment checking carried
out by administrative authorities. The responsibility for checking of discriminatory behaviour on the part of employers towards the job applicants was removed from employment offices and vested in the labour inspectorates.30 These
can impose sanctions in the form of a fine up to 1 million CZK. Such a dis27
This step was criticized, because the ombudsman is mainly competent to supervise over the
execution of public administration, while the issue of discrimination is mainly connected with
employers belonging to the category of Private Law. Apart from other things the agenda of this
office, which was at that time rather extensive, increased. This, in turn, can be rather counterproductive. Compare SLÁDEČEK, Vladimír. Zákon o Ve ejném ochránci práv. Komentá .
2. edition. Praha: C. H. Beck, 2011, p. 51–69 (§ 1 of the Act upon the Ombudsman).
28
§ 21b Of the Act N. 349/1999 Coll., upon the Ombudsman, as amended.
29
Cases of discrimination recently dealt with by the Ombudsman sorted by specific discriminatory
criteria available on http://www.ochrance.cz/diskriminace/pripady-ochrance/.
30
These inspectorates are divided into The State Office of Labor Inspection and 8 regional labor
inspectorates. Olomouc is covered by the Regional labor inspectorate for Moravian and Silesian
and Olomouc Region with the headquarters in Ostrava.
2 Antidiscrimination Law (Equality of Treatment)
53
criminatory behaviour is considered to be an offence (under § 139 clause 1 a),
§ 139 clause 3 a) and under § 140 clause 1 a), § 140 clause 4 a) and a legal
person as an entrepreneur can be sanctioned by the same fine for an administrative offence. Thus, it is one of the largest amounts to be paid as a fine, defined
in this legislation. The inspectorates also check whether or not the principle
of equal treatment in the employment relations has been violated. In practice
this checking is carried out either based on information provided by a person
who feels that they have been discriminated or through a annual program of
checking inspections, run by the State Office of Labour Inspections under the
Act on Labour Inspection N. 251/2005 Coll.
From the viewpoint of the institutional enforcing of the equality it is good
to say that there is an advisory authority run by the Government Council of
the Czech Republic dealing with the issues of equal opportunities for men and
women, the aim of which is to draft proposals and conceptions connected with
these issues.
2.2.5 The Act on Employment31
This act includes in the § 2 clause 1 letter j) “provision supporting and securing equal treatment between men and women, equal treatment of people
regardless of their racial and ethnic origin, the disabled and others having a disadvantaged position in the job market as far as the access to jobs is concerned,
re-qualification, preparation for a job position and for special re-qualification
courses as well as provision covering the issue of offering jobs to these individuals,” these points being regulated by the specific legislation enacted as
a part of the state policy of employment. Additionally the § 4 regulates equal
treatment and prohibition of discrimination32 when applying the right to employment while referring to the anti discrimination act33 itself where the reasons
for discrimination are listed.
Last but not least it should be said that offering jobs of discriminatory
nature is prohibited. This prohibition is regulated in the § 12. Moreover, the
employers – when looking for and selecting the potential employees – are
31
Act N. 435/2004 Coll., upon employment as amended.
32
The original full list of these reasons was removed by means of the amendment effective
from April 1, 2012. This list was more extensive than the list given by the anti discrimination
act. Thus the undesirable duplicity was removed. However, at the same time the number of
protected reasons was lowered. This, in turn, lowered the possibility of protection of rights of
some discriminated groups.
33
§ 4 clause 2 ibid.
54
Implementation and Enforcement of EU Labour Law in the Visegrad Countries
not allowed to ask for information about “nationality, racial or ethnic origin,
political views, membership in trade unions, religion, philosophical beliefs,
sexual orientation, unless it is in accordance with the anti discrimination act.
Next the employers are also not allowed to collect information in such cases
where it could be against good morale as well as personal data which is not
essential for the performance of the tasks and duties assigned by the potential
employer unless these are specifically listed in a special legal regulation. The
potential employer is obliged upon the request of the applicant to prove that
the personal data is really necessary for the employer. The criteria for the
selection of employees must guarantee equal opportunities for all individuals
applying for a job.” However, this represents one of the most serious problems
from the viewpoint of providing evidence of such a discriminatory behaviour as
the employers most frequently inquire about the personal status in cases when
the applicants are women including the questions about the potential planned
family life in the following years etc.
2.2.6 Czech Legal Regulation – Summary
Having dealt briefly with the legal regulation prohibiting the discrimination
and supporting the principles of equal treatment enacted in this legislation, it
can be said that the adoption of the anti discrimination act has been a significant
contribution in the area of employment relations. This legislation started off the
process of making other key changes soon to be made in the relevant legislation. The fact that the principle of equal treatment has been enshrined in the
new concept of Labour Code makes the current legal regulation better arranged
and structured. The position of the victims of discrimination is also better due
to the institute of shifting of burden of proof on the defendant as the victims
are in a much better position when seeking their rights. Without these changes
made recently, such discrimination cases would be practically unsolvable.
However, due to external political factors the current legal regulation is
not complete and the duplicity mostly with the action against the breach of the
protection of a person is causing great inconvenience as shown by the research
carried out by the Czech Helsinki Committee.34 This Committee was trying to
find out to what extent the anti discrimination act has been applied in practice
(to what extent it has been helpful to the victims of discrimination) after two
34
Antidiskriminační zákon po dvou a půl letech – je v praxi opravdu účinný? [online]. The
Czech Helsinki Committee – The advisory center intended for the victims of discrimination,
March 19, 2012 [quoted April 22, 2012]. Available on http://diskriminace.helcom.cz/2012/03/
antidiskriminacni-zakon-po-dvou-a-pul-letech-jeho-ucinnosti-%E2%80%93-je-v-praxi-opravdu-ucinny/.
2 Antidiscrimination Law (Equality of Treatment)
55
and a half years of its validity. For this purpose this Committee contacted courts
of general jurisdiction. Out of 86 courts only 1635 courts gave a statement saying that an action had been filed under the § 10 of the anti discrimination act.
In total it was 28 cases of discrimination as of March 2012 that were dealt with
by these courts. Thus discrimination cases have not been dealt with by the
courts so often, which can be put down to relatively poor knowledge of those
involved as the society is not familiar with the possible solutions of such cases
through courts. It can also be attributed to the fact that the victims often prefer
out-of-court settlement as they are afraid of large sums of money that have to
be paid in cases when the victims lose the case.
Next it should be said that the current legislation still lacks an effective
means through which the discriminatory behaviour could be proved.36 Last
but not least it is vital to point out the fact that in these cases an action against
the breach of protection of a person under the Civil Code is very often filed
instead of an action against discrimination.
Based on the practice of courts outlined above it can be said that there are
a few problems as far as the decision making process of the Czech courts is
concerned. It is the shifting of the burden of proof which seems to be causing
the greatest inconvenience as the courts have failed to apply and interpret this
institute correctly. This logically results in many cases being lost by the victims
of discrimination. Bearing in mind that it was the Constitutional Court which
has already released a statement covering this issue (see above) as well as the
Supreme Court it is still rather surprising that the courts still wrongly interpret
the shifting of the burden of proof. The fact that the judges have been rather
reluctant to decide in favour of the victims of discrimination can be seen as
inefficiency.
It is possible to speculate on the reasons for such judicial practice as the
decision making process in these cases shows signs of extreme difficulty as
far as providing sufficient evidence and discretion of the judge is concerned.
A factor which also plays an important role is the fact that many judges still
follow a stereotype way of decision making as far as the traditional concept of
the burden of proof is concerned. Moreover, there are still not enough cases in
the Czech Republic involving the principle of equal treatment in the employ35
However this number does not necessarily have to be accurate bearing in mind the possibility
that not all courts reacted to the request and sent their numbers of the actions filed. However,
in order to illustrate the point, it is possible to come to certain conclusions.
36
Jak je to s prokazováním diskriminace u soudu? [online]. The Czech Helsinki Committee –
The advisory center intended for the victims of discrimination November 8, 2011 [quoted
August 1, 2012]. Available on http://diskriminace.helcom.cz/2011/11/jak-je-to-s-dokazovanimdiskriminace-u-soudu/.
56
Implementation and Enforcement of EU Labour Law in the Visegrad Countries
ment relations and thus there is a lack of established judicial practice which
could serve as a model for the future decisions. This is in a sharp contrast with
the well established judicial practice of the Court of European Union, which
is not taken into account by the local judicial practice. One of the reasons can
also be the fact that the Czech courts are not flexible enough and the whole
process of decision making takes a long time as well as the victims’ concern
that the individual cases will not be settled within a reasonable period of time
and the outcome will be insecure which, of course, can have negative financial
consequences in case the victim loses the case.
The problematic issues connected with the competency of the courts towards the discrimination cases seem to be the last hitches. Very often there
are situations when the cases mentioned above are solved under the § 13 of
the Civil Code regulating the actions filed against the violation of protection
of a person according to which the court competent to solve such cases is the
regional court rather than the district court, as it is under the § 10 of the anti
discrimination act. However, the overall trend of increasing number of cases
proves that even the Czech Republic will reflect the growing number of discrimination cases and will reflect the execution of these cases in its judicial
practice.
2.3
Antidiscrimination Law in Hungary
The generally applicable rules on equal treatment are regulated by the Act
CXXV of 2003 on Equal Treatment and Promotion of Equal Opportunities
(abbreviated in Hungarian: Ebktv.), of which purpose is to cover all aspects
of equal treatment and equal opportunities, as lex generalis. In Ebktv. a special
chapter deals with issues of discrimination in employment.
The General Provisions of the Ebktv. contain regulations on the scope of
the Act, establishing two, partly overlapping and partly complementary definitions in this regard. On the one hand, the Ebktv. lists numerous groups of legal
entities which fall under the ‘institutional scope’ of the Act. The principle
of equal treatment shall be observed by a) the Hungarian State, b) local and
minority municipalities and the bodies thereof, c) authorities exercising state
powers, d) armed forces and law enforcement bodies, e) public foundations,
public corporations, trade unions and employers’ associations, f) public utility
companies, g) institutions of public education and higher education, h) persons
and institutions providing social care and child protection services, as well as
child welfare services, i) museums, libraries, community centres, j) voluntary
mutual insurance funds, private pension funds, k) health care institutions, l) po-
2 Antidiscrimination Law (Equality of Treatment)
57
litical parties, and m) budgetary agencies that do not belong to points a)–l).37
These legal entities are obliged to follow the rules on equal treatment in all
their legal relationships, and (theoretically) any discrimination in any legal
relationships of these legal entities fall under the scope of the Ebktv and is
prohibited by thereof.38
Rules on ‘relational scope’ of Ebktv. are also established,39 which could be
grouped into three subcategories: employment related scope, subsidies related
scope and civil law relationships related scope.
Furthermore, theoretically, the regulations on employment relationship (including equal treatment and equal pay) is applied to further relationships if the
specific Act governing that relationship orders so:
professional sportspersons’ employment contract or contract of services,40
public work,41
performing artists’ employment relationship,42
contract of apprenticeship,43
work contract of members’ of co-operatives,44 etc.
37
Article 4. a–m. Ebktv.
38
The legal entities listed in Art. 4 a–m. of Ebktv. are obliged to follow the rules of equal treatment
in the course of establishing their relationships, in their relationships, and in the course of
their procedures and measures. The dividing line between ‘relationships’, ‘procedures’ and
‘measures’ is not clear, nonetheless the Act is interpreted as if it covered all activities of the
above listed entities.
39
The relational scope is used here as explained by FREEDLAND, Mark and KOUNTOURIS,
Nikola: Employment Equality and Personal Work Relations – A Critique of Jivraj v Hashwani
Industrial Law Journal Vol. 41. 1. March 2012.
40
Art. 8. Act I. of 2004 on sport (a sportról szóló 2004. évi I. törvény).
41
Art. 2. of Act. CVI. of 2011 on public employment (a közfoglalkoztatásról szóló 2011. évi
CVI. törvény) Though public work programmes do not offend equal pay regulation according to
the caselaw of European Social Charter, they are fiercely critisised for several aspects including
the fact that the payment is far below the minimum subsistence figure, and t. hat national minimum wage is not applicable to public workers.
42
Fifth Chapter in Act XCIX. of 2008 on the support provided to organisations of perfoming art
and the employment relationship therein (az előadó-művészeti szervezetek támogatásáról és
sajátos foglalkoztatási szabályairól szóló 2008. évi XCIX. törvény).
43
Art. 26 in Act CLXXXVII. of 2011 on vocational training (a szakképzésről szóló 2011. évi
CLXXXVII. törvény).
44
Act X of 2006 on co-operatives (a szövetkezetekről szóló 2006. évi X. törvény), for regulation
in regard to equal treatment see Art. 56.
58
Implementation and Enforcement of EU Labour Law in the Visegrad Countries
A special aspect of equal treatment in employment, the issues of equal pay,
is regulated by the Labour Code (Munka Törvénykönyve, abbreviated in Hungarian: Mt.) in the Act I. of 2012, which orders to pay equal pay for equal work
or for work of equal value, and also defines “pay” and “work of equal value”.
Equal pay regulations are applied to all those relationships based on
which the person is obliged to do work under ‘other relationship for work’
(munkavégzésre irányuló egyéb jogviszony).45 In the Hungarian term ‘other
relationships for work’ usually covers those relationships based on which the
work is performed between independent parties. Such independent work is
performed through agency contract (megbízási szerződés), contract for professional services (vállalkozási szerződés) and membership in private companies
(gazdasági társaság) covered by Act No. IV of 1959 on Civil Code. The above
interpretation, however, cannot be fully applied to Ebktv. because under the
term ‘other relationships for work’ two relationships of dependent work have
also been listed in the Act: relationships of homeworkers (piece-rate workers)
and the work relationship of members of co-operatives.46
Anti-discrimination legislation existed before the accession; nonetheless,
the accession has led to a development of these regulations.
Interpretation problems is prevented by Article 2 of Ebktv., which orders,
that any provision pertaining to the principle of equal treatment set out in separate legal acts should be applied in harmony with the provisions of Ebktv.
The Ebktv. definitions of ‘direct’ and ‘indirect discrimination’ correctly
transpose Article of 2 (1) a. and b. of the Directive 2006/54/EC. The definitions
of harassment and instruction to discriminate are also properly transposed by
Ebktv, in the following manner: It is considered to be direct discrimination if
a person or a group is treated less favourably on grounds of her/his/its actual
or perceived protected characteristics than another person or group in a comparable situation.
Indirect discrimination is defined as actions that are not considered direct
discrimination and seemingly comply with the principle of equal treatment, but
put any persons or groups having a protected characteristics at a considerably
larger disadvantage than other persons or groups in a similar situation were
or would be.47 Harassment is conduct of a sexual or other nature violating human dignity related to the relevant person’s protected characteristics with the
45
Article 5. d.; 3. b. and 21. f of Ebktv.
46
For terminological clarity, homeworking and the work relationship of members of co-operatives
has been dealt with above in relation to employment relationship. See also above 15 and 21.
47
Article 9 of Ebktv.
2 Antidiscrimination Law (Equality of Treatment)
59
purpose or effect of creating an intimidating, hostile, degrading, humiliating
or offensive environment around the particular person.48 Unlawful segregation is conduct that separates individuals or groups of individuals from other
individuals or groups of individuals in a similar situation on the basis of their
protected characteristics, without any law expressly allowing it.49 Retaliation
is a conduct that causes the infringement, is aimed at the infringement, or
threatens with the infringement of the rights of persons making a complaint or
initiating procedures because of a violation of the principle of equal treatment,
or against a person assisting in such a procedure, in relation to these acts.50
The specific rules on equal pay are stipulated by Article 12 of the Act No. I.
of 2012 on the Labour Code. Pay means any remuneration provided directly
or indirectly in cash or in kind, based on the employment relationship.51 Work
of equal value is defined by Article 12 (3) of the Act No. I. of 2012 on the
Labour Code, according to which “the work of equal value should be determined on the basis of the nature, quality and quantity of the work performed,
the working conditions, the required level of training, physical or intellectual
efforts requested, experience, responsibilities and labour market conditions.”
This definition is almost identical with the regulation of the previous Labour
Code, only one new element; “labour market conditions” was introduced by
the new Labour Code. According to the intent of the drafters, the reference to
the labour market conditions enables nationwide employers, especially in the
retail sector, to pay lower wages in the Eastern part of the country which has
much higher unemployment rate compared to the Western part, where higher
wages are indicated by the much better local labour market conditions. In my
view, however, as no reference is made to the “geographical” or “regional”
labour market, this phrase of the Code could be exploited by the employers as
a reference point in other, clearly discriminatory context. An extreme example
in this regard could be if an employer refers to the “objective decision” of the
labour market when it pays lower wages for female employees. As this phrase
came into force on 1 July 2012, in this regard there is no case law yet.
Equal pay cases are usually revolving around the following questions:
Whether the work done is the same, or is at least comparable. The investigated facts varies greatly from case to case, the typically investigated factors
usually cover: tasks involved, skills required, level of education, level of
48
Article 10 (1) of Ebktv.
49
Article 10 (2) of Ebktv.
50
Article 10 (3) of Ebktv.
51
Article 12 (2) of new Labour Code.
60
Implementation and Enforcement of EU Labour Law in the Visegrad Countries
language knowledge, effort, experience, performance, responsibility, position in the organisation, work conditions, etc. (the notion of work).52
Whether the “differentiation is proportional, justified by the characteristics
or nature of the work and is based on all relevant and lawful terms and
conditions considered during the employment”; therefore the employer is
able to excuse itself from the accusation of violating equal pay legislation (Article 22 of Ebktv.). In this regard also the above listed factors are
investigated by the courts, or by the Equal Treatment Authority. (the issue
of exculpation).53
What falls into the category of “pay”. In a case, a female employee in manual job earned less than her male co-workers in the same position. The
employer defended the wage-difference with reference to different job tasks
and also to granting a housing-loan to the employee that, according to the
employer, was paid as partial compensation for the wage difference. The
employer referred to the interpretation of “pay” by the ECJ, claiming that
all benefits have to be considered “pay” in this context. A detailed analysis
of the scope of the job (its nature, quality and quantity, the required skill,
effort, experience and responsibility) has revealed, however, that the work
was comparable with the male co-workers, in spite of some difference in
the tasks. Furthermore, the Supreme Court established that the housing
loan may not be taken into consideration when comparing hourly wage,
because it was not proved that it was granted as a compensation for lower
wages. The case law of ECJ brings into the concept of pay only benefits that
provide effective material advantage (it referred to cases C-12/81. Gorland,
C-262/88. Barber), whereas a housing loan is not a free material gain, as
it has to be paid back.54 (the issue of pay) This decision of the Supreme
Court was one among those rather few cases in which the Hungarian courts
reflected the European case law.
Typical and atypical employment is equally covered by equal pay regulations. The new Labour Code repelled the regulation which taken out temporary
agency workers from the personal scope of equal pay regulations.55
52
E.g. Decision 106/2007 of the Equal Treatment Authority, September 2009.
53
E.g. Case LB-H-KJ-2011-635.
54
Kfv.IV.37.332/2007/5.
55
The rules of equal pay were applied to temporary agency workers in respect of basic wage,
overtime and shifts allowance, etc. only if she or he had worked for the same employer continuously for more than 183 days, and in respect of all aspects of remuneration in case of
a fixed-term contract following more than two years of service, and in case of an open-ended
2 Antidiscrimination Law (Equality of Treatment)
61
In 2008, the Advisory Board that operated alongside the Equal Treatment
Authority (until 2012) published an opinion on the guidelines on the application of equal pay for work of equal value which explained the relational scope
of equal pay regulations, the notions of direct and indirect discrimination and
that of pay, the interpretation of equal and unequal work, and the regulations
on shared burden of proof (Opinion No. 384/2/2008 of Advisory Board).
In the public sphere, theoretically there is much less room for pay discrimination because the basic wage of public employees56 and public servants57 are
calculated according to a pay-scale. Nonetheless, the possibility to depart from
pay scales is opened to a certain extent in both categories, which could lead to
systematic discrimination. The diversion options from the pay scale are huge in
case of civil servants: maximum plus 50% and minus maximum 20%.,58 much
less and in case of public employees.
In the private sector, wage discrimination, especially among higher educated man and women is rather considerable.59 Though the major rules on
equal pay for both equal work and work of equal value are properly framed,
nonetheless, there is very rare case law on this regard. A major hindrance could
be that women are not aware of inequalities of pays at the workplace, or are not
in the position to prove the existence of pay inequalities due to confidentiality
clauses inserted into employment contracts.60
According to Ebktv., the grounds of discrimination is much wider than
that of elaborated in EU law. The protected characteristics are listed in Art. 8
of Ebktv: a) gender, b) race, c) skin colour, d) nationality, e) national origin,
f) mother tongue, g) disability, h) state of health, i) religious or ideological
conviction, j) political or other opinion, k) family status, l) motherhood (pregnancy) or fatherhood, m) sexual orientation, n) gender identity, o) age, p) social
contract following more than one year of service. This discrimination has been rectified by the
new Mt., effective since 1 July 2012.
56
Act XXXIII. of 1992 on public employees (közalkalmazottak jogállásáról szóló 1992. évi
XXXIII. tv., Kjt.) covering all employees who are employed by public institutions financed
prevailingly from state or municipal budget.
57
Act CXCIX. of 2011 on civil servants (a közszolgálati tisztviselőkről szóló 2011. évi CXCIX. törvény, Kttv.).
58
Article 133 (2)–(9) of Act CXCIX of 2011.
59
In 2010 wages of women with higher education in relation to that of men was 71,4 per cent,
while in simple jobs it was 96,3 per cent. In 1995 both data were 80 per cent. Nők és Férfiak
Magyarországon 2009–2010 (Women and Men in Hungary 2009–2010). Central Statistical
Office, 2011. Budapest p. 167.
60
The practice in regard of confidentiality clauses are supported by the Article 8 (4) of Act I of
2012 on Labour Code.
62
Implementation and Enforcement of EU Labour Law in the Visegrad Countries
origin, q) financial status, r) part-time status or fixed-term of the employment
relationship or other relationship aimed at work, s) membership in an interest
representation organisation (e.g. trade union). According to point t), the list is
open-ended, since any other status, characteristic feature or attribute could be
considered a protected characteristic, according to which a person or a group
is directly discriminated compared to another person or group in a comparable
situation.
There are certain exceptions established by the Ebktv. Certain relationships
are not covered by the scope of the Act. According to Article 6 (1) the scope
of Ebktv. does not extend a) to family law relationships; b) to relationships
between relatives; c) to relationships of ecclesiastical entities directly connected
with the activities of the religious life of churches; and d) relationships between
the members of civil society organisations and of organisations without legal
entities, as relates to their membership.
The application of the proportionally test is also regulated by the Ebktv.
The principle of equal treatment is not violated by a conduct, measure, condition, omission, instruction or practice which restricts a fundamental right of the
entity suffering a disadvantage in order to enforce another fundamental right
in an unavoidable situation, assuming that such a limitation is suitable for the
designated purpose and is also proportional; b) which is found by objective
consideration to have a reasonable explanation directly related to a relevant relationship in cases not referred to in the above point a). The proportionally test
could not be applied in cases of direct discrimination and unlawful segregation,
based on the characteristics of race, skin colour, nationality and national origin.
The employment chapter specifies further cases of exemption. According
to Article 22 it is not considered to be a violation of the requirement of equal
treatment: a) if the discrimination is proportional, justified by the characteristics
or nature of the work and is based on all relevant and lawful terms and conditions considered during the employment, or b) if the discrimination is based on
religious or other ideological convictions, or national or ethnic origin, which
stem directly from the intellectual underpinnings that fundamentally shape the
organisation’s character, if the discrimination is justified on the basis of the
substance or nature of the given position, and if it is proportional and based
on genuine work requirements. Exceptions could not be applied in case of
any direct discrimination in relation to the characteristics of race, skin colour,
nationality and national origin; these shall always constitute the violatation of
the requirement of equal treatment.
In relation to discrimination, claims could be filed with ordinary courts,
labour courts or the Equal Treatment Agency. Sanctions applied in discrimina-
2 Antidiscrimination Law (Equality of Treatment)
63
tion cases are depending upon the state organ/court with the claim were filed,
and the nature of the violated regulation. Generally speaking courts could pose
more serious sanctions (lost wages, reinstatement into the original job), and
the ETA could impose only rather weak sanctions (fine, and publication of its
decisions on its website) which lack considerable preventive effect. The sanctions imposed by labour courts were also seriously cut back by new Labour
Code, which came into effect 1 July 2012. For example reinstatement into the
previously hold position could be ordered under the new legislation very rarely,
compared to the previous one. The amount of lost wages is also maximised by
the new legislation in one year’s salary.
The right of the trade unions to examine the implementation of the employment related regulations at the workplaces, and the scope of labour inspectorate
in equal pay cases were cut back since 2011.
In 2012, the ETA has organised several seminars in the countryside to disseminate information about the regulations on equal treatment and best practices.61 In 2013 a huge campaign were financed in the media in which people
are informed that discrimination is illegal, and the violator could be punished
in case filing the case to the ETA.
Some group of social partners in a state financed project (Legal Point Plus)
provide legal advice to people free of charge. The project covers issues of discrimination in employment, as well. The statistics showing the composition of
cases of Legal Point Plus shows that discrimination against pregnant women
and mothers of small children is rather widespread, and frequently lead to
dismissal.
People in the countryside, especially those with low education, with no access to the Internet, and belonging to the Roma ethnic minority are especially
likely to lack information about equal treatment.
The Equal Treatment Authority appears in events attended by large crowds
of young people (e.g. in 2011 Sziget Festival, involving app. 400 000 fans from
over 70 countries)62 where the susceptible young people meet the principle of
equal treatment through interactive games and other activities based on personal involvement.63
61
For more details seehttp://www.egyenlobanasmod.hu/tamop/kepzesek#t20101019, accessed
14 December 2012.
62
http://www.sziget.hu/festival_english/programs2013/general_info.
63
http://www.egyenlobanasmod.hu/tamop/kommunikacio#szigetfesztival2011.
64
Implementation and Enforcement of EU Labour Law in the Visegrad Countries
Positive action is not widespread in Hungary, though there are some rules
with this object. According to Article 23 of Ebktv., positive action does not
violate the requirement of equal treatment: act, government decree based on an
act, or a collective agreement may order an obligation for positive discrimination for a specified group of employees in respect to employment relationships
or other relationships aimed at work.
The elimination of discrimination against Roma ethnic minority is an important target of the recent government. According to the latest modification of
Ebktv., since December 2011 the local governments of municipalities, towns
and the districts of the capital city should adopt a five-year local equal opportunities programme every five years.64 The local equal opportunities programmes
starts with a situation analysis on the educational, housing, employment, health
and social circumstances of disadvantaged social groups, including but not
exclusively women. Local equal opportunities programmes are drawn up by
public servants working at local governments who previously get relevant
training on equal opportunities. The mentors, following the training, also supervise the preparation and completion of the programmes. A local government
shall only be awarded any kind of financial support from the central budget or
the European Union or other programmes based on international agreements
(regardless it is based on individual decisions or on tender invitations), if it
has an effective local equal opportunities programme.65 Some of such equal
opportunities plans are published on the website of ETA.
Sex discrimination; however, do not seem to be at the forefront of state
policy in Hungary in 2012. The Government (in power since 2010) has adopted
an immensely conservative approach to gender issues, has reinforced traditional
gender roles, and has advocated ‘family mainstreaming’ rather than gender
mainstreaming.66
The ETA (as state organ) deals with all discrimination cases in Hungary. It handles more than one thousand cases per year, though the number of
complaints makes up a little portion of this case load. In 2011 the number of
grounded complaints was only 43, out of which 12 dealt with disability. The
number of all sex discrimination cases filed with the Equal Treatment Authority
(ETA) is only around 6–8 per year, of which only a portion deals with pay dis64
Article 31 of Ebktv., in force since 22 December 2011.
65
Article 31 Act CXXV of 2003on Equal Treatment and Promotion of Equal Opportunities.
66
‘Critical issues as regards the implementation of the UN CEDAW Convention in Hungary.
Submitted to the UN CEDAW Committee for consideration in relation to the examination
of the combined seventh and eighth periodic reports of Hungary 2012’ by Dr. Enikő Pap and
Réka Sáfrány, Lawyers of the Women’s Lobby. p. 1–2. http://www.nokjoga.hu/sites/default/
files/filefield/concerns-submission-of-hungarian-womens-lobby-to-cedaw-2012.pdf.
2 Antidiscrimination Law (Equality of Treatment)
65
crimination based on sex. It could be concluded that the number of equal pay
cases based on sex discrimination is unproportionally low compared to the
statistically proven pay gap in the country.
The personnel of ETA is composed of lawyers and other highly educated
professionals, who exercise properly their very narrowly tailored statutory
authority. The Equal Treatment Authority is a centrally organised state organ,
having offices only in Budapest. In the past few years, ETA developed a regional network through which properly trained lawyers provide legal advice
free of charge to potential victims of discrimination locally.67 The activity of
lawyers is intensively covered by the local media.68
The ETA played an important role in developing case law providing proper
protection against discriminatory practices of the employers against pregnant
women. It is quite widespread practice in Hungary that pregnant women are
dismissal with immediate effect during probationary period. ETA developed
a well-established case law, that dismissal of pregnant women during probationary period is discriminatory if no proper and well-grounded reason of dismissal is proved by the employer. In a case heard in 2012, a woman, employed
as a public employee by one of the organs of the Budapest’s Municipality,
went on sick leave during her probationary period. Later on, but still during
the 4-month probationary period she informed her employer that her illness is
related to her pregnancy. The employer suggested the termination of the employment relationship by mutual consent which was refused by the employee.
Later on she was dismissed with immediate effect during still the probationary
period. In the procedure of the ETA the employer could not prove that neither
it decided the dismissal prior to learning about the pregnancy of the employee,
and nor that it had any work-related ground of dismissal (refusing to do the
work of the cashier, not handling properly financial documents, etc.). Since the
employer could not present convincing evidence on violating work rules, or
inappropriate work performance, the ETA found discrimination based on the
facts that the employer dismissed the woman after she admitted her pregnancy.
The Authority did not imposed fine, only prohibited the public employer from
further violation of the law, and ordered the publication of the order on its
website for 60 days.69 (Reinstatement and compensation cannot be awarded,
in the absence of such power of the ETA.)
67
http://www.egyenlobanasmod.hu/tamop/terkep.
68
http://www.egyenlobanasmod.hu/tamop/kommunikacio#referensek.
69
EBH/585/2012. The order is published on the official website of the ETA from 20 February
2013 to 20 April 2013. http://www.egyenlobanasmod.hu/data/585-2012.pdf, (1 March 2013).
66
Implementation and Enforcement of EU Labour Law in the Visegrad Countries
The accession process forced Hungary to improve its anti-discrimination
legislation. Nonetheless, there are still serious structural problems with the
regulations set up by Ebktv. The institutional and relational scope of the equal
treatment regulation is extremely wide, as it was explained above. This extreme wideness in coverage is counterbalanced by extremely wide terms for
exemptions. According to Art 7 of Ebktv. the principle of equal treatment is not
violated by any legal act “a) which limits a basic right of the entity brought into
a disadvantageous position in order to enforce another basic right in an unavoidable situation, assuming that such a limitation is suitable for this purpose
and is also in proportion to it; b) which is found by objective consideration
to have a reasonable explanation directly related to the relevant relationship”.
Consequently, despite of the extremely wide scope of the Act, the protection
is weak because the accused could exculpate itself almost any time,70 and in
this regard Hungarian law has always been contrary to the EU equal treatment
regulations.71, 72 In this regard there has been no improvement in legislation.
A more targeted legislation which counterbalances the interests of the parties
more circumspectly and reflectively for specific situations of infringements
of equal treatment rights would provide women, mothers and fathers with
a much reliable and solid legal protection that this boundariless, very general
legislation, which covers in theory (with little exaggeration) any kind of differentiation committed by any legal entity and any person, but is rarely enforced
in practice due to its unclear, unspecific content and extremely wide terms of
exemptions.
Furthermore, there are some laws, which could be considered as discriminatory. For example the recent Government Decree on homebirth seems to
be discriminatory on the ground of age, because entire groups of women are
excluded from homebirth (women below 18 and over 40, the latter in case of
a first birth), and discriminatory on the ground of wealth, as well, because only
70
KÁDÁR, András Kristóf: Az egyenlő bánásmódról szóló törvény kimentési rendszere a közösségi
jog elveinek tükrében http://www.egyenlobanasmod.hu/tanulmanyok/hu/kimentesirendszer.pdf.
71
According to Article 7 of Act CXXV of 2003 on equal treatment and the promotion of equal
opportunities (2003. évi CXXV. törvény az egyenlő bánásmódról és az esélyegyenlőség előmozdításáról, hereafter: ‘Ebktv’). The principle of equal treatment is not violated by any legal
act ‘a) which limits a basic right of the entity brought into a disadvantageous position in order
to enforce another basic right in an unavoidable situation, assuming that such a limitation is
suitable for this purpose and is also in proportion to it; b) which is found by objective consideration to have a reasonable explanation directly related to the relevant relationship’.
72
A. K. Kádár Az egyenlő bánásmódról szóló törvény kimentési rendszere a közösségi jog
elveinek tükrében, available on: http://www.egyenlobanasmod.hu/tanulmanyok/hu/kimentesirendszer.pdf, accessed 10 December 2012.
2 Antidiscrimination Law (Equality of Treatment)
67
women who can pay for the extremely expensive private insurance can enjoy
the right to freely determine the conditions of her delivery.73
Despite the clear prohibition in law, there are several discriminatory practices, regarding mothers of small children. For example pregnant women and
mothers of small children are very frequently dismissed from their jobs. The
new Labour Code has seriously reduced the legal sanctions of unfair dismissal
in general,74 and some of the rules providing legal protection to women have
been also lifted. The legal protection of mothers and single fathers of a child
under the age of three has been reduced considerably after the period of unpaid
leave. Legislation here reinforces the traditional role of women in society and
should be considered discriminatory, because the role and obligation to take
care of a child is generally attached to the mother, and according to the law,
the father only replaces the mother if the mother is not able to (has died) or is
not willing (left the family) to fulfil her caring obligations.
The employer is prohibited from dismissing a pregnant woman from the
date that she notifies the employer of her pregnancy. (The same legal protection
covers IVF-treated women from the notification of the employer of the treatment, for the duration of the treatment, with a maximum of six months.) If the
employer still dismisses a pregnant woman, the dismissal shall be deemed to
be unfair (illegal) and the employee is entitled to reinstatement in her previous
job. Compared to previous legislation, the amount to be paid to the reinstated
employee in lost wages has been reduced from the actual monetary loss arisen
to a maximum of one year’s ‘absentee pay’ (távolléti díj), which is equal to
the worker’s basic salary in most cases.75 The amount of the absentee fee is
approximately equal to the worker’s basic salary in most cases.76
The same legal protection applies to mothers and single fathers as far as
they are on unpaid leave up to the age of three of the child. Mothers or single
fathers of small children, however, after returning to work, enjoy only much
reduced legal protection. If (s)he does return to work, a special set of rules
73
35/2011 (III. 21.) Korm. rendelet az intézeten kívüli szülés szakmai szabályairól, feltételeiről
és kizáró okairól (Government Decree 35/2011 (III.21.) on the rules, conditions and excluding
factors regarding giving birth outside (healthcare) institutions).
74
Reinstatement is available only for a handful of cases; the employee may instead sue for an
amount equal to payment due during the notice period (e.g. 45 calendar days’ payment after
5 years of service ), or for damages, for which the upper limit of lost income is equal to one
year’s payment (Article 82 of new Labour Code).
75
According to previous legislation (Act No. XXII of 1992), the employee was entitled to all her
lost wages, calculated based on her average salary.
76
According to previous legislation (Act No. XXII of 1992), the employee was entitled to all her
lost wages, calculated based on her average salary.
68
Implementation and Enforcement of EU Labour Law in the Visegrad Countries
will apply, depending on the underlying reason for dismissal. If the reason for
dismissal is related to the parent’s behaviour, then it must be so serious that it
could justify immediate dismissal without any notice period. If the reason for
dismissal is related to either the capabilities of the employee or the operation
of the employer’s business, the employee cannot be dismissed as long as there
is a vacancy in the employer’s given premises in which (s)he could be further
employed. This rule only applies if the capabilities, experience and qualification used by the employee in his/her current job could be used in (activities
relevant to) the other position. After the reduction of legal protection, sporadic
data collected on Legal Points Plus (legal advice provided by the social partners free of charge) reveals that the number of dismissal of mothers of small
children has increased.
The dismissal protection of a parent, who has temporarily been away from
work in order to take care of a sick child, was also repealed by the new Labour
Code. In this event, the parent can be lawfully dismissed, but the start of the
notice period is delayed until (s)he returns to work.
It is quite widespread – especially in the countryside – that mothers with
small children are prohibited from entering a shop with a pram.77 The usual
justification of this discriminatory practice is that prams can be used for the
purposes of shoplifting. The Equal Treatment Authority sanctions this unlawful
practice with posing fine.
The new Labour Code, which reduced in several regards, the legal protection enjoyed previously by mothers of small children, introduced new regulations on executive employees which could detrimentally affect the promotion
possibilities of women, and could leave women in executive positions without any legal protection in case of pregnancy.78 Under the new Labour Code,
executive employees (either male or female) do not enjoy any of the legal
protection against dismissal as described above. The most worrisome aspect
of the new legislation is that it covers a wide range of employees, not only
the CEO and his/her deputies. Paragraph (1) Article 208 of the new Labour
Code already goes much further than the traditional definition, when stating
that any worker could be considered to be an executive employee whose work
is directly controlled by the CEO, and all those who may replace the CEO
fully or partly. In this regard the partial replacement of the CEO raises further
questions, especially with regard to the so-called ‘internal representation’ of
77
http://www.egyenlobanasmod.hu/jogesetek/en/642-2010-en.pdf, accessed 10 December 2012.
78
Article 208-211. of the new Labour Code.
2 Antidiscrimination Law (Equality of Treatment)
69
the company, which is very frequent in employment relationships.79 The immediate supervisor at work partly replaces the CEO with regard to the direct
supervision of work and could therefore theoretically lack any legal protection
provided by labour law.
Paragraph (2) goes even further when stating that the employee and the employer may agree in the employment contract that the rules of managerial employees will be applied to any employee if he/she has ‘a job of great importance
with regard to the employer’s operation’, or has ‘a job of greater confidentiality’
provided that his/her basic salary is at least sevenfold of the applicable minimum wage. On the basis of recent court practice which considers a dismissal
fair if the employer proves that they have lost confidence in the employee, we
could expect that the criteria of ‘importance’ and ‘confidentiality’ will not de
facto limit the application of Paragraph (2) Article 208, but the single relevant
limiting factor will be the sevenfold amount of the minimum wage (approximately EUR 2 340 – equal to 7 X HUF 93 00080 = HUF 651 000).81 Taking into
account the power structure of the employment relationship, the employer can
almost freely determine who would be considered to be an executive employee
among those earning enough to fall within the minimum-wage-based threshold,
and would consequently be employed without any legal protection (in a United
States type of employment-at-will relationship).
It must also be noted that all regulations which enable the employer to
dismiss the employee without justification (whose number has seriously increased in the public sphere under the Orbán Government) increases the risk
that female employees are dismissed due to some discriminatory reason. For
such cases the Equal Treatment Authority (ETA) (Egyenlő Bánásmód Hatóság,
EBH) has requested solid justification from the employer. In the event of a lack
of lawful justification, the employer is liable due to violation of the law on
equal treatment.82
79
According to general practice, for more than a few dozen employees, the execution of managerial rights and obligations are shared between different managerial levels from the top executive down to the foremen.
80
The national minimum wage in 2012 is EUR 334.50 (HUF 93 000; calculated according to the
exchange rate of 15 August). 298/2011. (XII. 22.) Government Decree.
81
Such salary is approximately three times the average salary and is paid to a wide range of
employees from medium-rank managers to professionals of university degree in the private
sector, especially in multinational enterprises.
82
From established case law, see e.g. http://www.egyenlobanasmod.hu/jogesetek/hu/694-2009.pdf;
and http://www.egyenlobanasmod.hu/jogesetek/hu/122-2010.pdf, both accessed 10 December
2012.
70
Implementation and Enforcement of EU Labour Law in the Visegrad Countries
As far as the effect of Article 208 of the Labour Code is concerned, this
new law could have a detrimental effect on the promotion and remuneration
of women at the workplace regardless of their actual employment-related decisions. Women will most probably be aware of the serious legal risks involved in
a promotion to a position with a salary higher than seven times the applicable
minimum wage and women in vulnerable positions (e.g. older workers, and
those who are planning a pregnancy or adoption) will avoid such promotion,
further decreasing the number of women in executive positions in Hungary.
Surely there will be some women who will accept the challenge of such promotions and will lose their jobs without any legal protection when they get
pregnant, adopt a child, become seriously ill, etc.83
Hungarian legislation also violates the Parental Leave Directive insofar as
it does not provide fathers with at least one months’ leave on a non-transferable
basis.84
In relation to the legal protection of pregnant women, it is interesting to
note, that the Commissioner for Fundamental Rights filed a petition with the
Constitutional Court requesting the nullification of Article 65 (5) of Act No. I.
of 2011 on Labour Code, according to which the pregnant employee may invoke the protection against dismissal only if she notified the employer of her
pregnancy prior to the notification on dismissal. According to the argument of
the Ombudsman, the obligation of such notification violates pregnant women’s
human dignity and their right to privacy. The information on early pregnancy
is related to the woman employee’s most personal internal sphere, her state
of health and her (family) relationships. In the first three months, pregnancy
may be miscarried due to several reasons. In such cases, the notification on
pregnancy may lead to an unreasonably humiliating situation offending the
innermost privacy, since the employer has to be notified about the miscarriage,
as well. The petition also pointed out that potential misuse of law could not be
prevented by such legislation; therefore such law lacks any adequate justification.85 As the Hungarian legislation in this regard is in line with the Article 2 a.
of the Directive 92/85/EEC, the judgement of the Hungarian Constitutional
Court may add certain new points to the European-level debate about the issue.
83
Hungarian employers are rather intolerant of pregnant employees or employees with young
children. 9 out of 10 Hungarian women, after taking unpaid leave for raising a child up to the
age of three, are not taken back by their employer despite the legal obligation to do so.
84
Clause 2 Council Directive 2010/18/Eu and Articles 118(4), 128 and 130 of the New Labour
Code.
85
Short news on the activity of the Ombudsman is available in English on http://www.obh.hu/
allam/eng/index.htm (11 March 2013).
2 Antidiscrimination Law (Equality of Treatment)
71
The sanctions cannot be considered effective and dissuasive. As it was
already mentioned above, ETA could impose only fines, but not more serious
sanctions. Generally speaking, courts are entitled to apply more effective sanctions, though the new Labour Code seriously reduced the level of applicable
legal sanctions, therefore the level of legal protection enjoyed employees are
much lower that it was before. The EU anti-discrimination directives served
a very important role in setting up a minimum level of protection which could
not be reduced by the Hungarian legislator.
2.4
Antidiscrimination Law in Poland
2.4.1 Introductory Remarks
Sources of prohibition of discrimination in the Polish labour law can be
seen as far back as in The Labour Code of 1974. In the preamble, the legislator stipulated that, in the name of social justice socialist labour law treated all
employees equally, giving everyone the same rights in respect of performing
the same duties.86 The great importance of the preamble is proved with the fact
that the formula “all men are created equal” was understood in the doctrine
of labour law as the principle of equal treatment of employees of a normative
nature, fulfilling the functions of a legislative guideline, interpretive guidance
and directive shaping the activity of government authorities and administration
of individual employers.87
2.4.2 Equal Treatment in Employment and Prohibition
of Discrimination
As a result of the amendment to The Labour Code in 1996 the preamble
was deleted. However, the principles of equal treatment and the prohibition
of discrimination were not removed from The Labour Code. In the section on
the basic principles of labour law88 the legislator introduced art. 11² and 113
86
Act of 26 June 1974 The Labour Code Dz.U. [Journal of Laws] of 5 July 1974, no. 24, it. 141
[in Polish].
87
B. Wagner, Zasada równego traktowania i niedyskryminacji pracowników [The principle of
equal treatment and non-discrimination of employees], PiZS 2002, no. 3, p. 2 [in Polish]. See
also, W. Sanetra, Zasada równego traktowania pracowników w kodeksie pracy [The principle
of equal treatment of employees in the Labour Code], PiP 1977, no. 7, p. 67 [in Polish].
88
L. Florek, Zakaz dyskryminacji w stosunkach pracy [Prohibition of discrimination in labour
relations], PiZS 1997, no. 1, p. 2 [in Polish].
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
of The Labour Code, which state that employees have equal rights in respect
of the same performance of the same duties; which in particular applies to the
equal treatment between men and women in the field of work. The principle
of equal treatment was completed with the principle of non-discrimination
contained in 113 of The Labour Code,89 where the legislator determines basic
factors, which in Polish conditions could be a source of discrimination.90 The
implemented principles of equality before the law and non-discrimination refer
to the general principle of the equality of an individual before the law – one of
the basic human rights, expressed in constitutional provisions and international
law binding Poland.91
The importance of the principle of equal treatment in employment increased
as a result of the amendment to The Labour Code of 2001, when section IIa
was added, whose essence consisted in the formulation of a detailed content
of the principle of equal treatment between women and men in employment
and related obligations of the employer.92 The changes were inspired by European law regulations and were aimed at the adaptation of the Polish Labour
Code stipulations to the requirements of the European Union directives.93 The
purpose of the proposed changes was, among others, to raise the importance
of gender criterion to the level of special prohibition of discrimination.94 The
2001 amendment also introduced terminology changes in the wording of the
provisions of art. 11² and art. 11³ of the Code, consisting in the replacement
of the term order for equal treatment “in the field of work” with the order
for equal treatment in “employment” and the prohibition of discrimination in
“employment relationships” with the prohibition of discrimination in “employment”, which was meant to extend the sphere of legal relations to which these
89
In accordance with art. 11³ of the act amending the act – The Labour Code and amending
certain acts of Dz. U. [Journal of Laws] of 2 June 1996, no. 24 it. 110. Any discrimination in
employment relationships, in particular in respect of gender, age, disability, race, nationality,
views, especially political or religious ones, and trade union membership – is prohibited.
90
L. Florek, Zakaz dyskryminacji w stosunkach…, p. 4.
91
J. Skoczyński, Zasada równego traktowania pracowników [The principle of equal treatment
of employees], PiZS 1999, no. 7–8, p. 2 [in Polish].
92
T. Liszcz, Równo ć kobiet i m czyzn w znowelizowanym kodeksie pracy [Equality of women
and men in the amended Labour Code], PiZS 2002, no. 2, p. 2 [in Polish].
93
See. J. Iwulski, W. Sanetra, Kodeks pracy. Komentarz [The Labour Code. Commentary], Warsaw 2003, p. 82 [in Polish].
94
Cf. Uzasadnienie do Rządowego projektu o zmianie ustawy – kodeks pracy oraz o zmianie
niektórych innych ustaw [Grounds for the government bill on the amendment to the act – Labour
Code and on the amendment to certain other acts], Parliamentary print no. 2916 [in Polish].
2 Antidiscrimination Law (Equality of Treatment)
73
principles apply.95 Not without significance was also the place, where the new
chapter was included, just after the chapter “Basic principles of labour law,”
because its provisions are essentially a detailed development of the principles
of equal treatment of employees and non-discrimination.96
Following the accession of Poland to the European Community the Labour
Code was amended again. The legislator’s idea was to once again adapt Polish
labour law to the requirements stemming from the European Union law.97 The
following legal acts particularly influenced the shape of the changes made
then, as well as the wording of the current legislation:98 Council Directive
2000/43/EC of 29 June 2000,99 Council Directive 2000/78/EC of 27 November
2000100 and Council Directive 76/207/EEC of 9 February 1976.101 The amendments consisted primarily in the modification of existing or introduction of
new standards concerning equal treatment in employment.102 With regard to
the amendment to equal treatment standards and the prohibition of discrimination the amendments primarily involved the change of content and the title of
chapter IIa of the Code, which was changed from “Equal treatment between
men and women” in force after the amendment of 2001, to “Equal treatment in
employment”. In turn, the amendment to art. 18³ª of The Labour Code consisted
in broadening the hypothesis of the provision. The prohibition of discrimination from art. 18³ª § 1 of The Labour Code was expanded to include not only
gender, but also age, disability, race, religion, nationality, political views, trade
union membership, ethnic origin, creed, sexual orientation, employment for
a definite or an indefinite period of time or either full or part time. As a result
of the amendments the applicable principle of equality relating to gender of an
employee has thus been replaced with the principle of equality as such. There95
B. Wagner, Zasada równego traktowania i niedyskryminacji pracowników [The principle of
equal treatment and non-discrimination of employees], PiZS 2002, no. 3, p. 2 [in Polish].
96
T. Liszcz, Równo ć kobiet i m czyzn…, p. 2.
97
Cf. W. Cajsel, Kodeks pracy. Komentarz [The Labour Code. Commentary], Warsaw 2004,
p. 24 [in Polish].
98
R. Bessaraba, M. Kołodziejuk, Bli ej Unii w prawie pracy [Closer to EU in the labour law],
Warsaw 2004, p. 72 [in Polish].
99
Official Journal of EC L 180 of 19. 07. 2000, p. 22; Official Journal of EU Polish special edition,
ch. 20, vol. 1, p. 23 [in Polish].
100
Official Journal of EC L 303 of 02. 12. 2000, p. 16; Official Journal of EU Polish special edition,
ch. 5, vol. 4, p. 79 [in Polish].
101
Official Journal of EC L 39 of 14. 02. 1976, p. 40; Official Journal of EU. Polish special edition,
ch. 5, vol. 1, p. 187 [in Polish].
102
L. Florek, [in:] Kodeks Pracy. Komentarz [The Labour Code. Commentary], ed. by L. Florek.
Warsaw 2011, p. 116 [in Polish].
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
fore, the prohibition of discrimination against an employee has been extended
also to criteria other than gender of an employee.103
As a result of the amendment also art. 11³ of The Labour Code has been
changed, which is semantically related to art. 18³ª of The Labour Code.104 The
legislator has undoubtedly decided to expand the criteria, in respect of which
any discrimination in employment is prohibited.105 To the prohibition of discrimination in force to date ethnic origin, creed, sexual orientation, as well as
employment for a definite or an indefinite period of time or either full or part
time, have been added.
Although the criteria for the prohibition of discrimination stipulated in
The Labour Code are closely correlated with the Community regulations,106
one can observe some differences between the Polish law and the Community
law. Reasons for discrimination specified by the Polish legislator are a list of
examples as evidenced by the phrase “in particular” contained in the Polish
Labour Code. However, the criteria for discrimination stemming from the directives are exhaustive. The Polish legislator then takes a broader approach to
the possible grounds for discrimination than the EU legislator does. A more
comprehensive approach to discrimination is also proved with the inclusion in
the Polish regulations of the prohibition of discrimination in respect of type of
employment agreement and working time. Such solution107 reflects the principles expressed in the directives governing situations of persons employed under
atypical forms of employment.108 Regulations in the Code also add a criterion
103
M. Barzycka-Banaszczyk, Kodeks pracy. Komentarz [The Labour Code. Commentary], 4th Edition. Warsaw 2004, p. 44 [in Polish].
104
See W. Cajsel, Kodeks pracy. Komentarz [The Labour Code. Commentary], Warsaw 2004,
p. 24 [in Polish].
105
See. ibid, p. 24.
106
See. J. Król, Nowelizacja kodeksu pracy dotycząca równego traktowania w zatrudnieniu na tle
regulacji wspólnotowych [Amendment to The Labour Code on equal treatment in employment
on the background of Community regulations], Radca Prawny. 2004, no. 4, p. 94 [in Polish].
107
L. Mitrus, Wpływ regulacji wspólnotowych na Polskie prawo pracy [Influence of Community
regulations on the Polish labour law]. Cracow 2006, p. 191 [in Polish].
108
Council Directive 97/81 EC of 28 June 1999 concerning the Framework agreement on fixedterm work, concluded by the European Union of Industrial and Employers’ Confederations
(UNICE), the European Centre of Enterprises with Public Participation (CEEP) and the European Trade Union Confederation (ETUC), Council Directive 97/81/EC of 15 December 1997
concerning the Framework agreement on part-time work concluded by the European Union of
Industrial and Employers’ Confederation /UNICE/, the European Centre of Enterprises with
Public Participation /CEEP/, the European Confederation of Trade Unions /ETUC/.
2 Antidiscrimination Law (Equality of Treatment)
75
unknown to the Community law, the one of the prohibition of discrimination
in respect of “trade union membership”.109
But the broader approach to the reasons for discrimination should not be
classified as a mistake. Directives set minimum standards110 that Member States
are required to implement in the national law. The phrase “in particular” found
in the Polish provision can be justified with the fact that other criteria for discrimination than those listed in art. 18³ª of The Labour Code are included in the
new legal acts, which Poland is a party to.111 However, omitting by the Polish
lawmaker a criterion referred to in directive 2000/78/EC of prohibition of discrimination on grounds of “opinion” in its broad sense can arise doubts as to
the correctness of the transposition. The Labour Code prohibits discrimination
solely in respect of political views, it does not include other types of opinions
in the prohibition of discrimination. Such a condition, however, should not be
recognized as narrower in relation to transnational regulations.112 Pursuant to
the Polish labour law a catalogue of reasons is open, and the resulting gap can
be bridged as a result of the interpretation of art. 18³ª of the Labour Code.113
2.4.3 Legal Definitions of Discrimination
The concept of discrimination is meant as both direct discrimination, i.e.,
when different rules apply to people in the same situation, as well as indirect
discrimination, when the same rules apply, but to employees finding themselves
in different situations.114 The Polish Labour Code initially did not define direct
discrimination. As a result of the amendments to the Code of 24 August 2001
only a definition of indirect discrimination was introduced, which, however,
was specified with the use of synthetic and vague phrases.115 It was only as
109
L. Mitrus, Wpływ regulacji wspólnotowych…, p. 191.
110
Cf. Z. Hajn, Specyficzne problemy stosowania europejskiego prawa pracy [Specific problems
of the application of European labour law], EPS, 2006, no. 8, p. 5 et seq. [in Polish]. See
Irena Boruta, Zakaz dyskryminacji w zatrudnieniu – nowa regulacja prawna [Prohibition of
discrimination in employment – a new legal regulation], PiZS 2004, no. 2, p. 3 [in Polish].
111
See. Ludwik Florek, [in;] Prawo Pracy. Komentarz [Labour Law. Commentary] ed. L. Florek,
Warsaw 2011, p. 117 [in Polish].
112
Cf. L. Mitrus, Wpływ regulacji wspólnotowych…, p. 191.
113
J. Król, Nowelizacja kodeksu pracy…, p. 94.
114
M. Barzycka-Banaszczyk, Kodeks pracy. Komentarz [The Labour Code. Commentary], 4th Edition. Warsaw 2004, p. 45 [in Polish].
115
W. Sanetra, [in], Komentarz do Kodeksu pracy [Commentary on The Labour Code], J. Iwulski,
W. Sanetra, 1st Edition. Warsaw, 2009, p. 142 et seq. [in Polish].
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
a result of the amendment to The Labour Code of 2003116 that new legal definitions of direct and indirect discrimination were introduced,117 which, however,
raised some doubts expressed in the literature of labour law, in particular with
regard to “indirect discrimination”.118
2.4.3.1 Direct discrimination
It is pointed out in the literature that the regulation on direct discrimination implemented into Polish labour law is one of the most restrictive ones
in EU states.119 In the light of EU definitions direct discrimination means to
treat a person less favourably than another person is, was or would be treated
in a comparable situation. Pursuant to Polish law it is assumed that direct
discrimination takes place when an employee for one or a number of reasons
specified in § 1 art. 18³ª of The Labour Code was, is or could be treated in
a comparable situation less favourably than other employees. The analysis of
the above definition shows certain incoherence with the definition included in
the directives. I. Boruta points out that the core of the definition corresponds
to the (informal) perception of discrimination as unjust distinction. The details
of this definition, however, are highly questionable or contain errors.120 A different position is presented by J. Król who claims that the Polish definition
of direct discrimination, despite the different rhetoric (“was, is, or could be”),
implements the standard contained in the Community law.121
Pursuant to the Polish definition the legislator has introduced a certain hypothetical condition, as indicated by the phrase “an employee discriminated
against could be treated.” The use of the term “could be” does not seem particularly felicitous in this provision.122 In the doctrine it is noted that none of
the well-known definitions of direct discrimination includes such a far-reaching
116
Act of 14 November 2003 amending the act – Labour Code and amending some other acts
(Dz. U. [Journal of Laws] of 15 December 2003, no. 213, it. 2081) [in Polish].
117
J. Król, Nowelizacja kodeksu pracy…, p. 95.
118
L. Mitrus, Wpływ regulacji wspólnotowych…, p. 188.
119
A. Sobczyk, Nowelizacja prawa pracy w zakresie umownego stosunku pracy, Studia z zakresu
prawa pracy i polityki społecznej, [Amendment to the labour law within the scope of contractual
employment relation, Studies in the field of labour law and social policy], Ed. A. wiątkowski.
Cracow 20003/2004, p. 118 [in Polish].
120
See. I. Boruta, Zasady dyskryminacji w zatrudnieniu – nowe poj cia [Principles of discrimination in employment – new concepts], Monitor Prawa Pracy 2004, no. 2, p. 36 [in Polish].
121
J. Król, Nowelizacja kodeksu pracy…, p. 95.
122
D. Dörre-Nowak, M. Wandzel, [in:] Kodeks pracy. Komentarz [The Labour Code. Commentary] ed. B. Wagner, Gdańsk 2008, p. 91 [in Polish].
2 Antidiscrimination Law (Equality of Treatment)
77
solution. Juxtaposition of the Polish definition and EU definitions suggests
that the Polish legislator was inspired by the EU definition, but misunderstood
it, assigning hypothetical behaviour to the discrimination itself, rather than to
behaviour with which discriminatory distinction is compared. The Polish definition shows that discriminatory treatment of a given person is compared with
the treatment of other employees. Whereas from the content of the directives it
appears that the treatment of a specific person is compared with the treatment
of another (one) person in comparable conditions.123
In the literature it is also pointed out that the Polish definition of discrimination is of non-exhaustive nature. This applies to unfavourable treatment of
women because of pregnancy.124 Since the definition should include a guideline
that in relation to gender-based discrimination any incident of less favourable
treatment of a woman in relation to pregnancy and maternity leave will be
deemed discriminatory.125 However, as has already been indicated, the catalogue of art. 18³ª of The Labour Code is open, and therefore does not preclude
protection of other categories of employees than those that are directly mentioned.
2.4.3.2 Indirect discrimination
The concept of indirect discrimination appeared in The Labour Code only
as a result of the amendment of 2001, and then with the act amending The
Labour Code in 2003 a new definition was introduced. The concept of “indirect discrimination” was developed by the EU Court of Justice especially in
the cases of gender-based discrimination. The case law of the Court of Justice
shows that indirect discrimination consists in the ostensible application of the
distinction criterion, which is not a prohibited criterion (it is a “neutral” criterion – e.g. mobility, availability, continuity of employment), but, in fact, it
puts a person having the trait on grounds of which employees must not be differentiated (e.g. gender) at a disadvantage, and thus leads to the same results
as if the prohibited criterion was used.126
Pursuant to the amendment of 2003, in force since 2004, the definition
of indirect discrimination is that indirect discrimination exists when as a result of a seemingly neutral provision, criterion used or action taken, there are
123
See. I. Boruta, Zasady dyskryminacji w zatrudnieniu…, p. 36.
124
Cf. art. 2 it. 7 of directive 2002/73/EC.
125
See. I. Boruta, Zasady dyskryminacji w zatrudnieniu…, p. 36.
126
D. Dörre-Nowak, M. Wandzel, [in:] Kodeks pracy. Komentarz [The Labour Code. Commentary] ed. B. Wagner, Gdańsk 2008, p. 91 [in Polish].
78
Implementation and Enforcement of EU Labour Law in the Visegrad Countries
disproportions in terms of employment conditions to the detriment of all or
a substantial number of employees belonging to the group differentiated due to
one or more reasons specified in The Labour Code as prohibited bases of discrimination, if such disproportions cannot be justified with any other objective
reasons. However, pursuant to directives indirect discrimination occurs when
a seemingly neutral provision, criterion or practice particularly disadvantages
people (of a given gender, race, ethnicity, who profess religion or have different
opinions, of a certain age, disabled, of a different sexual orientation) in relation
to other persons, unless such a provision, criterion or practice are objectively
and legally justified and the means for achieving that aim are appropriate and
necessary.127 The definition of indirect discrimination introduced into Polish
labour law is therefore dissimilar to the definition functioning in EU directives.
The assessment of this situation is not unambiguous, even for national law
specialists. Some authors suggest that the provisions of the regulation in this
shape seem a little more lenient than the provisions of directives,128 whereas
others claim that the Code definition of indirect discrimination contained in
art. 18³ª § 4 does not meet the requirements of Community law.129 It is also
emphasized that what is missing from the Polish law is the dependence of indirect discrimination assessment on the legality of the purpose of an action.130
The faults of implementation of anti-discrimination directives spotted in
Polish literature were addressed in the objections as to non-implementation of
EU regulations raised by the European Commission and presented to Poland.131
127
I. Boruta, Zakaz dyskryminacji w zatrudnieniu – nowa regulacja prawna [Prohibition of discrimination in employment – a new legal regulation], PiZS 2004, no. 2, p. 3 [in Polish].
128
D. Dörre-Nowak, M. Wandzel, [in:] Kodeks pracy. Komentarz [The Labour Code. Commentary]
ed. B. Wagner, Gdańsk 2008, p. 92 [in Polish].
129
J. Król, Nowelizacja kodeksu pracy…, p. 95.
130
E. Naumann, Dyskryminacja w prawie pracy [Discrimination in labour law], Monitor Prawa
Pracy, 2007, no. 6, p 287 [in Polish].
131
Objections as to improper or incomplete implementation of the Council Directive 2000/43/EC
of 29 June 2000 implementing the principle of equal treatment of persons irrespective of
racial or ethnic origin (Official Journal of EC L 180 of 19. 7. 2000, p. 22; Official Journal
of EU Polish special edition, ch. 20, vol. 1, p. 23 [in Polish]; infringement no. 2006/2255,
the European Commission’s letter of 4 July 2006, ref. no.: SG-Greffe (2006) D/203785), –
Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for
equal treatment in employment and occupation (Official Journal of EC L 303 of 2. 12. 2000,
p. 16; Official Journal of EU Polish special edition, ch. 5, vol. 4, p. 79 [in Polish]; infringements
no. 2006/2445, the European Commission’s letter of 15 December 2006, ref. no.: SG-Greffe
(2006) D/207993), Directive 2002/73/EC of the European Parliament and of the Council of
23 September 2002 amending Council Directive 76/207/EEC on the implementation of the
principle of equal treatment between men and women in the access to employment, vocational
training and promotion and working conditions, (Official Journal of EC L 269 of 5. 10. 2002,
2 Antidiscrimination Law (Equality of Treatment)
79
As a result of the objections raised The Labour Code was amended. The effect
of the amendment is that the concept of discrimination has been made more
detailed and precise. The changes included the addition of a conditional to
the definition by adding the phrase “or could occur”, also the areas for the application of the provision have been indicated such as “promotion, access to
training in order to improve professional qualifications.” A significant change
is also a reference to the element of a lawful purpose excluding in certain circumstances specific actions from the criterion of indirect discrimination.132
Thus, it was necessary to introduce another amendment to The Labour Code in
2008, as a result of which it appears from current legislation that the definition
of indirect discrimination has been made similar to the Community definition.
Indirect discrimination occurs not only when as a result of a seemingly neutral
provision, criterion used or action taken there occur, but also there could occur,
unfavourable disproportions or a particularly unfavourable situation within
the scope of the establishment and termination of an employment relationship, employment conditions, promotion and access to training in order to
improve professional qualifications in relation to all or a substantial number
of employees belonging to the group differentiated due to one or more reasons
specified in art. 183a § 1 of the Labour Code. Indirect discrimination does not
occur, however, in the situation when the above-mentioned provisions, criterion
or action are objectively justified by a legitimate aim to be achieved, and the
means of achieving that aim are appropriate and necessary.133
It is worth adding here that similarly to the regulations contained in the
directives in the Polish labour law from 1 January 2004 also actions consisting in encouraging another person to violate the principle of equal treatment
in employment are deemed discrimination. In turn, any behaviour involving
forcing anyone to practise discriminatory behaviour in relation to other persons
for reasons specified as prohibited bases of discrimination is recognized as
discrimination in Community definitions.
As a result of the last amendment which took place in 2008, adopted as part
of more appropriate implementation of the directives, the phrase “or a person is
ordered to violate this principle” was added to art. 18³ª § 5 of the Labour Code.
p. 15, Official Journal of EU Polish special edition, ch. 5, vol. 4, p. 255 [in Polish]; infringement
no. 2006/2522, the European Commission’s letter of 23 March 2007, ref. no.: SG-Greffe (2007)
D/201588).
132
Uwagi prawne na temat rządowego projektu ustawy o zmianie ustawy – Kodeks pracy [Legal
comments about the government’s bill on the amendment to the act – The Labour Code] (parliamentary print no. 430), BAS-WAL 1473/08. Warsaw, 06 June, 2008 [in Polish].
133
Act of 21 November 2008 amending the act – The Labour Code Dz. U. [Journal of Laws] of
18 December 2008, no. 223 it. 1460 [in Polish].
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
As a result of changes in force since 2009, not only has the Polish legislator
seen encouragement, support of employees in their actions aimed at causing,
or causing, unequal treatment in employment, as discrimination, but also issuing direct commands to take discriminatory actions.134 Responsibility for the
breach of the prohibition of discrimination is therefore borne not only by an
employer who themselves discriminate against a person or whose subordinates
force employees to discriminatory conduct, but also by anyone who only encourages others to such conduct.135 Regulations concerning discrimination in
force in Polish law should therefore be seen as broader compared to the directives which they have been based on.136
2.4.4 Harassment and Sexual Harassment
Another form of discrimination introduced into The Labour Code in 2004 is
also harassment and sexual harassment. The harassment construct included in
Community directives must be seen as a framework standard, which means that
a legislator is free, within the limits imposed by the directives, to formulate its
content. Harassment in the light of Community definitions is unwanted conduct
related to one of the criteria of discrimination listed (gender, race, ethnic origin,
religion or opinion, age, disability, sexual orientation), whose purpose or effect
would be violating a person’s dignity and creating an intimidating, hostile,
degrading, humiliating or offensive environment. The definition of harassment
introduced in 2004 into The Polish Labour Code provides that discrimination
is also a conduct, whose purpose or effect is violating an employee’s dignity
or the employee’s degradation or humiliation.
The national definition of harassment, however, differs from the definition
of harassment contained in EU directives. Differences in the Polish regulation
in relation to its EU standard cast doubt in Polish literature as to the correct and
error-free implementation.137 Unlike the Community legislator the Polish one
does not associate harassment with “unwanted conduct” resulting from gender,
race, ethnic origin, religion or opinion, age, disability, sexual orientation. The
Labour Code only stipulates that discrimination is conduct whose purpose
134
M. Chakowski, [in:] Kodeks Pracy Komentarz dla Menad erów HR [The Labour Code Commentary for HR Managers]. Ed. A. Patulski. G. Orłowski. Gdańsk 2011, p. 78 [in Polish].
135
See. K. K dziora, K. miszek, Dyskryminacja i mobbing w zatrudnieniu [Discrimination and
mobbing in employment]. 2nd Edition. Warsaw 2010, p. 43 [in Polish].
136
See. A. Lankamer, P. Potocka-Szmoń, Dyskryminacja w miejscu pracy [Discrimination in the
workplace], Gdańsk 2006, p. 16 [in Polish].
137
Cf. I. Boruta, Zakaz dyskryminacji w zatrudnieniu…, p. 39. Cf. J. Król, Nowelizacja kodeksu
pracy…, p. 97.
2 Antidiscrimination Law (Equality of Treatment)
81
or effect is violating an employee’s dignity or the employee’s humiliation or
degradation, understood as alternative conditions.138
The Polish legislator also distinguishes harassment from sexual harassment,
which was included in the directives as unwanted verbal, non-verbal, physical
conduct of a sexual nature whose purpose or effect is violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive
environment. The legislator in art. 18³ª § 6 of The Labour Code assumed that
gender-based discrimination is also any unacceptable conduct of a sexual nature
or relating to an employee’s gender, whose purpose or effect is violating an
employee’s dignity or the employee’s degradation or humiliation; while this
conduct is to consist of physical, verbal or non-verbal elements.
The implemented definition of sexual harassment differed from the definition
adopted in EU directives. Firstly, in the Polish definition of sexual harassment
gender-based discrimination was also any “unacceptable conduct”. However,
the Community definition of sexual harassment does not recognize sexual harassment as “unacceptable” conduct, but as “unwanted” conduct. Consequently,
juxtaposition of definitions of harassment and sexual harassment creates an
impression that harassment is an objective act, whereas sexual harassment –
a subjective one (“unacceptable conduct”).139 Secondly, the Polish legislator
recognizes conditions of violating an employee’s dignity and “employee’s degradation or humiliation” as alternative conditions, and not – as is the case in
the Community definition – as remaining in conjunction with one another.140
With regard to the correctness of the implementation of EU standards,
including the definition of harassment and sexual harassment, the European
legislator took a stand raising a number of objections in relation to Poland
regarding the correctness of the implementation. As a result of the objections
raised by the European Commission in 2008.141 The Labour Code was amended.
The scope of the amendment introduced covered modification of the definitions
of harassment and sexual harassment. In accordance with the new definition in
138
Cf. A. Lankamer, P. Potocka-Szmoń, Dyskryminacja w miejscu pracy [Discrimination in the
workplace], Gdańsk 2006, p. 17 [in Polish].
139
L. Florek, Polskie prawo pracy a unijne standardy [Polish labour law and EU standards], Edukacja Prawnicza no. 1 (58)/2004, p. 24 [in Polish].
140
H. Szewczyk, Molestowanie i molestowanie seksualne jako formy dyskryminacji w zatrudnieniu w wietle prawa wspólnotowego [Harassment and sexual harassment as a form of
discrimination in employment under Community law], Monitor Prawniczy, 2001, no. 2, p. 84
[in Polish].
141
Uzasadnienie projektu, Ustawa o zmianie ustawy – Kodeks pracy [Grounds for the bill. Act
amending the act – The Labour Code], Parliamentary print no. 430, Warsaw, 28 February 2008
[in Polish].
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
force since 2009, harassment is unwanted conduct whose purpose or effect is
violating an employee’s dignity and creating an intimidating, hostile, degrading,
humiliating or offensive environment. It should be noted that as a result of the
changes the legislator has clarified the definition of discrimination with a detailed identification of actions that could lead to the creation of an unfavourable
environment in relation to an employee. Also, “unwanted conduct” has been
qualified as discrimination. Thanks to the adoption by the Polish legislator of
phrases from the directives, the conditions for harassment are not alternative,
but are in conjunction with one another.
The objections of the European Commission also concerned the definition
of sexual harassment adopted in the Polish Labour Code. In grounds for the
government bill on the act amending The Labour Code of 2008, the indicated
reason for the changes was the need to clarify the definition of sexual harassment by identifying actions which could result in creating an unfavourable
environment in relation to an employee. The definition of sexual harassment
in force since 2009 provides therefore that gender-based discrimination also
includes any unwanted conduct of a sexual nature or related to an employee’s
gender whose purpose or effect is violating an employee’s dignity, in particular
creating an intimidating, hostile, degrading, humiliating or offensive environment in relation to this employee; whereas such conduct may include physical,
verbal or non-verbal elements. Under the influence of making the Polish definition of sexual harassment similar to the directives regulations the legislator
has replaced the phrase “unacceptable conduct” with the phrase “unwanted
conduct”. Another legislative procedure aimed at making the definitions uniform was to replace the phrase included in the Polish definition “an employee’s
degradation or humiliation” with the phrase remaining in conjunction with
the condition of violation of dignity “in particular creating an intimidating,
hostile, degrading, humiliating or offensive environment”. At the same time it
is noteworthy that not all of the objections raised in the literature as to the correctness of the implementation of directives were taken into consideration in
the amendment, an example of which is the fact that including both behaviour
of sexual nature and relating to gender in the concept of sexual harassment was
indicated as a major flaw in its definition of 2003. However, it is only conduct
associated with human sexuality that is sexual harassment, whereas conduct
related to gender is gender-based harassment.142
Analyses of the definitions of harassment and sexual harassment in force
following the amendment of 2008 show that defining these pathological phe-
142
I. Boruta, Zakaz dyskryminacji w zatrudnieniu…, p. 39.
2 Antidiscrimination Law (Equality of Treatment)
83
nomena is not easy. Thanks to numerous changes they correspond to Community standards.
2.4.5 Violation of the Principle of Equal Treatment in Employment
and Positive Discrimination
Provision 18³ᵇ § 1 of The Labour Code gives concrete form to situations that
are in violation of the principle of equal treatment in employment by providing
their examples. Pursuant to this provision the violation of the principle of equal
treatment in employment means an employer treating an employee differently
on one or more grounds referred to in art. 18³a § 1 of The Labour Code with the
effect of, in particular: terminating or rejecting the establishment of an employment relationship, establishing disadvantageous conditions of remuneration for
work or other employment, or not being selected for promotion or not being
granted other work-related benefits, not being chosen to participate in training
organised to improve professional qualifications – unless the employer proves
that this was due to objective reasons. The phrase “in particular” used in the
provision shows that the consequences of unequal treatment do not have to be
limited only to the examples indicated. The solution proposed by the Polish
legislator is in accordance with the requirements of the Community.143
The quoted provision following the example of the Community regulation
also regulates the distribution of the burden of proof in cases of violation of
the principles of equal treatment. The provision in force under Polish labour
law in the from presented causes the burden of proof to be thoroughly borne
by the employer, as evidenced by the phrase contained in the provision “unless
the employer proves that this was due to objective reasons”. The construct used
in this case is different from the one previously used in Polish law.144 Under
art. 6 of The Civil Code, also used in connection with art. 300 of The Labour
Code, the burden of proving a fact lies with the person who draws legal effects
from that fact.
Contrary to the indicated typical regulation the one resulting from art. 18³ᵇ
of The Labour Code each time forces an employer to prove that actions taken
by them are not discriminatory because they were guided by objective reasons.
143
L. Mitrus, Wpływ regulacji wspólnotowych…, p. 195.
144
See. E. Maniewska [in:] Kodeks Pracy. Komentarz [The Labour Code. Commentary] ed. K. Ja kowski. 8th Edition. Warsaw 2012, p. 101 [in Polish].
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As has already been mentioned the above issue was regulated differently in
the Community directives.145 They show that the person who perceives themselves as a victim of failure to apply the principle of equal treatment presents
facts before the court, from which it may be presumed that there has been direct
or indirect discrimination. However, it is the defendant who must prove that
the principle of equal treatment has not been violated. This means that at the
beginning the burden of proof lies with the victim, and then it is transferred
to the employer. Undoubtedly, the solution proposed in EU directives is more
rational than the Polish construct. This is because the provision 18³ᵇ § 1of The
Labour Code in force in Poland results in the danger of initiating groundless
litigation and in any case forces the employer to prove that their actions are
not discriminatory.146 The risk associated with the language interpretation of
the provision transferring the burden of proof thoroughly to the employer has
been recognized in the case law of the Supreme Court. A relatively new line of
the case law of the Supreme Court147 confirms the fact that as far as the burden
of proof is concerned the solutions adopted in the European Union directives
should have been applied to Polish labour law. In one of the judgements the
Court unambiguously stated that the employee should indicate the facts making the allegation of unequal treatment in employment probable. Then it is the
employer that the burden of proof that they were guided by objective reasons
is transferred to.148
In art. 183b § 2 of The Labour Code the Polish legislator establishes circumstances in which it is reasonable to differentiate a situation of employees
with a view to achieving a legitimate aim, and thus countertypes to the principle
of equal treatment. The Polish solution in relation to EU anti-discrimination
countertypes due to its enumerative list, however, takes on a restrictive nature,
which has been criticized in the literature, since it is impossible to know in
145
See. art. 8 of directive 2000/43/EC implementing the principle of equal treatment of persons
irrespective of racial or ethnic origin, and art. 10 of directive 2000/78/EC establishing a general
framework for equal treatment in employment and occupation.
146
L. Florek [in:] Kodeks Pracy. Komentarz [The Labour Code. Commentary] ed. L. Florek.
4th Edition Warsaw 2005, p. 237 [in Polish].
147
Postanowienie Sądu Najwy szego [Decision of the Supreme Court] of 24 May 2005, II PK
33/05, Lex no. 184961 [in Polish]. See also Wyrok Sądu Najwy szego [Judgement of the
Supreme Court] of 15 September 2006, I PK 97/06, OSNP 2007, no. 17–18, it. 251 [in Polish].
Wyrok Sądu Najwy szego [Judgement of the Supreme Court] of 9 January 2007, II PK 180/06,
OSNP 2008, no. 3–4, it. 36 [in Polish].
148
Wyrok Sądu Najwy szego [Judgement of the Supreme Court] of 9 June 2006, III PK 30/06,
OSP 2008, no. 7–8, it. 82 [in Polish].
2 Antidiscrimination Law (Equality of Treatment)
85
advance all the situations in which an employer will reasonably be able to differentiate between the situation of employees.149
From art. 183b § 2 of The Labour Code it appears that events that do not constitute a violation of prohibition of discrimination are primarily those related to
the nature of an employee’s work and the employee themselves, whereas these
situations have long been recognized as legitimate criteria for differentiation
of an employee’s situation. The phrase contained in the provision “applying
means that differentiate the legal situation of an employee” means the application of provisions of law that differentiate this situation. These provisions do
not constitute discrimination in employment if their function is to protect an
employee.150
Art. 183a § 2 point 1 states that not employing an employee on one or more
grounds referred to in art. 183a § 1 of The Labour Code will not be a violation
of principles of equal treatment where the type of work or the conditions of its
performance mean that the characteristic or characteristics referred to in that
provision constitute a genuine and determining occupational requirement for
the employee.
Another exception to the prohibition of discrimination specified by the legislator takes place in the event of termination of an employee’s employment
conditions within the scope of working hours, if this is justified by reasons
which are not related to employees without invoking another characteristic
or characteristics listed in art. 183a §1 of The Labour Code. Then, despite the
existence of conditions of discrimination, the event will not be classified as
a prohibited differentiation of employees. In the above case, an employer may
be acquitted of the allegation of discrimination against employees, if they
prove that the change of the terms and conditions of an employment agreement or agreements in the section referring to working time was made for any
other reasons than those relating to the employees covered by the changing
termination.151
In art. 183b § 2 point 3 a violation of the principle of equal treatment was
also excluded in the situation when the goal of an action is to apply means
differentiating the legal situation of an employee in respect of the protection
of parenthood or disability. The above provision will primarily apply to the
protection of pregnant women. The nature of the protection of parenthood in
149
L. Mitrus, Wpływ regulacji wspólnotowych…, p. 199.
150
L. Florek, [in:] Prawo Pracy. Komentarz [The Labour Code. Commentary] ed. L. Florek, Warsaw 2011, p. 123 [in Polish].
151
K. K dziora, K. mieszek, Dyskryminacja i mobbing w zatrudnieniu [Discrimination and
mobbing in employment]. 2nd Edition. Warsaw 2010, p. 149 [in Polish].
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
the Polish labour law has been shaped in absolute terms. This means that an
employer despite the consent from a pregnant employee may not engage her to
perform works prohibited for this group of employees, and in the event of the
employer’s disregard for the prohibition, the employee may refuse to perform
work, which, because of her condition, is prohibited.
After 18 January 2009152 age alone cannot be an independent criterion of
differentiation an employee’s situation, it may, however, be a condition of
such differentiation if reflected in the length of service.153 Age may also lead
to legitimate differentiation of the situation of young employees.154 The provisions of The Labour Code do not qualify actions differentiating situations of
employees due to disability as a violation of the principle of equal treatment.
In art. 183b § 3 the legislator settled the issue of equal opportunities programmes, also referred to as positive discrimination. Under this provision, the
principle of equal treatment in employment is not violated by conduct undertaken for a certain period of time, aimed at creating equal opportunities for all
or a considerable number of employees distinguished by one or more grounds
referred to in the Code by reducing the actual inequalities for an advantage
of such employees to the extent determined in that provision. The equal opportunities programme introduced in Polish law seems to have a much wider
scope than the one stemming from the implemented directives. The Polish
legislator refers to all criteria included in the prohibition of discrimination,
whereas Community law does not require the introduction of such actions in
relation to employees employed for a definite period of time or part time. Also,
the admissibility of affirmative action with regard to the criterion of trade union
membership has been recognized as a mistake in the literature of labour law,
this feature characterizing employees is not covered by Community law. The
construct of positive discrimination adopted by the Polish legislator has been
described in the literature as too mechanical implementation.155
152
Ustawa z 21. 11. 2008 r. o zmianie ustawy – Kodeks pracy [Act of 21.11.2008 amending the
act – The Labour Code], Dz. U. [Journal of Laws] of 18 December 2008, no. 223, it. 1460 [in
Polish].
153
L. Florek, Kodeks pracy. Komentarz [The Labour Code. Commentary] ed. L. Florek. 6th Edition
Warsaw 2011, p. 125 [in Polish].
154
Pursuant to art. 6 of directive 2000/78/EC the Community legislator creates the possibility
for Member States to introduce differences in treatment within national legislation if they are
objectively and reasonably justified by a legitimate aim, including aims of employment policy,
labour market and vocational training, if the means of achieving that aim are appropriate and
necessary. The afore-mentioned legal status shifts the possibility of creating regulations, whose
application in practice will not be a violation of the principle of equal treatment, to Member
States.
155
L. Mitrus, Wpływ regulacji wspólnotowych…, p. 204.
2 Antidiscrimination Law (Equality of Treatment)
87
Also, the regulation prohibiting the differentiation of employees in respect
of religion or creed has been added to The Polish Labour Code. Under the influence of the last amendment of 2011 the provision has been made considerably
similar to art. 4, it. 2 of directive 2000/78. Initially, the Polish regulation was
limited only to employment in churches and religious associations. After the
amendment the provision also applies to organizations whose ethics is based
on religion. However, Polish law does not introduce the possibility of differentiating applicants in respect of views in institutions whose activity is based
on certain views. The legal regulation implemented in the Polish law order
should not nevertheless be regarded as a violation of the requirements of Community law. This is because Member States are competent to introduce certain
exceptions, they are not burdened with an obligation to provide solutions, in
accordance with which “views” constitute basic, legitimate and justified occupational requirement.156
2.4.6 Compensation of Discrimination
The implemented EU directives do not define the limits of compensation,
but only provide that Member States determine the sanctions, which may include compensation for victims of discrimination and must be effective, proportionate and preventive in their nature.157
Prior to the amendment the Code stated that a person in relation to whom
their employer has violated the principle of equal treatment between women
and men has the right to compensation of at least the amount of minimum
remuneration for work and the maximum of six times this remuneration. The
provision of 183d of The Labour Code in force since 2004 has resigned from
the upper limit of compensation. The amendment implemented results from the
case law of the Court of Justice, which has stated that the establishment of the
upper limit may preclude the effectiveness of compensation for the loss.158 The
scope of persons entitled to compensation has also changed. The new provision defines the sanction against employers infringing the principle of equal
treatment of employees differentiated by an employer on the basis of legally
prohibited criteria, but not only, as it was the case before the amendment, in
156
Ibid, p. 202.
157
L. Florek, Polskie prawo pracy a unijne standardy [Polish labour law and EU standards], Edukacja Prawnicza no. 1 (58), p. 24 [in Polish].
158
L. Florek [in:] Kodeks Pracy. Komentarz [The Labour Code. Commentary] ed. L. Florek.
4th Edition Warsaw 2005, p. 241 [in Polish].
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
respect of gender.159 Deletion of the upper limit of the amount of compensation
can be a source of fear of unreasonable demands. Therefore, it was noted in the
literature that in this situation, the amount of compensation should be related
to other compensations known to labour law.160 The Supreme Court confirmed
that the compensations provided for in art. 183d of The Labour Code should
be effective, proportionate and deterrent. Therefore, what must be taken into
consideration when determining their amount should be circumstances of both
parties to the employment relationship, especially as regards compensation
intended to redress an employee’s non-property damage, which – according to
the terminology adopted in Poland – is a remedy161 for harm.162
2.4.7 No Retaliation
Under the influence of the amendment to The Labour Code of 2001 the
provision of 183e was added. It included the prohibition of retaliatory actions in
relation to employees opposing discriminatory actions. Changes in the above
article were introduced with the amendment to The Labour Code of 2003, implemented in order to adapt national legislation to EU standards. As a result of
the implemented amendment the scope of employees benefiting from protection has changed. The provision in force since 2004 protects employees who
oppose discriminatory actions connected with violation in respect of them of
the principle of equal treatment in employment, and not, as was previously
the case, only with the violation of the principle of equal treatment between
men and women. Despite the extension by the Polish legislator of the scope of
protection to include employees in employment relationship, and not only those
differentiated based on gender, the Polish regulation differs from the norms
contained in EU directives to a large extent. This is because anti-discriminatory
directives provide for a much broader scope of protection for employees stating
that Member States shall introduce into their national legal systems measures
which are necessary to protect individuals from any adverse treatment or effects
159
A. M. wiątkowski, Kodeks pracy. Komentarz [The Labour Code. Commentary]. Volume 1,
Warsaw 2004, p. 121 [in Polish].
160
L. Florek, [in:] Prawo Pracy. Komentarz [The Labour Code. Commentary] ed. L. Florek, Warsaw 2011, p. 133 [in Polish].
161
The compensatory nature of damages is emphasized by the Supreme Court in its judgement
of 03. 04. 2008, where it was stressed that art. 183d of The Labour Code is in the first place to
compensate for the damage to a person and within that scope bears the character of specific
compensation for the harm suffered due to discrimination, II PK 286/07, Lex no. 465967.
162
Wyrok Sądu Najwy szego z dnia 7 stycznia 2009 r. [Judgement of the Supreme Court of 7 January 2009] III PK 43/08, OSNP, 2010, no. 13–14, it. 160 [in Polish].
2 Antidiscrimination Law (Equality of Treatment)
89
in reaction to a complaint or to taking action before the court with the intention of enforcing the principles of equal treatment. In the Polish law, however,
protection against retaliation is only limited to protection against termination by
an employer of the employment agreement or the termination without notice.163
The amended art. 183e of The Labour Code. Provides that the exercise by an
employee of their rights due to a violation of the principle of equal treatment in
employment may not constitute grounds for the termination of an employment
relationship by an employer, with or without notice.
Therefore the construct of protection adopted following the accession constitutes a faulty implementation of the anti-discrimination package. This is
because in comparison to the Community provisions it is too narrow and does
not provide an employee with adequate safety.164 The observed imperfection
in reference to the implementation was rectified with the amendment to The
Labour Code of 2008 aimed at the approximation of the laws of Member States
to the Community standards. The changes introduced were intended to clarify
the scope of protection in relation to an employee exercising their rights due
to a violation of the principle of equal treatment in employment. The exercise
by an employee of the above rights could be neither a reason for dismissal nor
the basis for another unfavourable treatment of the employee or the application
of unfavourable consequences to them.
The introduced changes have brought Polish model of protection against
retaliatory actions much closer to the one proposed in Community directives.
As a result of the amendment to art. 183e of The Labour Code the legislator
has also added § 2, pursuant to which the provisions of § 1 shall be properly
applied to an employee who has provided any form of support to an employee
exercising their right due to a violation of the principle of equal treatment in
employment. Through the expansion of the provision of § 2 the legislator grants
protection to an employee providing assistance to another employee exercising
their right due to a violation of the principle of equal treatment in employment.
The national regulation in force since 2009 meets the minimum Community
requirement both through the amended definition of prohibition of retaliatory
actions in relation to a direct victim of discrimination, as well as the addition
of a provision which also protects an employee, who has provided assistance
163
I. Boruta, Zakaz dyskryminacji w zatrudnieniu – nowa regulacja prawna [Prohibition of discrimination in employment – a new legal regulation], PiZS 2004, no. 2, p. 7 [in Polish].
164
J. Król, Nowelizacja kodeksu pracy…, p. 99.
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
of any form to another employee exercising their right due to a violation of the
principle of equal treatment in employment, against retaliation.165
2.4.8 Conclusions
The European integration requires a certain degree of harmonization (unification) of national legal systems, which also applies to labour law. This is
conducive to economic integration, especially the approximation of competition conditions, as well as the recognition of barriers to the free movement of
employees, both in terms of mobility, as well as providing them with partly
similar working conditions.166
The purpose of this study was to present the difficulties encountered by
the Polish legislator during the implementation of Community law. It must be
pointed out, however, that the nature of legislative procedures was often only
language-related and involved even closer adaptation of the Polish act to the
implemented directives. The changes presented perfectly showed difficulties
which the Polish legislator often had to confront in the implementation of
Community standards. To a large extent this is due to the necessity of correctly
translating legal standards into the language used in the legislation of a given
Member State. The difficulties also relate to the inclusion in legal standards of
such social phenomena as discrimination or mobbing. The resulting conceptual
differences can often lead to allegations of faulty implementation. It seems,
however, that the regulations on the prohibition of discrimination and equal
treatment of employees existing in the Polish law order in their current form
are in compliance with Community law.
2.5
Antidiscrimination Law in Slovakia
Rule of equal treatment and non-discrimination was transponded in the
Slovak legal system and is contained in the following legislation:
Constitution of the Slovak Republic as amended by constitutional laws.
Act no. 311/2001 Coll. Labour Code, as amended.
165
After K. K dziora, K. miszek, Dyskryminacja i mobbing w zatrudnieniu [Discrimination and
mobbing in employment]. 2nd Edition. Warsaw 2010, p. 61 [in Polish].
166
L. Florek, Europejskie prawo pracy [European labour law]. 4th edition, Warsaw 2010, p. 20
[in Polish].
2 Antidiscrimination Law (Equality of Treatment)
91
Act no. 365/2004 Coll. on Equal Treatment in Certain Areas and Protection
against Discrimination, amending and supplementing certain other acts
(Antidiscrimination Act), as amended.
Act no. 552/2003 Coll. on the performance of the public administration, as
amended.
Act no. 461/2003 Coll. on social insurance, as amended.
Act no. 124/2006 Coll. on Safety and health at work, as amended.
Act no. 125/2006 Coll. on Inspection work on amending and supplementing Act no. 82/2005 Coll. on Illegal Work and Illegal Employment Act, as
amended.
Act no. 5/2004 Coll. on employment services and on amendments to certain
laws.
Act no. 308/1991 Coll. on freedom of religion and the status of churches
and religious communities, as amended transcripts.
Act no. 99/1963 Coll. Code of Civil Procedure, as amended.
Act no. 301/2005 Z. Coll. on criminal proceedings (Criminal Code), as
amended.
Act no. 2/1991 Coll. on collective bargaining, as amended.
Act no. 575/2001 Coll. on the activities of the Government and the central
government, as amended.
Act no. 400/2009 Coll. on civil service and amending certain acts.
Labour Code is lex generalis in the field of labour relations, in case of the
principle of equal treatment, Anti-discrimination Act applies is subsidiary applied as lex specialis.
The Directives were into Slovak law implemented by the Anti-Discrimination Act. Although before the adoption of the Directives, in the labour law
existed a prohibition of discrimination based on sex, marital status, family
status, race, colour, language, age, disability, faith and religion, political or
other opinion, trade union activity, national or social origin, association with
a nationality or ethnic origin, property, birth or other status, but did not provide the level of protection against discrimination, as the rules adopted by the
implementation of the directives.
Although the concepts of direct discrimination, indirect discrimination,
harassment, sexual harassment, instruction to discriminate, equal pay for equal
work, burden of proof on the respondents, pay, occupational social security
schemes had not been taken literally in content are identical to the terms set
out in the Directives.
The content of the prohibition of direct discrimination is orders in relation
to an employer not treat one employee of unjustified reasons less favourably
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than other employees. According to § 2 Discrimination Act direct discrimination is an act or omission by which a person is treated, was treated or would
be treated as with another person in a comparable situation. Discrimination is
forbidden because there is no reason if they are disadvantageous consequences
tied to the forbidden character. The subjective component in intended meaning
of discrimination is not required. This is a situation where a certain person is
treated less favourably, been treated or would be treated as another person in
a comparable situation. This equally applies to all reasons for differential treatment. The disadvantage can also deal with omission. Discrimination lies also in
humiliation. For existence of discrimination is enough to create a sufficiently
concrete risk that such discrimination will occur. Just abstract Risk does not
fulfil facts of discrimination. Direct discrimination is considered a disadvantage
of sub-groups, a group with a particular protected character, sex-plus discrimination; because discrimination is cumulative dependent on sex and the next
character Guiding must be rather whether it is a sign of sub-group representative for disabled distinctive character.
According to § 2 of the Antidiscrimination Act indirect discrimination is
apparently neutral regulation, decision or practice that disadvantages a person
against another person. The indirect discrimination is not, when such regulation or practice is objectively justified by a legitimate aim and are appropriate
and necessary for achieving that aim. As indirect discrimination occurs when
a neutral legislation, policies, criteria and procedures specific handicap persons or groups of persons who have certain features in Directive in contrast to
other persons or groups of persons. The indirect discrimination shall be even if
different rules are applied to the same situations or if the same rule applies to
different situations and cannot be justified by objective differences respectively
purpose. This translates to non-discrimination and equal treatment, not only
unequal treatment by the employer.
Discrimination Act considers for harassment a behaviour which causes or
may cause formation of an intimidating, hostile, degrading, humiliating, dishonouring, humiliating or offensive environment and which purpose or effect
is or may be interference with freedom or dignity. The concept of harassment
is in terms of legal protection of the protected person at the same level as discrimination itself. Harassment respectively sexual harassment lays down by
the existing legal status only the Antidiscrimination Act. To fulfil the facts of
the harassment, the behaviour of the subject to recipient the undesirable and
unwanted, must be linked to any discriminatory reason. Form of harassment is
not decisive. Purpose or effect of such conduct is or may be interference with
freedom or dignity, or creating a possibility of creating an intimidating, hostile,
degrading, humiliating, dishonouring, humiliating or offensive environment.
2 Antidiscrimination Law (Equality of Treatment)
93
Under the provisions of § 2 of the Anti-discrimination Act sexual harassment is verbal, nonverbal or physical conduct of a sexual nature, which purpose
or effect is or may be violating the dignity of a person and which creates an
intimidating, degrading, humiliating, hostile or offensive environment.
According to § 2 paragraph 6 of the Antidiscrimination Act instruction
to discriminate is a procedure that is the misuse subordination of person for
the purpose of discriminating against a third party. It is not necessary that the
person giving the instruction was aware of his actions. This includes all cases,
without the need of fault. In order for the existence of discrimination does not
matter whether the person ordering the discrimination actually took place. This
does not mean that person is the ordering instructions – the employer – would
discriminate against a person filling instructions. The result in any case, is
the full responsibility of the person who uses a third party to discrimination.
Claims for damages may arise already when someone has entered an order to
disadvantage.
The reasons for non-discrimination are in Art. 1 of the Basic Principles
of the Labour Code as well as the in the Anti-Discrimination Act laid down
exhaustive calculations and in terms of its scope are luxuriously conceived in
contrast to the requirements arising from EU directives on equal treatment.
Because a statement of reasons of discrimination conceived Antidiscrimination
Act as an implicit, in fact, non-discrimination and respect of the above also applies to other reasons. On the other hand, the substantive scope of Art. 1 of the
Basic Principles of the Labour Code applies only to the right to work, the right
to free choice of employment, righteous and favourable conditions of work
and the right to protection against unemployment. Therefore, the prohibition
of discrimination and discriminatory reasons with demonstrative calculation
goes towards meeting the social rights under the Labor Code. Material scope
of discriminatory grounds under the Antidiscrimination Act in relation to Article 1 of the Labour Code is considerably wider. Conceptually logical definition of certain grounds of discrimination in Article 1 of the Basic Principles
of the Labour Code does not define like Antidiscrimination Act. Article 1 of
the Basic Principles of Labour Code, as opposed to the Antidiscrimination Act
does not contain discriminate reason consisting in a different sexual orientation
and on the other hand, Art. 1 of the Basic Principles of the Labour Code over
the content framework the Antidiscrimination Act expressly provides for the
prohibition of discrimination on grounds of trade union activities and assets.
Both those sources are counting on the prohibition of discrimination on the
basis of other status.
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
Article 1 of the Basic Principles of the Labour Code as well as the Antidiscrimination Act creates a relatively broad legal basis for different treatment just
because of race or ethnicity but also because of age, health, faith and religion,
as well as the for other reasons. Exceptions to the principle of equal treatment
must pursue a legitimate respectively legitimate aim. For an objective and
reasonable justification is considered reasoning pursued legitimate aim and
respects the principle of proportionality between the means employed and the
intended target.
For the exceptions of indirect discrimination should be a statistically defined, identifiable group (for example economically justifiable reasons for labour or emergency situation on the labour market, the need for part-time work
because of improved flexibility of the employment relationship). The objective
criterion must not be discriminatory in itself, should be exempt from the per
definitionen discrimination.
For court reviewing of eligibility derogations from the principle of equal
treatment national court examines the consistency between the objectives of
the aim pursued by the employer and applied means of differential treatment. It
requires the existence of a causal relationship between reason of the applicable
exemptions and its aim. Examination of the causal relationship between the
reasons for the exemption applied it aim should bring a judge, to determine
whether the objective could not be achieved by other means, which do not
affect fundamental rights.
According to § 9 of the Antidiscrimination Act everyone has the right to
equal treatment and protection against discrimination and everyone can claim
his rights before the court, if it considers that there is or has been affected in
their rights, legally protected interests or freedoms because the principle of
equal treatment.
Regarding procedural guarantees observance of the principle of equal treatment is problematic requirement of fair access to judicial enforcement of rights
under those directives to all persons who consider themselves wronged by
failure to apply the principle of equal treatment, even after termination of the
legal relationship, during which the discrimination occurred.
Formulation of a procedural guarantee observance of the principle of equal
treatment, even after the end of the relationship in which the discrimination was
occurred is in fact not translated into the Antidiscrimination Act. In the event
of litigation should preferably follow the judge of Community law.
2 Antidiscrimination Law (Equality of Treatment)
95
According to § 9 of Antidiscrimination Act, the authorized person may, in
particular seek to:
a) been abandoned that action, if possible,
b) remedied the unlawful situation, or
c) to provide appropriate satisfaction.
A proceeding concerning the violation of the principle of equal treatment is
initiated at the request of the injured party. In the action the injured party should
indicate the person, about which claims that violated the principle of equal
treatment, should provide evidence to Court from which it may be presumed
that there was a breach of the principle of equal treatment, and possibly suggest
to Court how to remove the effects of the unlawful conduct of the defendant.
Culpability of the defendant (employer) does not when considering the problem before a court of law meaning. On the other hand givenness culpability of
the employer may be reflected in the amount the court granted non-pecuniary
damage.
The right to claim, to refrain from such conduct, if possible, is possible
only if such action would still lasts at least as a threat to the future in the form
of repetition. Even assuming that there is not in all cases it will be possible to
seek to refrain from such conduct. It mainly concerns the situation where such
a procedure only takes in form of repeated threats, and thus Antidiscrimination
Act does not address.
Application for abandonment of the anti-discrimination observance should
include information about what the applicant seeks with such a degree of certainty, on the basis of a decision adopted by the court was possible his performance, i.e. plaintiff in the action should indicate what specific procedure to
be the respondent to refrain from (§ 79 paragraph 1 Code of Civil Procedure).
The right to remedy the unlawful condition, i.e. to eliminate the consequences of the infringement, plaintiff has under § 80 letter b) Code of Civil
Procedure to seek by an action for fulfilment. In application should plaintiff
state way of removing the consequences of misconduct, of course, assuming that the consequences of the infringement still outstanding, although the
infringement itself no longer exists. The court considered the adequacy of the
proposed method of disposal effects, and should take into account the possibility of execution.
If the applicant requests a reasonable satisfaction, in application should indicate precisely what satisfaction demands (e.g. text of justification). Problems
could occur in a situation where the court considered the proposed satisfaction for inappropriate when the court is bound by head of claim and cannot be
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granted other satisfaction in comparison to which the plaintiff seeks, even if it
could be considered adequate.
If the beneficiary is prejudice to his rights by violation of the principle of
equal treatment, of course, it will demand that the person violating the principle
of equal treatment, refrain from such conduct and, where possible, rectify the
illegal situation.
From literal wording of § 9paragraph 2 Antidiscrimination Act indicates
that if the defendant refrain from his action and correct the unlawful condition,
provision of an adequate satisfaction, which is indicated by the word “or” is
not appropriate. While in remedy the unlawful condition, depending on the
character and nature of the violation of the principle of equal treatment does
not always understand the appropriate compensation to which the injured person may depend is considerably over in proceedings irregular situation. It is
difficult for the judicial practice to deal with this problem.
Only if appropriate compensation it would not sufficient, especially if the
failure to observe the principle of equal treatment has considerably diminished
dignity, social status or social functioning of the victim, according to the AntiDiscrimination Act appropriate substitute non-pecuniary damage which the
upper limit himself Act does not provides.
Breach of the principle of equal treatment in the Act from various reasons,
mentioned should not be associated only with the subjective feeling of the
dignity of damage, i.e. solely with the victim’s emotional reaction, but also
objectively, as if the intensity of the adverse effect, for example consisting in
the reduction of the dignity of each person usually felt.
Reimbursement of non-pecuniary damage by the Antidiscrimination Act
comes into consideration if appropriate compensation it would not be sufficient.
The amount of reimbursement of non-pecuniary damages does not provide
Antidiscrimination Act. It will be determined by the court with regard to the
seriousness of non-pecuniary damage and all the circumstances under which it
was incurred. Seriousness of damage should be considered especially in terms
of intensity and duration of the adverse effect in reducing acts of dignity, with
regard to the authorized person (employee), as well as all other circumstances.
Despite the fact that the § 9, paragraph 3 of the Antidiscrimination Act
quite clearly indicates that only from the court will depend acknowledgment
for non-pecuniary damages, the upper limit of which is not laid down by law,
seems that the legislator in this provision directed the a judge incorrectly that
the non-pecuniary harm that should rule especially in situations where was
considerably impaired the dignity of the victim, respectively that the property
takes the judge to decide at a stage where it finds that adequate satisfaction is
not sufficient.
2 Antidiscrimination Law (Equality of Treatment)
97
Legal construction of § 9 of the Anti-Discrimination Act in the light the
requirements of previous ECJ ruling has not an deterrent effect of sanctions in
case of violation of the principle of equal treatment requires ECJ.
Assessment of the intensity of the legal consequences of breach of the
principle of equal treatment, in particular the legal qualification of significantly
reducing the dignity of the victim, the seriousness of the social or social position, and remains in the courts, which in practice may cause results in highly
differentiated decision of the courts.
If the discriminatory actions of the defendant (e.g., employer) were occurred
to the authorized participant also material injury or unjustified enrichment, by
the Anti-Discrimination Act does not prejudice the rights of the authorized
person for damages or unjust enrichment.
Many government institutions often do not create any provisions or public
policies to ensure effective implementation of the right to equality and nondiscrimination, and even with their creation or in the future doesn’t count.
They have not committed any funds or personal capacities. In the event that
measures or public policy is created, and are not put into practice, or only partly,
what causes that they have a close to zero effect and the impact on the target
group, respectively the target group should particular impact their absence,
thus missing the prevention of discrimination. One of the biggest barriers that
can be seen, is insufficient or no communication between institutions, which
should closely cooperate in the development of public policies and to involve
the largest possible number of entities, whether public authorities, but also by
non-governmental or other organizations.
It is possible to discern disinterest of key public institutions which have
responsibilities in the area of anti-discrimination. Implementation of the principle of equality and equal treatment is not considered as a priority, what is
mainly related to the fact that for this issue is not allocated sufficient resources
and that staff do not attend public institutions education in this field (sufficient
or even none at all). Also is missing any systematic research, but also depth
ongoing monitoring and evaluation of situations the related with problems
and possible solutions, such as evaluation of projects/programs this area are
made. Very weak link is also between public institutions and public authorities
themselves, as well communication with other organizations at various levels
of management and links to NGOs. NGOs could share both their experiences
in dealing with such problems, offer long-term partnership, but they can also
provide a quality education, consultation, or materials.
From foregoing factors results also the absence of systematic and long-term
measures, such as public policies to promote equality and non-discrimination.
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Whether to this topic institution pay attention very often depends mainly on the
people who were there at the time works and are tilted to these topics.
Public institutions are not taken seriously of the Antidiscrimination provisions Act, which states that the principle of equal treatment is also taking
measures to protect against discrimination. By not acting in this case, however,
violate these provisions. Prevention should provide primarily state and its institutions, and taking initiative and actively designing and creating adequate tools
and mechanisms for promoting public policy in this area. The initiative often
remains on NGOs which have substitute the obligation of public authorities
but without them for this purpose have been provided with adequate resources
and mechanisms are that they can get.
Such entity is the Slovak National Centre for Human Rights, which was
established by Act No. 308/1993 Coll. of the establishment of the Slovak National Centre for Human Rights. The role of the Centre is a comprehensive
participation in the field of human rights and fundamental freedoms, including
the rights of the child.
To fulfil the basic tasks of the Centre focuses its activities on the following
main areas:
a) monitors and evaluates the human rights and the principle of equal treatment
under of the Antidiscrimination Act,
b) collects and at request provides information on racism, xenophobia and
anti-Semitism in Slovakia,
c) conducts research and surveys for the provision information on human
rights and fundamental freedoms, including the rights of the child, collects
and disseminate information in this field,
d) develops educational activities and participates in information campaigns
aimed at increasing tolerance of society,
e) provides legal assistance to victims of discrimination and intolerance,
f) issues at the request of individuals or legal entities, or on its own initiative,
expert opinions concerning observance of the principle of equal treatment
under of the Antidiscrimination Act,
g) provides library services and
h) provides services in the field of human rights.
The Centre is engaged in providing of legal advice in matters of discrimination, in statements of intolerance and in cases of violation of the principle of
equal treatment for all citizens of the Slovak Republic and is also authorized
by law at request represent parties in proceedings concerning infringement of
2 Antidiscrimination Law (Equality of Treatment)
99
the principle of equal treatment. The Centre issues annual report on human
rights in the Slovak Republic. On the Centre can turn any natural or legal
person who feels discriminated against actions or omission of institutions. It
is necessary that when submitting the complaint the complainant fill all the
necessary details and submit all relevant documentation related. The Centre
has the following competences:
a) providing legal assistance to victims of discrimination and intolerance,
b) representation by power of attorney in proceedings concerning infringement
of the principle of equal treatment,
c) right to request from the courts, prosecution, other public authorities, local
governments, special interest bodies and other institutions within a specified
period to provide information on human rights.
In our opinion, however, does not perform his work adequately.
2.6
Conclusion
The legal basis for anti-discrimination laws based in EU primary law. This
is particularly the Article 157 the Treaty on The Functioning of the European
Union (ex Article 141 TEC), which prohibits wage discrimination by gender
for work. Article 45 of the Treaty stipulates from four freedoms on which the
European Union also freedom of movement of workers. Article 18 of the Treaty
(ex Article 12 TEC) prohibits discrimination on grounds of nationality. Specific EU competence brought treaty Amsterdam Treaty in1997, when docked
competence of the Union in Article 13 of the EC Treaty (now Article 19. 1 of
the Treaty), which makes the Council on a proposal from the Commission
may, after hearing the Parliament to adopt measures to combat discrimination
on grounds of sex, race or ethnic origin, religion or belief, disability, age or
sexual orientation.
The principle of equal treatment is in EU law considered as general and
central principle of primary law, from which is derived secondary legislation.
In the general European professional public, anti-discrimination law is called as
a “favourite child” of European Union law. Spite of its highly dynamic evolution of EU anti-discrimination law is lagging more than half a century behind
the development of anti-discrimination laws of the United States, where already
in 1940 adopted the prohibition of discrimination on grounds of race, colour,
religion. Prohibition of discrimination on grounds of sex and faith was first
across the USA already enshrined in 1964 and the prohibition of discrimina-
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tion on grounds of age in 1967. As can be seen from also numerous law courts,
the U.S. played in pioneering role the field of anti-discrimination law. From
obtained rich experience of American courts has drawn in part and the case
law of the Court of Justice of the EU.
Of up to an entire generation later the European Union began to pay primary
attention to the principle of equal treatment, as evidenced by numerous EU
Directives and the case law of the Court of Justice of the EU. The principle of
equal treatment has become under the influence of primary law as well as ongoing case law of the Court of Justice of the EU one of the fundamental rights of
the European Union, enshrined in also Charter of Fundamental Rights – part
of the Lisbon Treaty.
Despite the high attention which EU dedicated to issues of non-discrimination, in theory and practice, particularly in application the prohibition of
discrimination and full application of the principle of equal treatment has still
many reserves. Because of the low law enforcement, nor exemplary violations
of the prohibition of discrimination do not have their plaintiff. The difficult
situation are particularly employees in employment relations which for fear of
losing their jobs not to sue in court nor more serious breach of the prohibition
of discrimination in employment relationships. On the other hand, if the even
action were, or could have been numerous, now would probably cornered also
judicial practice due to lack of necessary technical information for correct
identification of elementary concepts, such as direct or indirect discrimination,
instruction to discrimination, harassment or sexual harassment.
Directives issued at the beginning of the third millennium for the first time
defined the concept of indirect discrimination. Despite the definition of these
elementary concepts in secondary EU law in legal theory even practical application there are still problems with the interpretation of the definition, which
is directly linked basic human right, the prohibition of discrimination. Proper
definition of these basic concepts is also necessary for the judicial practice EU
Member States, as national courts of the Member States are entitled to decide
on actions for breach of non-discrimination.
More clarity in definition of content direct discrimination and indirect discrimination has brought the current extensive case law of the Court of Justice
of the EU in recent years. Judicial practice quite rightly expected in particular
the legal interpretation of the prohibition of discrimination in relation to the
discriminatory character age, sexual orientation, disability, race, ethnicity, religion and belief. The decision making activity of the Court of Justice of the EU
shows that correct identification of the legal existence of direct or indirect
discrimination is not a simple. This is even truer of the concept of harassment,
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101
sexual harassment and instruction to discrimination directive which explicitly
considered discrimination.
The correct content definition of direct discrimination, indirect discrimination, harassment, sexual harassment and instruction to discriminate are currently all the more significant that in application practice increases the number
of violations of the prohibition of discrimination, not only on grounds of sex
but even for other reasons.
Even though the principle of equal treatment has by gender is part of EU
primary law for decades and the EU through numerous directives pays particular attention to the prohibition of discrimination based on sex, in practice
there are still unjustified differences in the status of women and men across
the width of the working life. This is manifested not only in remuneration
for work, but particularly in access to employment. Employers are concerned
mainly the employment of women – mothers of minor children and denial of
access to employment conceal other reasons unrelated to discrimination against
women. If in application practice occurs a clear departure from the principle
of equal treatment between men and women in working life, to litigation in
these serious Causes of there, because there is no plaintiff. That negative trend
supports even current relatively high level of unemployment, which creates
legitimate concerns of job losses and hence reduced the courage to litigation
because of discrimination not only on sex but even because of other discriminatory features.
Within the employment relationships also occur in cases of discrimination against employees based on age. When applying of labour law, occurs to
a range of practical problems that the legal status of de lege lata does not provide clear answers. For instance, the problem of legal propriety of establishing
a general maximum age for the “automatic” termination of employment or the
frequent practice of employers for recruitment into employment would most
like picking out just younger job seekers. Within the duration of the employment relationship problem to the principle of equal treatment based on age is
particularly acute in the area of remuneration for work, for example in raising
wages, depending on years of service, the provision of higher severance of employment of older workers, as well as the problem of varying the notice period
depending employee’s age or depending on of employment with the employer.
Wide legal framework for the possibility of derogations from the principle
of equal treatment on grounds of age in the next few years may bring about also
for labour law fundamental change to the detriment of employees at retirement
age. Imminent risk of social exclusion due to unemployment, which threatens
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in the broad framework of also for younger age of employees, creates all legal
prerequisites to enable the possibility of formulating legitimate exceptions to
the prohibition of discrimination on grounds of age were used in law as one of
the legitimate aims of state social policy.
On the other hand, we believe that this very generously conceived model
of exceptions to the prohibition of discrimination not only by age but also for
other reasons laid down in the Framework Directive in effect in practice will
complain following the basic objective, combating all forms of discrimination.
Particular legal structure derogations from the general principle of equal treatment on economic grounds aimed only at the economic interests of employers and their competitiveness in the future will allow systematic exceptions
throughout the European Union.
Although the definition of age is at first sight much easier and includes the
time from birth to death, for the purposes of the definition of discrimination
is a difficult problem because age is subject to constant change. Framework
Directive covers not only the prohibition of discrimination in later life (maximum age limits) but also establishes a minimum age limits, thus prohibiting
discrimination against older employees and younger employees.
Even though it can be said that the adoption of the anti discrimination act
has been a significant contribution in the area of employment relations. This
legislation started off the process of making other key changes soon to be
made in the relevant legislation. The fact that the principle of equal treatment
has been enshrined in the new regulation makes the current legal regulation
better arranged and structured. The position of the victims of discrimination is
also better due to the institute of shifting of burden of proof on the defendant
as the victims are in a much better position when seeking their rights. Without
these changes made recently, such discrimination cases would be practically
unsolvable.
The courts often do not solve cases of discrimination, which can be put
down to relatively poor knowledge of those involved as the society is not familiar with the possible solutions of such cases through courts. It can also be
attributed to the fact that the victims often prefer out-of-court settlement as
they are afraid of large sums of money that have to be paid in cases when the
victims lose the case.
Next it should be said that the current legislation still lacks an effective
means through which the discriminatory behaviour could be proved. Last but
not least it is vital to point out the fact that in some cases an action against the
breach of protection of a person under the Civil Code is very often filed instead
of an action against discrimination.
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103
Based on the practice of courts outlined above it can be said that there are
a few problems as far as the decision making process of the national courts is
concerned. It is the shifting of the burden of proof which seems to be causing
the greatest inconvenience as the courts have failed to apply and interpret this
institute correctly. This logically results in many cases being lost by the victims of discrimination. A factor which also plays an important role is the fact
that many judges still follow a stereotype way of decision making as far as the
traditional concept of the burden of proof is concerned.
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3
Atypical employment relationships
3.1
Introduction
Prior to the transformation in the countries of present Visegrád 4, almost
90% of employees had “traditional” fix-term labour contracts. However, the
rate of atypical ones was negligible in relation to the employment ratios of the
national economy. Thus, their application was not widespread due to the lack
of the necessary legal background.
The situation changed significantly after the transition to market economy.
Both employers and employees gave up the former attitude. Prior to the transition, traditional employment meant safety for the employee. One of the disadvantages of the atypical forms of employment is that the employer’s interest is
at the focus and is often in contradiction to the interest of the employee, which
leads to a more uncertain situation for employees. The appearance and spread
of atypical forms of employment was caused by the different environmental
conditions. That is, a brand new form of enterprises and mass unemployment
appeared and new tax categories were introduced. As with everything that
is new or innovative, a strong repugnance initially arose; however, later the
advantages and application conditions were discovered. The appearance of
atypical work was accompanied by the formation of the legal background and
its adaption to the European trends, which was even more affected by the act
of joining the European Union in 2004.167
Atypical employment relations have been created as a necessity, in order
to decrease unemployment, reduce work related costs, meet new expectations,
and thus realize more efficient production processes. The great advantage of
atypical employment is the potential to increase the efficiency of the workforce.
Traditional employment for an unlimited time is replaced by fixed-duration
employment; the utilization of working hours becomes more flexible; working
without employment comes into focus; part-time employment becomes more
wide spread than full-time employment; and, as a result, the rate of atypical
employment increases.
Within the European Union, laws about atypical employment were created
after the definition of generally accepted regulatory directives. The regulation
167
K. Lipták: Is atypical typical? – atypical employment in Central Eastern European countries,
published: http://www.emecon.eu/current-issue/second/liptak-katalin/, read 30. 4. 2013.
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
principally defines the minimum standards of atypical employment providing
frames and limits to its application. The aim of the regulation is the protection
of the employee. Laws have to guarantee the volunteership of establishing
atypical labour relations.168 Even two documents of the EU explicitly address
telework. One is the “White Book” of 1993, while the other is the so called
Bangemann-report with the title of “Europe and the global information society”.
Directives have recently been created on part-time and fixed-duration employment (Directive 97/81/EC on part-time work and Directive 99/70/EC on fixterm work). Some questions about temporary employment are included in the
Directives 91/383/EEC and 96/71/EC, while the category of self-employment is
regulated with respect to equality of men and women (Directive 86/613/EEC).
The regulation of atypical forms of employment in the EU has been a long
and politically significant question. The first experiment was made in January
1982 when part-time employment was regulated by a directive. The proposals
were reframed several times and, in 1983, were finally taken off the agenda.
The first directives were created some 20 years ago as well as several unsuccessful and successful legal sources. The uniform regulation was made
more difficult by the fact that member states have different economic and legal
backgrounds and regulations. This remains a problem until today.
3.2
Atypical employment relationship
in the Czech Republic
3.2.1 Introduction
The most common and legally preferred form of a performance of dependant work is the performance of work in the full-time employment for an
indefinite period. The Labour Code, however, counts with other possibilities
of work in so-called atypical employment relationships, including fixed-term
employment, part-time employment, home-based work and telework as well
as employment concluded with a temporary employment agency.
These atypical employment contracts, until recent days considered as modern and flexible forms of employment, but at the moment, which is characterized by ever increasing unemployment, by economic crisis and fear of
employers to hire workers in the classic employment, are already lagging behind the needs of the labour market, and therefore, in order to maintain, re-
168
A. Hertel: Atipikus foglalkoztatási formák Magyarországon. E-tudomány 3 (2):17.
3 Atypical employment relationships
107
spectively, increase employment levels it is necessary to look for other possible
forms of performance of paid work.
The European Union has recently developed a concept of flexicurity within which it is necessary to pay attention to the possibility of concluding the
so-called atypical employment contracts. These are for example temporary
employment, part-time employment, casual work, agency work, home-based
work and telework.
The Labour Code is a key source for labour relations in the private sector
and therefore the essential provisions of Directive 97/81, Directive 1999/70,
and Directive 2008/104 were transposed to the Labour Code. Gradual harmonization of the Czech labour law with the EU labour law took place even before
the accession of the Czech Republic into the EU in 2004. Regarding plant
collective agreements and collective agreements of high level (which are binding only for the contractual parties, usually at the level of certain branch of
economy, not for the whole territory of the Czech Republic), they – due to their
mandatory character – provide only partly issues related to atypical labour relations that must be in accordance with the statutory labour law. The legislation
of atypical employment relationships changes rather frequently (e.g. the enshrinement in law of the duration and options for prolongation of the contracts
of fixed-term employment changes every 2–3 years).
Atypical employment relationships are based either on employment contracts or one of two possible kinds of contracts on work performed outside the
employment – the agreement on performance of work and the agreement on
work activity.
According to the Article 34/4 of the Labour Code, the employment is
established under a written employment contract between the employer and
employee. The written form is obligatory with a sanction of a relative nullity
under the Article 20 of the Labour Code. Void form can be convalided later.
Vitiating factors regarding the void form can be objected not later than before
one or both parties begin to perform their rights and duties.
The employer has to come to an agreement with the employee in the employment contract on the following essential elements: type of work, place
of work, date of commencement of work. Such content is obligatory under
a sanction of invalidity under the Article 19 of the Labour Code.
In addition to important content requirements, the employer is obliged to
state also other working conditions, and these are the deadline to pay, working
hours, paid leave and the length of the notice period. If these conditions are
set out in the collective agreement, it is sufficient to include a reference to the
relevant provisions of the collective agreement in the employment contract.
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Agreement on probation is a frequent and regular content requirement of
the employment contract and it must be concluded in writing under the sanction of nullity.
The employer and employee may agree in the contract on various conditions for the performance of paid work within the dispositive labour standards,
e.g. consent to posting the employee on business trip, other tangible benefits.
The general and most preferred form of performing dependant work is the
performance of work in the classic, typical employment relationship, i.e. in
employment for an indefinite period of time and at full time.
3.2.2 Part-time work
In the Czech Republic the legislation on part-time employment is based in
the provision of the Article 80 of the Labour Code. The employee, who performs a part-time work, is entitled to receive a salary equivalent to the agreed
reduced working time. That provision is related also with the provision of the
Article 111 of the Labour Code, governing the remuneration conditions. Under
that provision, the employer must provide each employee a wage equivalent
to at least the minimum wage determined for certain degree of difficulty of
the work, if the remuneration conditions are not provided for in the collective
agreement.
The principle of equal treatment is enshrined in the Article 110 of the Labour Code, under which an employee working part-time shall not be limited or
disadvantaged in comparison to employees working on the established weekly
working time.
The Clause 2 of the Directive 97/81 enables the Member States, after consultation with the social partners and/or the social partners in accordance with
national standards for objective reasons, to totally or partially exclude the employees on part-time working as casual employees from the appliance of this
Directive (i.e. the principle of non-discrimination is suspended in such case).
The Czech labour law does not recognize the concept of casual work and
therefore the Czech Republic did not apply the exception resulting from the
Clause 2 Paragraph 2 of the Directive 97/81.
3.2.3 Fixed-term work
The Article 39 of the Labour Code establishes conditions, under which conclusion of the employment relationship for a definite time is possible. Where the
employer has agreed a fixed-term employment relationship with an employee
without the conditions under the Article 39 having been fulfilled, and where
3 Atypical employment relationships
109
the employee has informed his employer prior to the expiry of the agreed term
that he or she insists on being further employed by the employer, it shall apply
that this employment relationship shall be regarded as an employment relationship for an indefinite period (open-end employment relationship). Within two
months from the day when the employment relationship would have terminated
on the expiry of the agreed term, both employer or employee may file a petition with the court to determine whether the conditions under Article 39 have
(not) been fulfilled.
The employment contract for definite time must be concluded in writing
and must include an explicit indication of the duration of the employment
relationship; otherwise the employment relationship has been agreed for an
indefinite time.
The employment for definite time can be agreed for a maximum of three
years. The employment for definite time may be extended or renewed within
three years, up to three times. Some interpreters of Article 39 come to a conclusion the employment for definite time can be agreed for a maximum of nine
years. The employment for definite time may be extended or renewed within
nine years, up to three times – always obeying the limit of duration of 3 years
each. Both grammatical interpretations are possible, the case-law is none, yet,
therefore the present situation is rather uncertain.
The present Labour Code does not count with objective reasons justifying
the renewal of contracts, but it is likely that by the end of 2013 the Parliament
passes the bill to amend Article 39 with objective reasons regarding serious
operational reasons and substituting of a temporarily absent employee.
A repeatedly agreed employment relationship for definite time is such an
employment relationship that is to be created prior to expiry of 3 years after
expiry of the previous employment relationship for definite time, between the
same participants.
The European Commission requested the Czech Republic in 2010 to review
its legislation to protect employees against abusive renewals of fixed-term
contracts in order to fully comply with the requirements of the Directive on
fixed-term work. Teaching and research staff (academics) at universities as well
as workers in receipt a pension were excluded from the scope of the Czech
Republic’s current legislation, leaving them with no protection against such
abusive practices. The Directive requires member states to ensure that when
an employer makes permanent vacancies available, fixed-term staff must be
informed. The relevant rules in the Czech Republic only provide for indirect
communication through the works council, and there is no provision for informing fixed-term staff directly. This problem is particularly acute in small
undertakings, where no works council exists. The request takes the form of
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a “reasoned opinion” under EU infringement procedures. The Czech Republic
took necessary measures to fully implement the Directive to avoid the Commission to refer Luxembourg to the EU’s Court of Justice – completely cancelled
Article 70/4 of he University Act which previously excluded academics from
the protection against fixed-term employment abuse in the Labour Code. Similar step were taken regarding workers in receipt a pension.
The Labour Code guarantees a continuance of employment via transformation the fixed-term contract to one with indefinite duration in case the employee
worked for at least one extra day following the expiry of the original term with
the knowledge of his/her immediate superior (Article 65).
3.2.4 Agency work
The statutory definition of agency work is contained in the Labour Code
and the Emplyoment Act. The Labour Code also classifies as “dependent work”
cases where employers, in accordance with a permit issued pursuant to a special
legal regulation (the Emplyoment Act), temporarily allocate their employees
to perform work for another employer based on arrangements in an employment contract or agreement on work activity. The employment agency makes
a written commitment to arrange for the employee temporary work at another
employer (Czech law uses the term “user”) and the employee undertakes to
do this work according to the user’s instructions. Under the act on employment, temporary agency work means the conclusion of an employment relation
or agreement on work activity between a natural person and an employment
agency for the purpose of the performance of work at a user. The employment
agency may temporarily allocate its employees to work for users solely on
the basis of a written agreement on the temporary allocation of the employee
concluded with the user pursuant to a special legal regulation.
The basic defining features of an agency worker stem from the aforementioned legal definition of agency work (a person who has signed an employment
contract or agreement on work activity with a work agency and who performs
work at a user).
Under the Employment Act user means a legal or natural person that allocates work to the agency worker and supervises his performance of the work.
The Labour Code specifies that the extent of agency work can only be
restricted in a collective agreement concluded with the user. It is a reasonable
estimate (data are not available) that collective bargaining and collective agreements do not play a major role in agency work in the Czech Republic.
3 Atypical employment relationships
111
By contrast, the role of self-regulation is considerable, exercised through
a joint organisation founded by the four largest work agencies. The Association of Providers of Personnel Services (Asociace poskytovatel personálních
služeb, APPS) was founded in 2002. It is a professional organization of personnel agencies and consulting firms in the field of the provision of personnel
services. It supports the professional development of its members, promotes
personnel consultancy services, provides its members with information and
consultancy services etc.
The Labour Code provides that a work agency may not temporarily allocate
one and the same employee to work at the same user for a period longer than
12 consecutive calendar months. This restriction does not apply to cases where
this takes place at the request of the agency worker or if the work is being
performed for a particular period of time to replace a female employee of the
user who is on maternity or parental leave or for a male employee of the user
who is taking parental leave.
Agency workers tend to be employed for a definite period. In this context
the act on employment provides that the restrictions imposed by the article
39 of the Labour Code on the conclusion of employment relations for a fixed
period do not apply to agency workers. Work agencies can thus conclude an
employment relation with these workers for a fixed period without any restrictions, i.e. including repeated contracts.
Under the Employment Act, the government may issue a regulation defining
the kinds of work that work agencies cannot temporarily allocate (there are no
reasons for any such restrictions in view of the low unemployment).
Work agencies may temporarily allocate their employees to perform work at
another employer solely on the basis of written arrangements in an employment
contract or agreement on work activity in which the work agency undertakes to
allocate its employee to perform temporary work under an employment contract
or agreement on work activity at another employer (the user) and the employee
undertakes to perform such work according to the user’s instructions and on
the basis of an agreement on the temporary allocation of the work agency’s
employee concluded between the work agency and the user.
The work agency allocates its employee to the user on the basis of a written instruction specifying, among other matters, the duration of the temporary
allocation, the conditions for unilaterally declaring the work terminated before
the temporary allocation period ends if these conditions are provided for in the
agreement on the temporary allocation of the work agency employee, information about the working conditions and pay terms of the user’s comparable em-
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ployee etc. The kind of work the temporary worker will perform and the place
of work must be specified in the temporary worker’s employment contract.
The temporary allocation ends upon the elapse of the period for which it
was agreed; before the end of such period it may be terminated by agreement
between work agency and temporary worker or by a unilateral declaration by
the user or temporary worker according to the conditions set out in the agreement on the temporary allocation of the agency worker.
The basic condition for agency employment is the Czech Labour Code’s
requirement that the work agency and the user must ensure that the temporary
worker’s work and pay conditions are not worse than a comparable employee
enjoys or would enjoy. Comparable employee here means an employee of the
user who performs or would perform (if the user’s employees performed such
work) the same work as the temporary worker, making allowance for qualifications and length of work experience. If at any time during the performance of
work for the user the temporary worker’s working or pay conditions are worse,
the work agency is obliged to ensure equal treatment when so requested by the
temporary worker or without such request if it finds out about it another way.
The temporary worker has the right to demand that the work agency ensures
his entitlements are satisfied. Consequently, the agency could have to pay any
outstanding claims of its employee. In this way the act prevents labour market
dumping and transposes the principle of employees’ equality of working conditions into the hiring of labour. As far as comparable working conditions are
concerned, this concept is not defined by the act and various legal interpretations are possible. For example, in the narrower sense working conditions can
be understood to be conditions required by the labour regulations, so these
may include superior labour-law entitlements specified in a collective agreement or employer’s internal regulation (leave extended by a further week or
weeks or days on more advantageous terms than the legally defined working
leave, shorter hours without any reduction in pay, or also advantageous works
catering etc.). Although collective agreements with the user and the user’s
internal regulations do not directly apply to agency workers, under this legal
interpretation these documents indirectly shape these employees’ level of pay
and other working conditions. In line with this legal opinion and with a view
to precluding interpretation uncertainties there have been recommendations
that the law should specify that collective agreements, both enterprise level
and higher, that cover a user are also binding for agency workers temporarily
allocated to that user.
As regards the conditions of sickness and pension insurance (as defined by
the law), these are the same for agency workers and core staff (employees in
a standard employment relation).
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113
The conditions for starting an agency are specified in the Employment
Act. Mediating employment can be done only with an employment mediation
licence issued by the Ministry of Labour and Social Affairs (Ministerstvo práce
a sociálních v cí ČR, MPSV ČR) based on an application by a legal or natural
person. To receive a licence a natural person must be at least 23, competent to
perform acts in law, unimpeachable and professionally competent, and must be
resident in the Czech Republic. The licence is issued for a maximum period of
3 years (licences can be issued repeatedly, again upon application).
If the legal or natural person ceases to satisfy the conditions for award of
the licence as specified in the act on employment or mediates employment in
a manner contrary to the conditions laid down by law or in conflict with good
morals, the Ministry may decide to revoke the licence. If an employment mediation licence is revoked the legal or natural person may not apply for a new
licence until 3 years have passed since the revocation decision took effect.
As far as the control system in agency employment is concerned, the state’s
control and sanction powers are divided between the Labour Offices, which
monitor compliance with the Employment Act, and the Work Inspectorates.
Additionally, this issue falls under the authority of the financial authorities (tax
administrators), i.e. the Tax Offices in particular.
Under the Employment Act work agencies can mediate work either free
of charge or for a fee, including a profitable fee. When brokering work for
a fee, no fee may be demanded from the natural person for whom the employment is being mediated. It is also prohibited to withhold in favour of the work
agency or user any sums from wages or other pay provided to the worker for
the work done.
The act also regards as agency mediation of work cases where a foreigner
is sent by its foreign employer to work in the Czech Republic on the basis of
a contract with a Czech legal or natural person and the substance of the contract
is the hiring of labour. Foreigners who are non-EU nationals and want to be employed in the Czech Republic must have a valid employment permit specifying,
among other things, the kind of work and the place of work. An EU national
is also a foreigner within the meaning of the act. Nevertheless, this does not
affect the right of natural or legal persons settled in the Czech Republic for the
purpose of brokering employment in a different EU member states to provide
employment mediation services in the Czech Republic on a temporary and
exceptional basis. Both the above conditions must be satisfied, however, i.e.
that the mediation is both temporary and exceptional and is not the systematic
business of a foreign work agency. On the day on which it starts its temporary
and exceptional activity in the Czech Republic the foreign agency is obliged
to notify the MPSV ČR in writing of the particulars specified in the act and the
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
time for which this activity will be performed. If there is warranted suspicion
of a serious risk to legitimate interests or of unauthorised provision of mediation services, the Ministry may review the eligibility of these work mediation
agencies, including the question as to whether it was founded according to the
law of another EU member state.
In practice, agency work is abused most frequently by employers- they often
establish work agencies to save on staff costs (mainly saving on overtime – the
employee works part of the day as a core employee of his employer and part
of the day as an agency worker of the user). There are also breaches, including
among reputable companies, of the provisions of the Labour Code stipulating
comparable working and pay conditions for agency workers. Findings by the
Czech Ombudsman in 2007–2008 on conditions for temporary agency workers
at the leading Czech company Škoda Auto have lent support to the trade unions’
criticisms of such employment. According to the findings, Polish workers hired
through an employment agency had, contrary to law, experienced inferior working and wage conditions than those of permanent employees. Moreover, the
Ombudsman disapproved of the Labour Inspectorate’s approach to the matter.169
The biggest concentration of agency workers is in industrial sectors with
a high share of foreign capital. According to data from the Czech Statistical
Office (Český statistický ú ad, ČSÚ), there were tens of thousands of agency
workers working in industry in 2007. In the first quarter of 2007 there were
almost 40,000 such workers, most of them in the automobile industry (10,500),
in firms making electrical and optical instruments and apparatus (10,000) and
in metallurgy (6,000).
The Czech trade unions want to restrict the use of agency work; in their
opinion it is not systemic and causes more problems in companies than it resolves. According to the unions, agency work contributes to unfair competition between firms – it is supposed to be just a supplemental source of labour
for seasonal work, but it is used, even by big firms, in cases where there is no
reason for it (e.g. when a company has a constant stream of orders). In addition, the trade unions claim that it leads to tax evasion to billions of CZK per
year. The unions therefore demand that the rules for agencies are tightened
and a clear legal framework is put in place.
By contrast, employers (e.g. the most important employers’ association in
the Czech Republic, the Confederation of Industry (SP CR)) appreciate agency
169
Informace o opat eních k negativním dopadům flexibilních forem zaměstnání, p. 2, published:
http://stavba.cmkos.cz/old/Downloads/Opatreni_k_dopadum_flexibilnich_fz.doc, read 30. 4.
2013.
3 Atypical employment relationships
115
work for its flexibility, but they also admit that the existing legislation should
be amended to prevent abuse.
3.2.5 Agreements on work performed outside the employment
The Labour Code provides for two types of agreements on work performed
outside the employment, and these are: the agreement on work activity and
the agreement on performance of work, which involves work with defined
result. These agreements may be considered to be specific legislation in the
heir countries of former Czechoslovakia – the Czech Republic and Slovakia.
The legislature counts with the conclusion of agreements on work performed outside an employment relationship only in exceptional circumstances,
i.e. if it is a work of small or short extent, or works which are just auxiliary etc.
Agreements on work performed outside an employment relationship must
be concluded in writing (otherwise are not valid) and no later than on the date
preceding the date of the commencement of work.
The agreement on performance of work must precisely define the work
assignment, remuneration for its completion, the deadline for completing the
assignment and the anticipated scope of assignment unless this results directly
from the work assignment.
The envisaged extent of work (assignment) covered by the agreement on
performance of work may not exceed 300 hours in a calendar year. This extent
also includes work carried out by the employee for the same employer under
another agreement on performance of work. If the employee concludes agreements on performance of work with different employers, the annual threshold
of 300 hours applies to each of these agreements.
According to Article 76 of the Labour Code, agreements on working activity
may be concluded in respect of work that must be defined in terms of the type of
work (i.e. like in an employment relationship). The extent of a working activity
must not exceed one-half of standard weekly working hours.
Employees working under agreements on work performed outside the employment are not subjects to the provisions of employment, for example, they
are not eligible for leave, meals, rest.
3.2.6 So called Švarc-system (civil-law or commercial law agreement)
One of the government’s suggestions for combating the economic crisis is to
revive the so-called “Švarc-system”. It’s named after Miroslav Švarc, a Czech
building contractor who laid off all his employees in 1990 and immediately
re-hired them on a self-employed basis, thus saving both him and them money
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
in tax and social and health insurance. The state later made the practice illegal,
and Mr Švarc even spent a brief time in prison. However he was exonerated
in 1995, and the Švarc-system lives on – some professionals work for just one
firm but are not salaried employees of that firm. Performance of paid work
is covered by various types of contracts within civil law or commercial law
instead of an employment contract. Such a practice can be reviewed as a dissimilating legal act.
Almost two thirds of Czech employers (63%) do not agree with the government policy to penalise illegal employment on the basis of a trade certificate
and would completely legalise the so-called Švarc-system. In addition to that,
nine out of ten employers oppose the size of the fines, which the Act on Employment determines in a wide range of between 250,000 and 10,000,000 CZK.
These are among the findings of the exclusive survey carried out by cooperating law firms, Ambruz & Dark/Deloitte Legal, among managers of more than
a hundred Czech companies.170
The “Švarc system” is also one of the most frequently occurring forms of
illegal economic activities on the part of non-EU migrants, whereby a migrant
possesses a residence permit and a trade license, but in reality works as someone’s employee. The same significance was assigned to the economic activity
whereby non-EU migrants (but also those from EU-member states) perform
their (illegal or quasi-legal) job through an intermediary agent, or “client”.
The judgment of the Supreme Administrative Court ref. no. 2 Afs 22/2012
from August 1, 2012 is one of many decisions relating to the “Švarc-system”
issue. In this case the court had to consider whether a professional football
player performs dependent work for his club or activity as a self-employed
person; secondly, the dispute was about recognition of expenses necessary for
performance of a professional sportsman. The court confirmed that a professional football player and his club are free to determine whether their relationship is governed by either labour or commercial law. According to the court,
the state may not insist on only one type of contractual collaboration of players
and clubs, not even through tax policy. However, these arguments may not be
applicable in other businesses so far. It seems that conclusions relating to choice
of legal regime can be used in professional sport only.171
170
Almost two thirds of companies would legalise ‘Švarcsystém’; according to them, penalties
from the state would not lead to redundancies, published: https://www.deloitte.com/assets/
Dcom-CzechRepublic/Local%20Assets/Documents/Advocate/advocate_en_1205.pdf, read
30. 4. 2013.
171
Randls Business Bulletin No. 3/2012, published: http://www.randls.com/en/commercial-law/
publication/business-bulletin, read 30. 4. 2013.
3 Atypical employment relationships
117
3.2.7 Posting of workers
To give a general overview of the main substantive rules concerning the
terms and conditions of employment to be met by legislation transposing Directive 96/71/EC concerning the posting of workers in the framework of the
provision of services (Official Journal L 18 of 21. 1. 1997) it is necessary to
mention:
Labour Code No 262/2006 Coll. as amended,
Act No 251/2005 Coll. as amended, on Labour Inspection.
In case of posting, the employment relationship in accordance with Article 3 Paragraph 1 of the Directive 96/71/EC in so-called hard core of working conditions is provided for by the law of the member state in which the
employee is posted (regardless of what law was chosen by the parties of an
employment relationship, respectively, which law would be applicable in case
of the absence of a choice of law).
Posting of employees is governed by the provisions of Section 317–319 of
the Labour Code, which specifically regulate the posting of employees from other
EU member state to the territory of the Czech Republic and vice versa. A posted
employee is the employee who in a specified period performs work in the territory of a member state other than the State of his normally performed work.
The way by which an employee of a member state is posted to our territory,
is not governed by the Czech law, but given that a posted employee remains
employed by his legal employer, manner and terms of posting are assessed
under the law of the posting State. However, in relation to working conditions
of the so-called hard core it is necessary to examine the legislation of the host
country as well as of the posting state.
According to Section 5 (2) of the Labour Code labour-law relations of posted employees shall be governed by the Czech law, mainly the Labour Code,
special regulations and a relevant collective agreement, which regulate
a) the maximum length of working hours and the minimum length of rest
periods,
b) the minimum length of annual leave or its proportional part,
c) the minimum wage, relevant minimum level of guaranteed wage and overtime premiums,
d) occupational safety and health,
e) the working conditions for pregnant employees, employees who are breastfeeding, and female employees until the end of the ninth month after childbirth (confinement) and for adolescent employees,
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f) equal treatment for male and female employees and prohibition of discrimination,
g) the conditions of work in the case of employment by an employment agency.
The rule mentioned above shall not apply if the rights arising from the
statutory provisions of the member state from which the employee concerned
is posted to perform work within the framework of supranational provision of
services are more favourable for such employee. The favourability of each right
arising from an employment relationship (employment) shall be considered
separately.
The provisions (b) and (c) shall not apply if the period of posting of an
employee to perform work within the framework of supranational provision
of services in the Czech Republic shall not exceed 30 days (in total) per one
calendar year. This shall not be applicable if such employee is posted by an
employment agency to perform work within the framework of supranational
provision of services.
Within the free movement of services the employees can be posted to any
EU member state with a purpose of providing a service without any administrative restrictions, the employers are obliged to announce the posting of the
employees, as they are also obliged to monitor the mobility of the own staff
in the EU.
If the employee is posted from another EU member state to the territory
of the Czech Republic, this obligation is meant nor for the posting “foreign”
employer, but the domestic legal or natural person to whom the employee is
posted (with whom the employer has concluded an agreement governing the
posting of an employee). The beginning of posting and its end shall be notified
in writing, in duplicate on the information card, delivered in person or by mail
to the Labour Office in the district where the employee performs work – not
in the seat of the domestic “user” employer.
It is not allowed to unilaterally change the place of work and type of work
of the employee (except as provided for in the Labour Code, for example: reassignment of an employee (transfer to alternative work), relocation, temporary
assignment (temporary transfer of an employee to another employer), posting
on a business trip without the consent of the employee in accordance with the
Article 40–47 of the Labour Code). Given that in case of posting, the working
conditions significantly change, the consent of the employee is imprescindible.
We can say that it is necessary to realize the posting under the agreement of
both parties of the employment relationship. The Labour Code does not, however, determine a typical agreement on posting of employee that is why the
3 Atypical employment relationships
119
employee’s posting agreement can be provided directly in the employment
contract or in the agreement on change in working conditions.
There are no restrictions for the employer and the employee for the entrance into an agreement at any time and under which the employee can be
posted to work in another EU member state. The employer should agree with
the employee in the agreement, under which the posting will be realized, on
the specific terms of posting, i.e. the duration of posting, working conditions
(especially conditions of the “hard core”), the possibility of travelling to the
employee’s residence, etc.
3.3
Atypical employment relationship in Hungary
3.3.1 Introduction
Hungary adopted the Council Directives 97/81/EC on part time employment and 99/70/EC on fixed term contract in 2003.172 The New Labour Code173
vindicates that many of the regulations were clarified and simplified to enhance
flexibility on the labour market. Also, new forms of atypical employment were
introduced by the New Labour Code.
After the implementation of the Directive, the principle of equality became
a ground of unlawful discrimination governed by the Basic Principles of the Old
Labour Code,174 however after the adoption of the Act of Equal Treatment and
Promotion Equal Opportunities175 it has been regulated by the specific law.176
3.3.2 Part-time work
3.3.2.1 General form of Part-time work
Despite of the above mentioned claim on specification, the New Labour
Code is not more detailed on the rules of part-time employment than its predecessor was.
172
Act No XX of 2003, effective of July 1, 2003.
173
Act No I of 2012, effective of July 1, 2012.
174
Act No XXII of 1992, Section 5.
175
Act No CXXV of 2003.
176
Section 8r) (All dispositions as a result of which a person or a group is treated or would be
treated less favourably than another person or group in a comparable situation because of
his/her) part-time nature or definite term of the employment relationship or other relationship
aimed at work.
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Section 61 Subsection 1 defines the duty of the employer, which covers that
information shall be given to the employees regarding the vacant full or part
time opportunities,177 indicating in which jobs they are available. Subsection 2
provides that the employer shall respond to the proposition of employees for
the amendment of their employment contracts within fifteen days in writing.
Finally, Subsection 3 renders that the employer shall amend the employment
contract based on the employee’s proposition to part-time work, but only in
cases when the employee has a child not older than 3 years. The law provides
for an option modifying the working time to cover half of the daily working
time, yet parties are allowed to agree to different terms.
Since the employer makes a decision within its right of discretion, a claim
may be filed against it only if the employer has violated the provisions pertaining to such decisions.178 But the Labour Code is still silent on the valid reasons
based on which the employee’s request could be rejected by the employer.
Moreover, the Directive makes it clear that the employee’s refusal to transfer from full-time to part-time or the other way around, should not in itself
constitute a valid reason for termination of employment,179 yet the Labour Code
fails to indicate such guarantee.
3.3.2.2 Special forms of Part-time work
3.3.2.2.1 Call on Work
The New Labour Code introduced the Call on Work system as a special
form of part time work, in order to enhance labour market flexibility. The Call
on Work might be ideal for those who cannot or do not want to be engaged in
a regular employment relation.
According to Section 193 workers employed under employment contract
in jobs for up to six hours a day shall work at times deemed necessary to best
accommodate the function of their jobs. In this case the duration of working
time banking may not exceed four months. Subsection 2 provides for that the
employer shall inform the employee of the time of working at least three days
in advance.
177
Together with the opportunities related to teleworking, and permanent employment relationships.
178
Section 285 Subsection 3.
179
Without prejudice to termination in accordance with national law, collective agreements or for
other reasons arise from the operational requirements of the establishment concerned.
3 Atypical employment relationships
121
3.3.2.2.2 Job Sharing
Another special type of part time work, introduced by the New Labour Code
is Job Sharing, when the employer may conclude an employment contract with
several workers for carrying out the functions of a job jointly. Where any one
of the employees to the contract is unavailable, another worker to the contract
shall fill in and perform the functions of the job as ordered.180
The scheduling of work shall be governed by the provisions on flexible
working arrangements. Wages shall be distributed among the employees equally, unless there is an agreement to provide otherwise.
The job sharing employment relation shall cease to exist when the number
of employees is reduced to one. In this case, the employer shall be liable to
pay the worker affected absentee pay181 covering a period that would otherwise
be due in the event of dismissal by the employer; furthermore,182 the rules on
severance pay shall also apply.
3.3.2.2.3 Fixed term work
The Hungarian Supreme Court had introduced measures to prevent abuse of
the fixed-term employees long before the 99/70/EC Directive was implemented
in 2003. The current regulations on one hand maintain most of the protective
provisions.
Section 192 states that the period of fixed-term employment shall be determined according to the calendar or by other appropriate means. The date
of termination of the employment relationship may not depend solely on the
party’s will, if the duration of the employment relationship is not determined by
the calendar. In the latter case the employer is required to inform the employee
of the expected duration of employment.
The maximum total duration of successive fixed-term employment contracts
is five years, including the duration of an extended relationship and that of
another fixed-term employment relationship concluded within six months of
the termination of the previous fixed-term employment relationship. Exclusion
is given to contracts where an employment relationship is subject to official
approval, as their duration it may only be concluded for the term specified
180
Section 194 Subsection 1 of the New Labour Code.
181
Sections 148–152 render the terms of absentee pay, it is in short, the amount which shall be
calculated based on the base wage in effect at the time when due, and on the performance-based
wage and wage supplement paid for the last six calendar months (relevant period).
182
When the employment is terminated by the employer, a thirty-day notice period shall be given to
the employee; the notice period shall be gradually extended by the service time of the employer
at the employee, up to 60 days after 20 years of service.
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in the authorization. If the authorization is extended, the duration of the new
fixed-term employment relationship may exceed five years together with the
duration of the previous employment relationship.
The objective reasons justifying the renewal are regulated too: the fixedterm employment relationship may be extended between the same parties within a period of six months, or another fixed-term employment relationship may
be concluded within six months from the time of termination of the previous
one on objective grounds that have no bearing on work organization, and it
may not infringe upon the employee’s legitimate interest.
The New Labour Code omitted its predecessor’s guarantee which transformed the fixed-term contract to one with indefinite duration in case the employee worked for at least one extra day following the expiry of the original
term with the knowledge of his/her immediate superior183. The claimed reason
for such amend was that in many cases the parties did not intend to transform
the contract in such way, yet the law imposed on them. According to the new
rules, if the employee continues working after the expiration of the fixed-term
contract, the agreement is considered invalid and shall be terminated by the
employer with immediate effect184.
A novelty was introduced by the New Labour Code: this provides for an
opportunity to terminate the fixed-term contracts. According to Section 67 Subsection 8 the employer shall be permitted to terminate a fixed-term employment
relationship by notice if undergoing liquidation or bankruptcy proceedings;
or for reasons related to the worker’s ability; or if maintaining the employment relationship is no longer possible due to unavoidable external reasons.
This regulation allows the employer to share the economic risk of maintaining
a fixed-term contract which has lost its purpose with employee; however such
burden may not be imposed on the employee.
Another original provision of the New Labour Code concerns the termination of the fixed term contract by the employer without justification. In this
case the employee shall be entitled to absentee pay due for twelve months,
or if the time remaining from the fixed period is less than one year, for the
remaining time period.
The duty of the employer to provide information on indefinite term opportunities is provided for by Section 61 Subsection 1c.
183
Act No XXII of 1992 Section 79 Subsection 4; however, an employment relationship established
for a period of thirty days or less were extended only by the amount of time for which it was
originally established.
184
Section 29 Subsection 1.
3 Atypical employment relationships
123
Both the old and the new Labour Codes failed to recall the Directive’s
provision on facilitating access by fixed-term workers to appropriate training opportunities to enhance their skills, career development and occupational
mobility.185
3.3.3 Very Atypical Contractual Arrangements
3.3.3.1 Employee Sharing
Based on the new opportunity introduced by the New Labour Code several
employers may conclude an employment contract with one worker for carrying
out the functions of a job.186 The employment contract shall clearly indicate the
employer designated to pay the employee’s wages. Unless otherwise agreed, the
employment relationship may be terminated by either of the employers or by
the employee. The employment relationship shall automatically cease to exist
when the number of employers is reduced to one. The liability of employers
in respect of the employee’s labour-related claims shall be joint and several.
3.3.3.2 Telework
Telework was introduced in 2004187 and soon became popular among both
employees and employers. The New Labour Code amended the 2004 regulation
to better fit the European Framework Agreement on Telework and provides for
a definition of telework accordingly.
According to Section 197 Subsection the parties shall specifically agree on
the worker’s employment by means of teleworking in the employment contract.
The employer shall inform the employee concerning a) inspections conducted
by the employer; b) any restrictions as to the use of computing equipment or
electronic devices; and c) the department to which the employee’s work is in
fact connected. In the absence of an agreement to the contrary, the employee’s
working arrangements shall be flexible.
To be aligned with the non-discriminatory requirements, the employer shall
provide all information to persons employed in teleworking as it is provided
to other employees and the employer shall provide access to the employee for
entering its premises and to communicate with other workers.
Unless otherwise agreed, the employer’s right of instruction is limited solely
to the definition of duties to be discharged by the employee. The employer may
185
Clause 6 of Directive 99/70/EC.
186
Section 195 of the New Labour Code.
187
Act No XXVIII of 2004.
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restrict the use of computing equipment or electronic devices it supplies solely
to the work the employee performs on its behalf.
An inspection concerning the completion of the work assignment shall not
constitute any right for the employer to inspect any information stored on the
computing equipment of the employee used for discharging his duties, which
are unrelated to the employment relationship. As regards the employer’s right
of access, the data necessary for control of the prohibition or restriction shall
be considered to be related to obligations originating from the employment
relationship.
Unless there is an agreement to the contrary, the employer shall determine
the type of inspection and the shortest period of time between the notification
and commencement of the inspection if conducted in a property designated as
the place of work. The inspection may not bring unreasonable hardship on the
employee or on any other person who is also using the property designated as
the place of work.
3.3.3.3 Posted Workers
The 96/71/EC Directive was implemented in 2001.188 In the Hungarian
version of the official text of the Directive, the expression of ‘posting’ was
translated as ‘temporary assignment’. Therefore, in the Old Labour Code the
regulations concerning the posting of workers were placed right after the general regulations related to the temporary assignment.189 Such interpretation
introduced unnecessary restriction on posting, limiting the scope of application to cases when the employee performed work outside of Hungary based
on the order of the employer. The correct interpretation based on Article 2 of
the Directive would be that the scope of application includes all cases when
the (posted) worker carries out her or work his in another Member State than
the State in which she or he normally works, for a limited period. This misinterpretation was corrected by the New Labour Code.
Section 295 Subsections 1 and 2 stipulate – in accordance with the Directive – the so called hard core of the protective rules which should be observed
by the provider of the services notwithstanding the duration of the worker’s
posting. Thus Hungarian law shall apply to employment relationships in terms
of: a) maximum working time and minimum rest periods; b) minimum duration of annual paid leave; c) the amount of minimum wages; d) conditions for
temporary agency work; e) occupational safety; f) conditions of employment
188
Act No XVI of 2001, effective of July 1st 2001.
189
Old Labour Code Section 106/A–106/B.
3 Atypical employment relationships
125
or work by pregnant women or women who have recently given birth, and of
young people; g) the principle of equal treatment, including the provisions of
a collective agreement with extended scope as pertaining to the employment
relationship in question.
With regard to minimum wage, the provisions of Sections 136–153 are
applicable accordingly. Payments made to voluntary mutual insurance funds
and any remuneration provided to the employee that is not subject to personal
income tax are excluded from the concept of minimal wage. This provision is
in line with Article 3 Para 1 of the Directive.
Article 6 of the Posted Worker Directive regulates jurisdiction and provides
for that judicial proceedings may be instituted in the Member State in whose
territory the worker is or was posted, without prejudice, where applicable, to
the right, under existing international conventions on jurisdiction, to institute
proceedings in another State. Therefore, Section 295 Subsection 4 provides
priority to the law governing the employment relationship in case it contains
more favourable regulations for the employee in terms of the requirements
defined in Subsection 1.
The New Labour Code omits its predecessor’s provision stipulating that
the regulations of Subsections 1–4 shall be duly applied to the foreign posting
(assignment, hiring-out) of workers employed by Hungarian employers if these
aspects are not covered by the laws of the country where the work is performed.
The reason is that there was no need for any regulations in the Hungarian Labour Code which aims to protect the labour market of third countries.
Section 297 amends the former regulations concerning the duty of application of the hard core regulations. According to Section 106/B Subsection 3 of
the Old Labour Code, domestic employers must have ensured that such provisions are applied to employees posted at their facilities by foreign employers.
This regulation together with Section 1 Subsection 2b of Act No LXXV of
1996 on Labour Inspection, which used to allow labour inspectors to check
upon the foreign employer led to insecurity and caused unnecessary difficulties. Since the domestic employers are often not in the position to control the
practice of the foreign counterpart, and the sanctions imposed by the labour
inspectorate are objective, technically the domestic employer was held liable
for the wrongdoing of the foreign employer.
The new provisions stipulate that prior to the conclusion of a services contract, the beneficiary shall inform the foreign employer in writing concerning
the working conditions applicable pursuant to Section 295. In the event of
failure to provide the information described above, the beneficiary shall be
subject to full financial liability for the employee’s claims under Section 295.
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Special provision apply to employers engaged in construction work that
involves the building, remodelling, maintenance, improvement or demolition
of buildings, thus particularly excavating, earthwork, actual building work, the
assembly and dismantling of prefabricated components, fitting and installations,
renovation, restoration, dismantling, demolition, maintenance, upkeep, painting
and cleaning work, as workers employed for these activities shall be subject to
collective agreements covering the entire industry or an entire sector.190
A brief overview on working conditions
Maximum working time: the scheduled daily working time of an employee
may not be less than four hours, with the exception of part-time work.
According to the work schedule: a) the daily working time of employees
shall not exceed twelve hours, or twenty-four hours in the case of stand-by
jobs; b) the weekly working time of employees shall not exceed forty-eight
hours, or seventy-two hours in the case of stand-by jobs, if so agreed by the
parties.
Minimum rest periods: eleven hours of uninterrupted rest period after the
conclusion of daily work and before the beginning of the next day’s work;
or at least eight hours of daily rest shall be provided to employees working
a) split shifts; b) continuous shifts; c) multiple shifts; d) in seasonal jobs;
e) in stand-by jobs.
Minimum duration of annual paid leave: the amount of vested vacation time
shall be twenty working days; the employee is entitled to extra vacation
time gradually increasing by the age up to ten working days over the age
of forty-five.
The amount of minimum wages: HUF 93,000 per month (as of 2012).191
3.3.4 Agency Work
Agency work was introduced to Hungary in 2001.192 The regulations had
gone through several changes until in 2011 when Directive 2008/104/EC of
the European Parliament and of the European Council was adopted by Act No
CV of 2011. However, even in the latest law, definitions were not in all cases
clear, and therefore were subject to different interpretations. The New Labour
Code, dedicating a full chapter to the matter, aims for correcting the previous
mistakes by clarifying and the simplifying the terms of agency work.
190
Section 295 Subsection 3.
191
Government Decree No 298/2011. (XII. 22.), subject to annual review.
192
Act No. XVI of 2001.
3 Atypical employment relationships
127
Section 214 gives the definitions related to temporary agency work (such as
temporary worker, user enterprise, agency, assignment). Then in subsection 2,
provides for the maximum duration of the assignment, which may not exceed
five years, including any period of extended assignment and re-assignment
within a period of six months from the time of termination of his or her previous
employment, irrespective of whether the assignment was made by the same or
by a different temporary-work agency.
Section 215 provides for the personal scope of temporary-work agencies
by providing and exhaustive list of a) a company established in an EEA Member State that is authorized under national law to engage in the activities of
temporary-work agencies; b) a business association established in Hungary
whose members have limited liability, or a cooperative society in respect of employees other than its members; this cooperative must satisfy the requirements
prescribed in the Labour Code and in other legislation and must be registered
by the government employment agency.
Where a temporary-work agency is excluded from the register, the provisions on invalidity are applicable with regard to employment contracts, which
is a novelty introduces by the New Labour Code.
Section 216 lists up the restrictions regarding the scope of assignment. The
assignment of workers is not allowed a) in the cases specified by the relevant
employment regulations; b) with a view to replacing workers on strike; c) if
the user enterprise has terminated the employment relationship of the employee
in question within six months for reasons in connection with the employer’s
operations or during the probation period; d) beyond the maximum duration
specified by the law. Moreover, the user enterprise shall not have the right to
order a temporary agency worker to work at another employer.
If the parties conclude an agreement which contains a clause to ban or
restrict any relationship with the user enterprise following termination of the
employment relationship on any grounds; or to stipulate the payment of a fee by
the employee to the temporary-work agency for the assignment, or for entering
into a relationship with the user enterprise, the provisions of invalidity apply.
In accordance with Article 6 of the Directive 2008/104/EC, the user enterprise has the duty to inform the local works council at least once in a six-month
period, and shall keep the temporary agency workers it employs informed on
a regular basis about the number of temporary agency workers employed and
of the employment conditions as well as on vacant positions.
To protect temporary agency workers, the employment may only be terminated by the temporary-work agency. The agreement shall be made in writing.
The principle of equal treatment had been long missing from the Hungarian regulations, and therefore had attracted much attention. To elevate its
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importance, the New Labour Code dedicates a separate section to the issue.
This section deals with the possibility of derogation too, in accordance with
the requirement of the Directive. Section 219 provides for that the basic working and employment conditions of temporary agency workers shall be, for the
duration of their assignment, at least those available to the workers employed
by the user enterprise under employment relationship. The basic working and
employment conditions shall, in particular, cover a) the protection of pregnant
women and nursing mothers; and b) the protection of young workers; c) the
amount and protection of wages, including other benefits; d) the provisions on
equal treatment.
As regards the payment of wages and other benefits, the provisions on equal
treatment shall apply as of the one hundred and eighty-fourth day of employment at the user enterprise with respect to any worker: a) who is engaged with
a temporary-work agency in an employment relationship established for an
indefinite duration, and who is receiving pay in the absence of any assignment
to a user enterprise; b) who is recognized as a long-term unemployed;193 c) who
is working within the framework of temporary agency work at a business association under the majority control of a municipal government or public benefit
organization, and a registered public benefit organization.
In case of re-assignment to the same user, the provisions regarding the wages and other benefits shall apply for the calculation of days of the duration
of the assignment.
No derogation is allowed in the agreement of the parties or in the collective agreement regarding a) the maximum duration of the assignment; b) the
personal scope of the temporary-work agency; c) the restrictions related to the
scope of assignment; d) the indispensable elements of the agreement (a clause
indicating that it was concluded for the purpose of temporary work, and shall
contain a description of the work and the base wage); e) the principles of equal
treatment. In some cases derogations in the collective agreement are allowed
only to the benefit of workers.194
In connection with temporary agency work, provisions related to call on
work, job sharing, employee sharing, outworking shall not apply; and incapacitated employee shall not be employed for temporary agency work.
193
Literally who is recognized as a long-term absentee from the labour market as defined in Point 1
of Subsection 2 of Section 1 of Act CXXIII of 2004.
194
Subsection 3 of Section 218; Subsections 2–3 of Section 220; Paragraphs a)–b) of Subsection 2
of Section 219.
3 Atypical employment relationships
3.4
129
Atypical employment relationship in Poland
3.4.1 Fixed-term agreements
Fixed-term work contracts are a popular form of employment in Poland. It
results from the data of the Central Statistical Office that since the introduction
of market economy in Poland there has increased interest in fixed-term contacts
and the number of employees employed on grounds of fixed-term contracts has
been systematically increasing.
In the second quarter of the year 2011 on the grounds of the work contracts
concluded for a limited period of time there were employed 3 382 000 workers.195 These are the employers who are mainly interested in fixed-term employment. Employing workers for a limited period of time makes it possible
for them to adjust the number of employed workers to the present needs resulting from the demand for the produced goods and services. Apart from
that, the workers employed on the grounds of fixed-term contracts are given
lesser protection e.g. terminating an employment contract does not require an
indication of the cause nor does it need to be preceded by consultations with
the trade unions.
The increase in employment is indicated as one of the benefits resulting
from the rise in fixed-term employment.196 Yet among the workers fixed-term
work contracts are treated as a worse form of rendering work services (sometimes called “junk contracts”). Employment on the grounds of fixed-term contracts leads to the decrease of the feeling of stability among the workers and
frequently leads to unfavourable working conditions and pay. Because of this
it is necessary to achieve a compromise between the need of making the job
market more flexible and the need to guarantee protection to the people rendering work on the grounds of the limited period of time work contracts.197
In the framework agreement dated as of 28 June 1999 on definite period of
time work which was included in the Council Directive 99/70 concerning the
framework agreement on definite period of time work concluded by UNICE,
CEEP and ETUC special attention was paid to the need of implementing legal
measures to prevent abuse resulting from the use of the consecutive contracts
for a definite period of time especially before concluding fixed-term contracts
on conditions justifying concluding the contract for an indefinite period of time.
195
“Kwartalna informacja o rynku pracy” Główny Urząd Statystyczny. Departament Pracy. Warszawa 2012, s. 4.
196
E. Bąk: Nietypowe formy zatrudnienia na rynku pracy. Warszawa 2009, s. 35–37.
197
D. Sodenkamp, K.H. Schmidt: Erleben von Rollenambiguität bei Leiharbeitnehmern. Zentralbl
Arb Wissensch. 2001, nr 1, s. 32–38.
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The implementation of this directive encounters some difficulties. Namely,
in the agreement in the Polish version there is a used a term of a worker employed for a definite period of time which might suggest that the directive refers
only to contracts concluded for a definite period of time. Yet, the definition of
a worker employed for a definite period of time (a fixed-term worker) included
in item 3 subparagraph 1 of the agreement refers to workers for whom the final
date of a work contract termination is defined by objective conditions, such as
the precisely defined date, performing a definite task or an occurrence a definite
event. The definition clearly indicates that an agreement refers to concluding
all fixed-term agreements. In the Polish labour code there are different kinds of
fixed-term contracts, in which there may be distinguished contracts for a trial
period, definite period of time contracts, contracts for substituting an employee
and contracts to perform definite work. Therefore it should be assumed that the
term of employment for a definite period of time in the Polish language version
of the directive means a fixed-term employment.198
The aim of the Directive No 99/70/WE is to provide the workers employed
on the grounds of the fixed-term contracts the rights conditions which may be
compared to the rights the workers employed for an indefinite duration are
vested with and preventing abuses which were based on long term employment
on the grounds of fixed-term employment contracts in conditions justifying
indefinite period of time employment contracts.199 The abuses can take place
by concluding long-term contracts (many-year contracts) for a limited period of
time or concluding many successive contracts. In the context of the Directive
No 99/70/WE implementation, the labour code provisions referring to a definite
period of time contracts deserve special attention.
In the Polish labour law there has not been defined the maximum duration
of an employment contract for indefinite period of time nor the maximum total
duration of subsequent contracts. Frequently, indefinite duration contracts are
substituted by long (many-year) definite period of time contracts. The lack of
statutory limits as to the duration of a definite limit of time contract does not
mean though that many-year contracts, for example 10-year contracts, may be
freely concluded. If concluding a many-year contract for a definite period of
time may not be appropriately justified, there is a suspicion; there are wellfounded grounds to suspect that the real aim is to circumvent provisions re198
Por. Z. Hajn, Nietypowe umowy o pracę (w:) Europeizacja polskiego prawa pracy, red. W. Sanetra, Warszawa 2004, s. 71; Ł. Pisarczyk, Terminowe umowy o pracę – szansa czy zagrożenie?
Praca i Zabezpieczenie Społeczne2006, nr 8, s. 5; Myszka: Skuteczno ć implementacji prawa
wspólnotowego do polskiego prawa pracy w zakresie terminowych umów o pracę. Praca i Zabezpieczenie Społeczne 2010, nr 12, s. 19.
199
M. Myszka: Skuteczno ć implementacji prawa wspólnotowego do polskiego prawa pracy…, s. 19.
3 Atypical employment relationships
131
ferring to an indefinite period of time contract. In this situation an employee
may indicate that concluding the contract was not in accordance with the social
and economic purpose of this contract and aimed at the circumvention of the
provisions of law and he/she may question the fixed-time nature of employment.200 In this situation an employee may bring action to the labour court
demanding to establish that he/she has concluded a contract with an employer
for an indefinite period of time. Yet, employees rarely decide to lay a claim
to establish the contents of an employment relationship. In the result there is
a great number of contracts for a definite period of time, which in fact function
as contracts for an indefinite period of time.201
De lege ferenda the implementation of regulations defining the maximum
total duration of contracts for a definite period of time should be called for. Such
a regulation would be an additional guarantee of the Directive No 99/70/WE
implementation effectiveness. It is worth adding that the so called anti-crisis
law binding in the period since August 2009 until December 2011 provided
that the maximum duration of fixed-term contracts could not exceed two years.
Trade Unions call for the permanent implementation of an analogous provision
to the labour code, yet employers are inclined to accept a four-year period. The
duration of fixed-term contracts is the subject of negotiations of social partners
on the all-Polish level within the framework of the Trilateral Commission for
Social and Economic Matters. At present, in practice it is allowed to conclude
fixed-term employment contracts for even five years.
Clause 5 of the Framework Agreement on a definite period of working time
requires giving protection to workers employed for a definite period of time.
The protection may rely on defining objective reasons justifying the renewal of
fixed-term contracts, implementing the maximum length of successive fixedterm employment contracts or the number of renewals of such contracts. To
prevent abuses based on the employers avoiding concluding indefinite period
of time contracts, in Art. 251 of the labour code the Polish legislator limited
the possibility of a multiple conclusion of definite period of time employment
contracts. According to the indicated provision, a conclusion of a third employment contract by the parties has the equivalent legal effects to the conclusion of
a contract for an indefinite period of time on condition that the interval between
the termination of the preceding and entering into the subsequent employment
contract is no longer than one month. This principle also refers to the potential
200
Wyrok SN z dnia 7 wrze nia 2005 r. II PK 294/04 (OSNP 2006, nr 13–14, poz. 207); Wyrok
SN z dnia 25 lutego 2009 r. II PK 186/08 (LEX nr 512994).
201
J. Stelina: Prawna stabilizacja terminowych umów o pracę. Przegląd Sądowy 2001, nr 6,
s. 26–29.
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extension of the concluded contract on the basis of the agreement between the
parties, which means, as defined by this provision, each successive agreement
on extension of the duration of an employment contract is deemed to be the
conclusion a subsequent employment contract.202
The indicated limits do not refer to contracts concluded for the purpose of
substituting the absent employee and contracts concluded in order to complete
occasional or seasonal work or tasks performed periodically. In these particular
situations the repeated employment is justified by objective reasons. The parties
of the employment relationship can conclude many such contracts and they are
not transformed into the contract concluded for an indefinite period of time.
The weak aspect of the “structure” defined in Art. 251 of the Labour Code
is also the fact it is relatively easy to break the continuity of the concluded
contracts. In practice this provision (the law) is frequently circumvented by
concluding another fixed-term agreement or by introducing a fictitious break
longer than one month, which causes that the counting of the three successive
definite duration contracts starts from the beginning.203
In order to realize the 99/70/WE Directive provisions in the Polish legal
order there has been implemented prohibition against the discrimination of
workers employed for a definite period of time (art. 113 of the Labour Code).
Employees should be treated equally in relation to establishing and terminating
an employment relationship, promotion conditions, as well as access to training
and employment conditions (art. 183a of the Labour Code).
This means that the employer may not, for example, make the employees’
training conditional upon the kind of contract concluded with an employee. The
fixed-term employees should be provided with the same conditions as these
employed for an indefinite period of time.
The person in relation to whom the employer violated the principle of
equal treatment in employment has the right to be indemnified. The statutory
guarantees on “non-discrimination” are not sufficient, though. The temporary
character of employment makes that the employers are unwilling to “invest” in
workers employed on the basis of fixed-term contracts and employees, afraid of
termination of employment relationship, do not lay their claims for compensation they have the right to.204
202
U. Jackowiak: Terminowe umowy o pracę a ochronna funkcja prawa pracy. Monitor Prawa
Pracy 2004, nr 4, s. 96–100.
203
A. Nowak: Trzecia, a może czwarta umowa na czas okre lony. Serwis Prawno-Pracowniczy
2004, nr 20, s. 9–10; J. Strusińska- ukowska: Trzecia umowa o pracę – już bezterminowa.
Prawo Pracy – 2004, nr 10, s. 3–7.
204
A. Tomczyk: Problemy związane z funkcjonowaniem umowy o pracę na czas okre lony w praktyce Państwowej Inspekcji Pracy (w:) Umowa o prac na czas okre lony – jej rola i znaczenie
3 Atypical employment relationships
133
One of the aims of concluding fixed-term contracts is to make employment
more flexible. After the lapse of time the contract has been concluded for, the
employer is not obliged to continue employing the worker. This state of affairs
makes that employment of workers for a definite period of time is a comfortable
way of adjusting the level of employment to the present needs of the employer.
The intention of the legislator was to make the lapse of time the basis of the
termination of a definite period of time contract. An earlier termination of some
definite period of time contracts is allowed. According to art. 33 of the Labour
Code a contract concluded for the period of time longer than 6 months may be
terminated before the lapse of the time it was concluded for only if the parties
included the clause of terminating the contract in the contents. At present the
introduction of the clause of notice to terminate a contract concluded for the
period longer than 6 months has become a principle. This means that the contract may be terminated at any time by each party. What is more, terminating
a given contract, an employer is not obliged to give the reason for terminating it
nor consult the intention (to terminate it) with a trade unions organization. This
state of affairs brings about a notable lack of stability to the workers employed
for a definite period of time.205
The lack of stability also results from the fact that in the Polish Labour
Code there is provided one two-week period of notice to terminate a definite
period of time contract, regardless the duration of the contract. It is unfavourable especially for the employees who concluded longer fixed-term contracts
in comparison with the three-year period of notice to terminate an indefinite
period of time contract of the employees employed by a given employer for
the period of time longer than three years.
3.4.2 Part-time employment
Part-time work is one of the ways of keeping balance between professional and family life of the employees. Part-time work allows making active
the people who want to combine work and family life, these people who are
still learning, these who enter the labour market and the elderly ones, who are
gradually retiring from the labour market. Apart from that, from the employer’s
point of view employing part-time workers allows to adjust the employment
w kreowaniu stosunków pracy. Materiały Konferencyjne, red. E. Wichrowska-Janikowska;
Łód 2004, s. 32–36.
205
B. Wagner: Terminowe umowy o pracę. Warszawa 1980, s. 35; Ł. Pisarczyk, Terminowe
umowy o pracę – szansa czy zagrożenie…, s. 3; M. Frączek: Czy można wypowiedzieć umowę
okresową? Serwis Prawno-Pracowniczy 2005, nr 7, s. 3; M. Myszka: Skuteczno ć implementacji
prawa wspólnotowego do polskiego prawa pracy…, s. 19.
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
condition and structure to the present needs.206 In the year 2011, 1255 thousand
workers which means 7,7% of the total number of workers worked part-time.207
In Poland part-time work is treated as a worse form of employment connected
with lower pay and a limited possibility of promotion. Apart from that, it is
applied mainly at posts where there are required low qualifications. Women
decide to work part-time (10,8%) more often than men (5,3%).208
In the Polish legislation there is a lack of definition of a worker employed
part-time. This definition has been included in the framework Agreement of
15 December 1997 on the issue of part-time employment which has been included in the Directive of the Council 97/81/WE referring to the framework
agreement on part-time employment concluded by UNICE, CEEP and ETUC.
According to item 3 of the Agreement a worker employed part-time (a reduced
scope of working time) is one whose regular working time measured on a weekly
basis or average in the period of time longer than one year is shorter than working
time of a worker employed in a comparable full-time scope of working time.
The scope of working time is defined in the employment contract. If the
parties do not define it (the scope of working time) in the contract and nothing
different results from the circumstances in which the contract is concluded,
it is assumed that they agreed on providing work on the full-time basis. The
scope of working time should be defined by giving an appropriate fraction,
for example ½ of the scope of time. In the employment agreement there may
also be established an employee’s schedule of working time, e.g. work will be
performed 4 hours every day or on certain days of the week. Yet, in practice
such precise definition of the working time schedule is rarely used.
In the Polish legislation part-time work has not been regulated in detail.
Yet, within the framework of the realization of the Council Directive 97/81/WE
aims there has been introduced an obligation of the employer to inform the
employees about the possibility of full-time or part-time employment (art. 942
of the Labour Code) and about the prohibition of discrimination with regard to
being employed part-time (art. 113 of the Labour Code.)
206
U. Menges: Altersteilzeit – Problematisch ist weniger das Gesetz, sondern die Art und Weise,
wie Unternehmen es nutzen. Personal, 2001, nr 10, s. 558–562; A. Skórska: Praca w niepełnym
wymiarze czasu pracy szansą na zwiększenie aktywno ci zawodowej kobiet – do wiadczenia
krajów UE, (w:) Elastyczne formy pracy. Szanse i zagro enia, red. C. Sadowska-Snarska,
Białystok 2008, s. 184; E. Bąk: Nietypowe formy zatrudnienia na rynku pracy. Warszawa 2009,
s. 41–43.
207
Kwartalna informacja Głównego Urz du Statystycznego o aktywno ci ekonomicznej ludno ci,
III kwartał 2011 roku. Warszawa 2011, s. 6.
208
Kwartalna informacja Głównego Urz du Statystycznego o aktywno ci ekonomicznej ludno ci,
III kwartał 2011 roku. Warszawa 2011, s. 7.
3 Atypical employment relationships
135
Apart from that, in art. 292 of the Labour Code there is envisaged a principle concerning equal treatment of employees, disregarding their scope of
working time they are employed for.
It is also worth noticing that in Art. 1867 of the Labour Code there is envisaged a possibility of an employee who is entitled to take a childcare leave
(following at least a 20-week maternity leave) to put a motion to reduce the
scope of working time. Namely, in the period of time an employee might use
a maternity/paternity leave he/she may put a motion to reduce the scope of
working time maximum to the half of the full-time employment.
It is essential the employer is obliged to accept the employee’s request.
Apart from that, for the period of time of 12 months of work in a reduced scope
of working time, an employee may not be given notice to terminate the contract.
Termination of the contract by the employer in that period is admissible only
due to the declaration of bankruptcy or liquidation of the employer or for other
reasons justifying the termination of the employment contract without notice
through no fault of an employee.
The indicated provision pursues one of the objectives of the Directive which
is to facilitate this form of development. It is extremely important from the
employees’ point of view. On the one hand it gives an employee a guarantee
of employment. On the other it makes it possible for the employee to combine
vocational career and family life without taking a childcare leave, which is
especially important for these who are not entitled to a childcare allowance.209
It is also worth stressing that both a female employee – a mother, a guardian
of a child as well as a male employee, a father, a guardian of a child may use
this right.
Yet both parents, guardians, are not entitled to the reduced scope of time at
the same time.210 In practice this provision is frequently used by the employees
to extend the protection before the termination of an employment contract an
employee has the right to during the maternity leave (for example employees
put forward a motion to reduce the scope of time by 1/8 of their full employment).
In the Polish employment law the situation of workers employed part-time
if they perform work exceeding the agreed scope of time has been settled in
a special way. It ought to be explained that according to Polish courts and the
doctrine, overtime work allowing an employee to get extra payment starts
209
M. Gersdorf, K. Rączka, M. Raczkowski: Kodeks pracy. Komentarz. Warszawa 2011, s. 842;
M. T. Romer: Prawo pracy. Komentarz. Warszawa 2009, s. 973.
210
A. Marek: Krótszy wymiar czasu pracy jako alternatywa urlopu wychowawczego. Słu ba Pracownicza 2004, nr 11, s. 12.
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
after exceeding an 8-hour period (in the Polish language it is called an 8-hour
“norm”; translator’s note) in a 24-hour period. It ought to be explained that
according to Polish courts and the doctrine, overtime work which entitles an
employee to obtain extra remuneration starts an hour after exceeding an 8-hour
period (an 8-hour “norm”) in a 24-hour period (or possibly a 24-hour period
“norm” extended to 12 hours) and an employee obtains regular remuneration
and a bonus for overtime work. Therefore according to art. 151 § 5 of the Labour Code the parties set out in the employment contract the admissible number
of working hours above the working time specified in the employment contract,
which if exceeded, entitles the employee to the remuneration bonus in addition
to the regular remuneration for overtime work. Art. 151 § 5 of the Labour Code
does not determine what happens if the parties in an employment contract do
not define the number of hours, when exceeded, entitles an employee to additional remuneration (which happens frequently).211 According to the Supreme
Court in the above situation an employee has the right to extra remuneration
only after exceeding 8 hours a day or 40 hours a week.212
For example if an employee is employed part time, he/she should work
20 hours a week. If the required by provisions limit of hours is not specified in
the employment contract and the employee will be working above the admissible number of working hours, he/she will get regular remuneration for extra
hours without the right to a bonus. It happens in practice that an employee
working part time works the same number of hours as a full time worker.
Then his remuneration will be the same as the remuneration of a full time
worker, but he will be entitled to an annual leave amounting to ½ of the leave,
according to the principle pro rata temporis.
Such interpretation of art. 151 § 5 of the Labour Code often leads to abuse.
It happens that employer’s employ workers part time and then require a greater
amount of work from them than agreed, not paying them extra remuneration,
only regular remuneration.213 It must be stressed that an employee is obliged
to work overtime and unjustified refusal can have negative consequences for
the employee. Apart from that, the request of extra work (de facto the increase
of the scope of working time) does not require the employee’s consent nor the
change of the employment agreement. It is an easy way of adjusting the level
211
Ł. Prasołek: Godziny nadliczbowe “niepełnoetatowców”, Serwis Prawno-Pracowniczy 2005,
nr 18, s. 13–14.
212
Wyrok Sądu Najwy szego z dnia 9 lipca 2008 r. sygn. akt I PK 315/2007 (OSNP 2009, nr 23–24,
poz. 310).
213
A. Ornowska: Glosa do wyroku Sądu Najwy szego z dnia9 lipca 2008 r. sygn. akt I PK
315/2007. Przegląd Sądowy 2010, nr 11–12, s. 194 i nast.
3 Atypical employment relationships
137
of employment to the needs of the work establishment especially in the face
of the economic crisis.
It must be stated that Art. 151 § 5 of the Labour Code and its interpretation
infringe the principle of the equal treatment of the employees and the nondiscrimination principle included in the Directive 97/81/WE on the scope of
part time work.214
3.4.3 Temporary workers employment
Fixed-term employment is one of the forms of flexible employment. In the
EU law fixed-term employment has been regulated in a comprehensive way in
the European Parliament and the Council Directive 2008/104/WE of 19 November 2008 on fixed-term work. The Polish legislator introduced regulations
referring to fixed-term employment earlier than the European institutions did.
On 9 July 2003 the law on employment of fixed-term employees was passed.215
Temporary work in Poland becomes more and more popular. It results from
the Ministry of Labour and National Service (Welfare) Report “Employment
Agencies – the year 2010” that in 2010 there were 1018 temporary work agencies. The greatest number of agencies of temporary work comes into being in
unindustrialized provinces (the Mazovian, Silesian, Lower Silesian provinces).
In the year 2010 the number of employees amounted to 433 102 – this means
a 14% increase in relation to 2009. The greatest group of temporary employees
consisted of persons under 25 years of age and over a half of the employed
are women – 50,7%. More and more employers make use of the services of
temporary work agencies because fixed-work allows adjusting the level of
employment to the present needs of a work establishment. Temporary work is
also connected with the benefits for the employee. First of all it is such a form
of employment which allows the employee to get work experience because
often young people without vocational experience are employed as temporary
employees as well as people unemployed for a long period of time because
temporary work agencies usually direct to work people of a low level of education. It is often the only possibility of finding work for young people and these
who do not have special qualifications.216
214
M. B. Rycak: Wymiar i rozkład czasu pracy. Warszawa 2008, s. 121–124.
215
Ustawa z dnia 9 lipca 2003 r. o zatrudnianiu pracowników tymczasowych. (DZ.U. 2003, nr 166,
poz. 1608 ze zm.).
216
A. Bulik, A. Sobczyk: Ustawa o zatrudnieniu pracowników tymczasowych. Monitor Prawa
Pracy 2006, nr 1, s. 14; E. Bąk: Nietypowe formy zatrudnienia…, s. 64.
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Temporary work is an untypical form of employment because apart from
an employee and an employer (temporary work agency) there also appears the
third party “subject”, this means an employer user. The employer user is not
a party to an employment agreement. A temporary term work agency is the
employer which directs an employee to work at employer user. The temporary
work agency concludes an employment agreement with an employee, keeps
the workers files, pays remuneration and in case of the work relationship termination issues an employment certificate. A characteristic feature is the lack
of subordination of an employee to his/her employer in the work process. The
manager’s rights in relation to an employee are performed by an employer user.
There is another mode of concluding an employment contract. In a typical
work relationship employment conditions are established directly between an
employee and an employer. Yet in temporary employment the first agreement
is established between a temporary work agency and an employer user. This
agreement refers to conditions and working time for example kind of work
which the employee is to be given, place of work, the scope of working time.
Only after concluding such an agreement a temporary work agency submits to
an employee an offer of employment on specified conditions.217
In the Polish labour law a temporary work agency may employ an employee only on the grounds of a definite period of time employment contract
or contract for the time of performing specified work. The law clearly shows
that work may be done only on the basis of these two kinds of contracts. Yet
in practice contracts for the time of performing specified work are concluded
with temporary workers very rarely. A contract for a definite period of time
cannot be concluded with a temporary worker. Concluding fixed-term contracts
with a temporary worker is to provide flexibility of this work relationship.218
In the Polish law on temporary workers employment there are included
many restrictions on this form of employment. Firstly, a subject with whom
a temporary employee already remains in work relationship cannot be an employer user. Apart from that, a temporary employee may not be entrusted with
work for the benefit of an employer user if a worker was employed on this
post and with whom employment relationship was terminated in the period of
217
A. Chobot, K. Pachciarek: Prawa i obowiązki agencji pracy tymczasowej i pracodawcy u ytkownika wobec pracownika tymczasowego. PiZS 2005, nr 1, s. 23–24.
218
A. Sobczyk: Ustawa o zatrudnianiu pracowników tymczasowych. Komentarz. Kraków 2005,
s. 41; M. Paluszkiewicz: Zatrudnienie tymczasowe w polskim prawie pracy. Konstrukcja
i charakter prawny. Warszawa 2011, s. 133–137.
3 Atypical employment relationships
139
the former three months because of reasons not relating to employees. These
restrictions are to prevent abuses in using temporary employment.219
The limitation of the scope of time of temporary work is also worth noting. Within the six consecutive months a temporary worker may render work
for the benefit of the same employer user for the period of time not exceeding 18 months. The Polish legislator has envisaged an exception, though. If
a temporary employee substitutes an absent employee, the period of time of
performing temporary work may amount to maximum 36 months. The limit
of time of temporary work performance for the benefit of one employer user
was to induce employer’s users to employ workers permanently after completion of temporary work.220 It appears in practice though, that employers users
rather rarely employ workers permanently after completing temporary work,
they prefer to substitute them by other temporary workers. Also temporary
work agencies are not interested in temporary employees finding permanent
employment because they lose an employee and they have to train and employ
another person.221
3.4.4 Delegating employees to another country in order
to render services
Workers employed by an employer having a seat in Poland may be delegated to perform work on the territory of another country. In case of delegating
workers on the territory of one of the European Union Member States there may
be applied provisions of the European Parliament and the Council Directive
No 96/71/WE of 16 December 1996.
According to art. 2 of the Directive 96/71/WE a delegated employee is one
who for a limited period of time performs work in another member state different than the one he usually works in. The aim of the directive was to ensure
that the employees have such employment conditions as these in the country
to which they have been delegated. As a result, a Polish employer is obliged
to adjust the worker’s employment conditions to the standards binding in the
country of delegation concerning the working time, the period of rest, the
length of a paid annual leave, the remuneration rate including remuneration
for overtime. Applying the provisions of the 96/71/WE Directive the Polish
219
L. Mitrus: Ochrona pracowników tymczasowych w wietle prawa unijnego a prawo polskie
(w:) Z problematyki zatrudnienia tymczasowego red. A. Sobczyk. Warszawa 2011, s. 22.
220
D. Makowski: Zatrudnienie pracowników tymczasowych. PiZS 2003, nr 12, s. 27; M. Łajeczko:
Ustawa o zatrudnieniu pracowników tymczasowych. Słu ba Pracownicza 2003, nr 12, s. 7.
221
M. Paluszkiewicz: Zatrudnienie tymczasowe w polskim prawie pracy…, s. 148.
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employer should change working conditions by giving notice of cancellation
of contractual conditions of work and remuneration (the so called changing
notice) or by mutual consent of the parties concluded between an employer
and an employee. It ought to be stressed that there is an obligation to change
the employment contract only if the employment conditions in the country of
delegation are more favourable for an employee than in Poland. The element
of the employment contract which must be changed in each case is the place
of work. If the place of work is not changed it ought to be assumed that an
employee performed work outside the area of the country within the framework
of a business trip. This means that when the employer delegates an employee
to another country he/she is entitled to the reimbursement of any expenses incurred in relation to the business trip.222
In order to implement the Directive No 96/71/WE the Polish legislator supplemented Chapter IIa to the Labour Code (art. 671–674 of the Labour Code)
entitled “Conditions for employees delegated from a European Union Member
State to work in the Republic of Poland”. The indicated provisions came into
life on the day Poland became a European Union member. The provisions of the
Polish Labour Code “repeat” these of the Directive No 96/71/WE. According
to art. 671 of the Labour Code the employers delegating their employees to the
Republic of Poland are obliged to provide them with the conditions which are
not worse than these resulting from the Polish labour law. Employers from the
countries outside the European Union who delegate their employees to work
in the Republic of Poland (art. 673 of the Labour Code) are under the same
obligation. The fault of the quoted regulation is that there are no provisions on
the grounds of which agencies of control such as The State Labour Inspection
would be able to inspect if the employees delegating their employees to work
in the Republic of Poland provide them with the working conditions resulting
from the Polish labour law. In practice carrying out the inspection of employment conditions of the employees delegated to Poland is virtually impossible
because the employers delegating the workers are not obliged to appoint their
representative in the Republic of Poland. Neither are they obliged to maintain
the employee’s records. In consequence, it is believed that the protection of
employees delegated to the Republic of Poland is only theoretical.223
222
P. Wą : Delegowanie pracowników do innego państwa celem wiadczenia usług. Warszawa
2011, s. 72.
223
Ibidem.
3 Atypical employment relationships
3.5
141
Atypical employment relationship in Slovakia
In recent years, there has been a continuous discussion about the need to
modernize labour law, not only due to the global economic crisis, but this
modernization should also serve as an effective tool for increasing employment
and competitiveness of employers in the market.224 The European Union has,
therefore, created a new concept of legislation governing the performance of
paid work, which should determine the further development of labour law – i.e.
concept of flexicurity. Within the concept of flexicurity it is necessary to pay
attention to the external numerical flexibility, which is focused, among other
things, on the possibility of concluding the so-called atypical employment contracts.225 These are for example temporary employment, part-time employment,
casual work, agency work, home-based work and telework.226
Given that the Labour Code is a key source for labour relations in the private sector, the Directive 97/81, Directive 1999/70, and Directive 2008/104
were transposed to the Labour Code. Gradual harmonization of the Slovak
labour law with the EU labour law took place even before 2004 – Slovakia’s
accession to the EU. Regarding collective agreements and collective agreements of high level (which are binding only for the contractual parties, usually
at the level of industry, not for the whole territory of the Slovak Republic),
they – due to their mandatory character – provide only partly issues related to
atypical labour relations that must be in accordance with the labour law. It can
be stated that the legislation of atypical employment relationships is changing quite frequently (e.g. enshrinement in law of the duration and options for
prolongation of the contracts of fixed-term employment).
3.5.1 Atypical employment relationships
Atypical employment relationships are based on employment contract. The
Labour Code provides content and formal requirements of the employment
contract in mandatory terms, but it allows the contractual parties to agree on
other requirements, working conditions within its dispositive standards. Agreed
224
Barancová, H.: Možnosti a hranice liberalizácie pracovnoprávnych vzťahov. In: Možnosti
a hranice liberalizácie pracovných vzťahov. – Bratislava: Sprint dva, 2011, p. 9–43.
225
Barancová, H. (50 %), Matlák, J.: (50 %): Atypické zamestnania v pracovnom práve. In: Justičná
revue. – ISSN 1335-6461. – Roč. 62, č. 10 (2010), p. 1049–1061.
226
Dolobáč, M.: In: Dolobáč, M. a kol.: Vybrané otázky sociálneho práva Európskej únie. Košice:
UPJŠ, Právnická fakulta, 2012, p. 72–105.
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working conditions must be negotiated in compliance with generally binding
legal regulations and mandatory standards of labour law.
According to the Section 42 of the Labour Code, the employment is created
under a written employment contract between the employer and employee. The
employer must give one copy of the employment contract to the employee.
From this condition follows the obligation to conclude contracts in writing.
Given that this provision does not contain a clause of invalidity under the Section 17(2) of the Labour Code, any employment contract concluded in other
way than in writing, is also valid.
The employer has to come to agreement with the employee in the employment contract on essential elements, these are type of work, place of work, date
of commencement of employment and wage conditions, only in this case the
employment can be considered to be valid.227
In addition to important content requirements, the employer is obliged to
state also other working conditions, and these are the deadline to pay, working
hours, paid leave and the length of the notice period. If these conditions are
set out in the collective agreement, it is sufficient to include a reference to the
relevant provisions of the collective agreement in the employment contract.
Agreement on probation is a frequent and regular content requirement of
the employment contract and it must be concluded in writing under the sanction of nullity.
The employer and employee may agree in the contract on various conditions
for the performance of paid work within the dispositive labour standards. – e.g.
consent to posting the employee on business trip, other tangible benefits.
3.5.2 Part-time work
In the Slovak Republic the Legislation on part-time employment is enshrined in provision of the Section 49 of the Labour Code. The employee,
who performs a part-time work, is entitled to receive a salary equivalent to
the agreed reduced working time (Section 49 (4) of the Labour Code). This
provision is related also with the provision of the Section 120 of the Labour
Code, governing the salary conditions. Under this provision, the employer
must provide each employee a wage equivalent to at least the minimum wage
determined for degree of difficulty for the work, if the remuneration conditions
are not provided for in the collective agreement.228
227
Barancová, H.: Zákonník práce. Komentár. 2. vydanie. Praha, C. H. Beck 2012, p. 329–342.
228
Barancová, H.: Zákonník práce. Komentár. 2. vydanie. Praha, C. H. Beck 2012, p. 373–378.
3 Atypical employment relationships
143
The principle of equal treatment is enshrined in Section 49 (5) of the Labour Code, under which an employee working part-time cannot be limited
or disadvantaged in comparison with employees working on the established
weekly working time.
The Clause 2 of the Directive 97/81 enables the Member States, after consultation with the social partners and/or the social partners in accordance with
national standards for objective reasons, to totally or partially exclude the employees on part-time working as casual employees from the appliance of this
Directive (e.i. the principle of non-discrimination is broken in this case).229
The Slovak Republic does not recognize the concept of casual work, neither
the Slovak law provides for casual labour, and therefore Slovakia did not applied the exception resulting from the Clause 2(2) of the Directive 97/81.
3.5.3 Fixed-term work
The Section 48 of the Labour Code establishes conditions, under which conclusion of the employment relationship for a definite time is possible. In case
when these conditions are not met, there is applicable irrefutable presumption
that the employment relationship has been concluded for an indefinite time.230
The employment contract for definite time must be concluded in writing
and must include an explicit indication of the duration of the employment
relationship; otherwise the employment relationship has been agreed for an
indefinite time.
The employment for definite time can be agreed for a maximum of three
years (the amendment of the Labour Code, effective from 1st January 2013:
maximum of the two years). The employment for definite time may be extended
or renewed within three years, up to three times (the amendment of the Labour
Code, effective from 1st January 2013: up to two times).
A repeatedly agreed employment relationship for definite time is such an
employment relationship that is to be created prior to expiry of six months after
expiry of the previous employment relationship for definite time, between the
same participants.
A further prolongation or re-conclusion of employment for fixed period of
three years or over three years is possible only for substantive reasons listed
229
Barancová, H.: Pracovný pomer na kratší týždenný pracovný čas v judikatúre Súdneho dvora
ES. In: Justičná revue. – ISSN 1335-6461. – Roč. 61, č. 10 (2009), p. 1206–1211.
230
Barancová, H.: Zákonník práce. Komentár. 2. vydanie. Praha, C. H. Beck 2012, p. 353–372.
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exhaustively in the Labour Code. These reasons are the following (it is necessary to state them in the contract):
a) subsitution of an employee during maternity leave, parental leave, leave
immediately following maternity or parental leave, temporary sick leave
or substitution of an employee who has been released for performance of
public office or office of a trade union in the long term,
b) the performance of works for which it is necessary to significantly increase the number of employees for a temporary period not exceeding eight
months in a calendar year,
c) the performance of works that are dependent on the succession of the seasons, are repeated every year and their performance takes less than eight
months in a calendar year (seasonal work),
d) carrying out works agreed on in the collective agreement.
A further prolongation or re-conclusion of employment for a fixed period
of three years or over three years with the absence of a substantive reason,
and in the case of certain categories of employees listed exhaustively in the
law. Repeatedly conclude, renew employment contracts for a fixed period of
time can therefore be realized with employees such as a university teacher
and a creative employee of science, research and development, it is possible,
even if there is an objective reason based on the nature of work of a university
teacher or a creative employee in science, research and development and it is
established by special provision.
An important provision is the Section 45 (4) of the Labour Code, and it
states that it is not possible to agree on a trial period in case of re-conclusion
of an employment contract for a fixed period of time.
The principle of equal treatment is provided for in Section 48 (7) of the
Labour Code, under which an employee working under an employment contract for a fixed period cannot be disadvantaged or limited, especially when it
comes to working conditions related to safety and health at work, compared
with employees working for an indefinite period.231
3.5.4 Agency work
In the Slovak Republic, agency work has been developing mainly since
2004, after adoption of the Act No. 5/2004 Coll. on Employment Services,
regulating a legal status of the temporary employment agencies.
231
Barancová, H.: Pracovný pomer na určitú dobu v judikatúre Súdneho dvora ES = Fixedterm employment in the case law of the European Court of Justice. In: Bulletin slovenskej
advokácie. – ISSN 1335-1079. – Roč. 15, č. 10 (2009), p. 23–31.
3 Atypical employment relationships
145
In Slovakia, there are currently more than 1000 agencies for temporary
employment and agency work is mainly used in industry, in automotive, machinery and electronics industry, also in the field of logistics and agriculture.
The Section 58 of the Labour Code regulates a temporary assignment of an
employee to a user employer in two forms:
a) through a temporary employment agency (the so-called agency work) or
b) through the employer itself. If the employee is temporarily assigned by the
temporary employment agency, it is in a legal position of an employer.
A characteristic feature for the temporary assignment is that the employee is
employed at the temporary employment agency, with which he/she concluded
an employment contract.232 The employment contract, where the temporary
employment agency undertakes to secure for the employee a temporary performance of work at a user employer and in which also the employment conditions
are agreed with the employee, can be concluded for indefinite time or for fixed
term. If agreed for fixed term, the contract of employment must contain more
detailed conditions of the temporary assignment, pursuant to the Section 58 (3)
of the Labour Code. The employment contract must contain mainly:
name and place of residence of the user employer,
date on which the temporary assignment is to be created,
term of the agreed temporary assignment,
type and place of work,
wage conditions and
conditions of unilateral termination of work performance prior to expiry of
the temporary assignment.
The Institute of a temporary assignment (or so-called “leasing” of the employees) under the current provisions can be used by the employer (not by the
temporary employment agency), who temporarily assigns his/her employees to
work for the user employer, but only if he/she has objective operational reasons
(according to Section 58a (1) of the Labour Code). Precisely this restriction
for objective operational reasons causes in practice many problems, because if
the employer does not have such reasons, de facto, he/she cannot temporarily
assign employees. For the temporary assignment of the employees to another
232
Barancová: Dočasné pridelenie zamestnanca na výkon práce k inému zamestnávateľovi. In:
Personálny a mzdový poradca podnikateľa. č. 13–14 (2006), p. 188–196.
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
employer, the employee must accept a temporary assignment and s/he must
conclude an agreement on temporary assignment with the employer.233
A written agreement on temporary assignment concluded between employer
and employee must contain especially the name and address of the user employer, the date when the temporary assignment starts, the period which the
temporary assignment was agreed for, type of work and place of work, the
working conditions and the conditions of the unilateral termination of employment before the expiry of the temporary assignment.
During the assignment term and on behalf of the employer/the temporary
employment agency, the user employer gives the assigned employee job tasks,
instructions, creates favourable working conditions for him/her, secures occupational health and safety for him/her as for its employees, however, is not
entitled to make any legal actions against the assigned employee. During the
temporary assignment, the employer/the temporary employment agency, that
temporarily assigned the employee, provides the employee with a salary, salary
compensation and travel reimbursement.234
According to the Section 58 (5) of the Labour Code working and remuneration conditions, including the employment of temporarily assigned employees
must be favourable in the same extent as the conditions of an employee of the
user employer or as of an employee in a comparable user employer, unless the
Labour Code provides otherwise.
Under the Section 58 (6) of the Labour Code employment and working
conditions are considered to be the following – working time, rest periods,
holidays, remuneration conditions, health and safety at work, compensation for
accidents at work or occupational disease, compensation in case of insolvency
and protection of rights and claims of temporary workers, maternity protection,
protection of parents and juveniles, law to collective bargaining and conditions
for alimentation.
It is an interesting fact that the restrictions referring to the conclusion of
employments for fixed period do not apply to agency work, i.e., employees of
agencies can conclude contracts for fixed period of time without any restrictions.
233
Barancová, H.: Zákonník práce. Komentár. 2. vydanie. Praha, C. H. Beck 2012, p. 410–417.
234
Barancová, H.: Dohoda o dočasnom pridelení zamestnanca na výkon práce k inému zamestnávateľovi (požičiavanie zamestnancov). In. Barancová, H., Schronk, R.: Pracovné právo.
Bratislava, Sprint 2, s. r. o., 2012, p. 300–304.
3 Atypical employment relationships
147
Section 58a of the Labour Code requires conclusion of a special agreement
of temporary assignment between the temporary assignment agency and the
user employer. In practical application, the temporary employment agency and
the user employer conclude a commercial agreement regulating especially the
financial conditions of the temporary assignment of the employee.
3.5.5 Very atypical contractual agreements
In present days the most common and preferred form of performance of
a paid work is still performance of work in the classic, typical employment
relationship, i.e. in full-time employment for an indefinite period. The Labour
Code, however, offers also other possibilities of work in so-called atypical
employment relationships, including fixed-term employment, part-time employment, home-based work and telework (Section 52 of the Labour Code)235
as well as employment-concluded with a temporary employment agency.
These atypical employment contracts, until recent days considered as modern and flexible forms of employment, but at the moment, which is characterized by ever increasing unemployment, by economic crisis and fear of
employers to hire workers in the classic employment, are already lagging behind the needs of the labour market, and therefore, in order to maintain, respectively, increase employment levels it is necessary to look for other possible
forms of performance of paid work.
Agreements on work performed outside the employment236 (which means
that these employees are not subjects to the provisions of employment, for
example, they are not eligible for leave, meals, rest; in order to increase their
protection there was adopted an amendment, effective from 1st January 2013,
which increases their protection via guaranteeing them the following: rest,
minimum wage) represent complementary employment relationship (i.e. employment relationship in which the employee status is “weaker” than in employment), and which the employer has to conclude only exceptionally for the
performance of their duties or to provide for their needs (Section 223 of the
Labour Code).
The Labour Code provides for three types of agreements on work performed
outside the employment, and these are: the agreement on work activity and
the agreement on student work, their subject is to perform occasional activities
defined by the type of work; and the agreement on performance of work, which
involves work with defined result. These agreements may be considered to be
235
Barancová, H.: Zákonník práce. Komentár. 2. vydanie. Praha, C. H. Beck 2012, p. 383–388.
236
Barancová, H.: Zákonník práce. Komentár. 2. vydanie. Praha, C. H. Beck 2012, p. 905–915.
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
specific legislation in Slovakia and the Czech Republic (with respect to the
common legislation during the existence of the former Czechoslovak Republic).
We can say from the above mentioned that the legislature counts with the
conclusion of agreements on work performed outside an employment relationship (hereinafter the “Agreement”) only in exceptional circumstances, i.e. if
it is a work of small or short extent, or works which are just auxiliary etc.237
The Labour Code regulates three types of agreements to work outside the
scope of employment relationship, namely agreement of performance of work,
agreement of working activity and agreement of student work. Agreements
must be concluded in writing (otherwise are not valid) and no later than on the
date preceding the date of the commencement of work.
The agreement on performance of work must precisely define the work
assignment, remuneration for its completion, the deadline for completing the
assignment and the anticipated scope of assignment unless this results directly
from the work assignment.
The envisaged extent of work (assignment) covered by the agreement on
performance of work may not exceed 350 hours in a calendar year. This extent
also includes work carried out by the employee for the same employer under
another agreement on performance of work. If the employee concludes agreements on performance of work with different employers, the annual threshold
of 350 hours applies to each of these agreements.
According to Section 228a of the Labour Code, agreements on working
activity may be concluded in respect of work that must be defined in terms of
the type of work (i.e. like in an employment relationship). The extent of a working activity must not exceed ten weekly hours (i.e., an agreement on working
activity may be concluded for a maximum of ten hours a week).
Sections 227 and 228 of the Labour Code provide for agreements on student work; this specific form of agreements can be concluded only by natural
persons that have the status of students. Maximum extent of work that may be
agreed under this type of agreement is one half of statutory weekly working
time (the amendment of the Labour Code, effective from 1st January 2013: up
to 20 hours a week). Agreements are currently being used also because of the
fact that within them there are not paid social and health contributions to the
same extent as from employment contract (after 1st January 2013 the legisla-
237
Švec, M: Dohody o prácach vykonávaných mimo pracovného pomeru. In: Švec, M. a kol.:
Kultúra sveta práce – Závislá práca a dohody o prácach vykonávaných mimo pracovného pomeru; Bratislava: Friedrich Ebert Stiftung, zastúpenie v SR, 2012, 122 p.
3 Atypical employment relationships
149
tion will change and paying of these contributions will be in the same extent
as from employment contract, except for seniors and students).238
The Labour Code does not provide for other non-standard types of employment.
3.5.6 Paid work – civil-law or commercial law agreement, non contract
At present, we see a negative phenomenon when employers, in order to save
labour costs and costs related to the provision of employment of employees,
cover the subject of their business activities with civil or commercial relationships instead of the usual employment relationship.
Performance of paid work is covered by various types of contracts within
civil law or commercial law instead of an employment contract. In this case
we can talk about dissimilation of legal act.
Natural persons engaged in paid work for an employer have only a formal
status as freelancers, entrepreneurs. Their work for the operator in favour of
whom they perform an activity shows signs of a dependent work. This is the
so-called black labour, to which there is forced a substantial portion of “false”
entrepreneurs. This leads to a disguising of the real employment relationships.
Prohibition of a “black labour” is regulated by the Act 82/2005 Coll. on
Illegal Work and Illegal employment and on amendments to certain laws.
3.5.7 Posting of workers
In case of labour relations with a foreign element (when there is a conflict of
laws) with relation to the EU there should be applied the principle of primacy of
EU law and it will be necessary to follow the Regulations No. 593/2008/ES on
the law applicable to contractual obligations (Rome I Regulation). Since within
the posting there can arise a conflict of various laws, in the case of working
conditions of the so-called hard core there takes precedence the legislation of
the Directive 96/71/EC instead of the collision law (if the Directive 96/71/EC
did not prevail, usually there would be preferred the legislation of the State in
which the work is usually done).
Therefore, in case of posting,239 the employment relationship in accordance with Article 3(1) of the Directive 96/71/EC (“PWD”) in so-called hard
238
Lacko, M.: Právna úprava dohôd o prácach vykonávaných mimo pracovného pomeru. In: Možnosti a hranice liberalizácie pracovných vzťahov. – Bratislava: Sprint dva, 2011, p. 183–190.
239
Barancová, H.: Dočasné vysielanie zamestnancov v rámci EÚ. In: Barancová, H. a kol.: Nadnárodný pohyb zamestnancov a služieb. Bratislava: Sprint dva, 2011. – p. 72–97.
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core of working conditions is provided for by the law of the State in which
the employee is posted (regardless of what law was chosen by the parties of
an employment relationship, respectively, which law would be applicable in
case of the absence of a choice of law). However, over the range of legislation
on working conditions of the so-called hard core (enshrined in the Directive
96/71/EC), the employment relationship (and therefore also the working conditions under which work is performed) will be governed also by the conflict
law.240
3.5.7.1 Posting of employees to Slovakia
Posting of employee’s 241 is governed by the provisions of Section 5 (2) to
(6) of the Labour Code, which specifically regulate the posting of employees
from other EU member state to the territory of Slovakia. A posted employee
is the employee who, in a specified period performs work in the territory of
a Member State other than the State of his normally performed work.
The way by which an employee of a Member State is posted to our territory,
is not governed by our law, but given that a posted employee remains employed
by his legal employer, manner and terms of posting are assessed under the law
of the posting State. However, in relation to working conditions of the so-called
hard core it is necessary to examine the legislation of the host country as well
as of the sending State.
According to Section 5 (2) of the Labour Code labour-law relations of
employees who are posted by their employers for the performance of work to
other employers from a European Union Member State territory to the territory
of the Slovak Republic shall be governed by Labour Code, special regulations
or a relevant collective agreement, and which regulate
a) the length of the working time and rest periods,
b) the length of vacation,
c) minimum wage, minimum wage claims and overtime wage,
d) health and safety at work,
e) working conditions for women, juvenile and employees caring for children
younger than three years of age,
240
Bulla, M.: The impact of the Rome 1 regulation on the legal protection of employees within
employment relations ; In: Cofola 2010: the conference proceedings. – Brno: Masarykova
univerzita, 2010. – ISBN 978-80-210-5151-5. – S. 408–427.
241
Lacko, M.: Sociálna ochrana dočasne vyslaných zamestnancov. In: Barancová, H., Lacko, M., Olšovská, A., Randlová, N., Škubal, J: Vysielanie zamestnancov. Plzeň, Vydavatelství
a nakladatelství Aleš Čen k, s. r. o., 2008, p. 145–171.
3 Atypical employment relationships
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f) equal treatment for men and women and prohibition of discrimination,
g) working conditions of temporary agency work.242
The provisions of Section 5 (2) b) and (2) c) shall not be applied in cases of
initial assembling, or first installation of goods which are the main component
of the contract for the delivery of goods, which are necessary in order to start
using the goods delivered, and which are executed by qualified employees
or specialists of the supplier, unless the time of delegation of the employee
exceeded eight days within the last 12-month period from commencement
of his/her delegation; this shall not apply to the following work: excavation,
earthmoving, actual building work, assembly and dismantling of prefabricated
elements, fitting out or installation, alterations, renovation, repairs, dismantling,
demolition, maintenance, upkeep, painting and cleaning work, improvements.
Even in case of posting of workers from EU member states to the territory
of the Slovak Republic there applies the principle of benefit to the employee.
If the legislation of the posting Member State of the EU was more beneficial
and better regulated the working conditions than the employment legislation
in the Slovak Republic, then the favourable legislation of the posting Member
State of the EU would be applied. Convenience of working conditions under
Section 5 (3) of the Labour is assessed separately for each employment claim
(e.g., length of leave, minimum wage, etc.).
In case of posting employees to Slovakia, the Slovak Labour Inspection
(labour inspectorates in the respective district cities) is responsible for checking
the compliance with the Slovak provisions. They shall inform about the outcome of the investigation to the National Labour Inspectorate, which transmits
the information to the liaison office in the country from which the employee
is posted.
National Labour Inspectorate plays an important role. Under the provisions
of the Article 4 of PWD, Member States shall provide in accordance with their
national law one or more liaison offices. They are responsible for the mutual
cooperation in the field of posting of workers and in this context; they are responsible especially for the publication of the working conditions set out in the
hard core. In the case of the Slovak Republic the National Labour Inspectorate
as a liaison office is designated by Act No. 125/2006 Coll. on Labour Inspection (Section 6 (1) m)).
242
Križan, V.: Vybrané aspekty dočasného vyslania zamestnancov v rámci poskytovania služieb.
In: Cofola 2009: the conference proceedings. Brno: Masaryk University, 2009, p. 632–646.
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Within the free movement of services the employees can be posted to any
EU member state with a purpose of providing a service without any administrative restrictions, the employers are obliged to announce the posting of the
employees, as they are also obliged to monitor the mobility of the own staff
in the EU.
If the employee is posted from another EU Member State to the territory
of the Slovak Republic, this obligation is meant nor for the posting “foreign”
employer, but the domestic legal or natural person to whom the employee is
posted (with whom the employer has concluded an agreement governing the
posting of an employee). Posting – its beginning and end – is notified in writing,
in duplicate on the information card, delivered in person or by mail to the Office
of Labour, Social Affairs and Family in the district where the employee performs work – not in the seat of the domestic “user” employer (Section 23a (5)
of Act No. 5/2004 Coll. on Employment Services). The obligation to inform
must be fulfilled within 7 working days. For control purposes by the Office of
Labour, Social Affairs and Family or by the Labour Inspectorate, the employer
retains the information form certified by the Office of Labour, Social Affairs
and Family. In the case when the obligation to inform is not fulfilled, it is considered as violation of employment-law provisions (may be fined by the Labour
Inspectorate of up to EUR 33, 193.91).
In general, the rules of proceedings of judicial protection of employment
rights in the Slovak Republic are provided by the Act No. 99/1963 Coll. on
Civil Procedure, as amended. Due to the specific nature of posting in case when
the court, which will be authorized to resolve the dispute, is determined (i.e.,
court of an EU Member State), it should proceed in accordance with the Article
6 of the Directive 96/71/EC, respectively, under the Brussels I Regulation According to the Article 6 of the Directive 96/71/EC, the posted employee can
direct their claim to the Slovak general court.
3.5.7.2 Posting of employees from Slovakia
In case of posting of employees from the Slovak Republic to another EU
Member State, the working conditions of employees are governed by the socalled hard core of the relevant labour legislation of the host country. The employer must therefore have information on labour law, working conditions, of
the state where the employee is posted. For the assessment of the advantages
of working conditions of the hard core, it will be maybe necessary to apply the
Labour Code in some cases. In relation to the mode of posting, it will also be
necessary to be based on the Slovak employment legislation.
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The process of posting of employees is provided by the Directive 96/71/EC
only in general terms, it states three models of posting. The Labour Code in
the provisions of the Section 5 does not determine how an employee can be
posted to another EU Member State, but it only states in Section 5 (6) that it
is allowed to post the employees in the EU Member State in accordance with
Section 58 of the Labour Code.
With regard to this, it should be noted that it is not allowed to unilaterally
change the place of work and type of work of the employee (except as provided
for in the Labour Code, for example: Reassignment of an employee pursuant to
Section 55 of the Labour Code, Posting on a business trip without the consent
of the employee in accordance with Article 57 of the Labour Code). Given that
in case of posting, the working conditions significantly change, the consent of
the employee is necessary.
We can say that it is necessary to realize the posting under the agreement
of both parties of the employment relationship. The Labour Code does not,
however, determine a typical agreement on posting of employee that is why
the employee’s posting agreement can be provided directly in the employment
contract or in the agreement on change in working conditions.
In addition to the agreement with the employee, the employer enters into a
legal agreement with the economic employer under which there are established
the conditions of service delivery as well as the price for the service. Given
that legal employer is responsible for the working conditions of the so-called
hard core, provisions governing the working conditions are usually part of the
agreement (i.e. so the posting employer knows, which working conditions of
posted employees must be guaranteed in the user employer’s).
The employee performs work in the employment in the conditions, which
the employee agreed on in the contract and which directly result from the provisions of the Labour Code and other labour laws, regardless of whether the
employer and employee have previously agreed on them.
If the employer agrees with an employee within the duration of the employment on the fact that they want to change the contents of the employment relationship, i.e. change working conditions, rights and obligations arising under
employment, they may do so on the basis of the agreement on the change in
working conditions concluded under Section 54 of the Labour Code. Participants of the employment can conclude the Agreement on change in working
conditions at any time, and several times during the duration of employment.
From the above mentioned follows that there are no restrictions for the
employer and the employee for the entrance into an agreement at any time and
under which the employee can be posted to work in another EU Member State.
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The employer should agree with the employee in the agreement, under which
the posting will be realized, on the specific terms of posting, i.e. the duration
of posting, working conditions (especially conditions of the so-called – hard
core), the possibility of travelling to the employee’s residence, etc.
Regarding the contents of the agreement on change in working conditions,
the Labour Code gives both parties of employment space for freedom of contract (of course only if there is compliance with mandatory provisions of the
labour law). Labour Code requires the agreement on change in working conditions be in writing. Given that there does not exist any clause of invalidity, oral
agreement on change in working conditions or implied contract is also valid
(with the consent of the employer, the employee starts to perform other work
without the possibility of being heard).
In practical application there are used different terms for the change in working conditions under the agreement of the employment parties, for example:
addendum to the employment contract, supplement or modification of the employment contract.
The possibility of posting an employee to an EU Member State via the Institute of temporary assignment is governed by the Section 5 (6) of the Labour
Code, according to which if an employee is posted in accordance with Section 58 of the Labour Code to an EU Member State, the terms and conditions
of employment are governed by the law of the State in whose territory the work
is done (see comments on agency work).
3.5.8 Summary
At present, the most common and preferred form of performing paid work
is still the performance of work in the classic, typical employment relationship, i.e. in employment for an indefinite period of time and at full time. However, Labour Code offers other possibilities of work in the so-called atypical
employment relationships, including the employment of fixed-term, part-time
employment,243 homework and telework or employment relationship with
a temporary employment agency. For non-standard employment relationships
can be considered agreements concluded on the basis of work performed outside the employment.
It can be stated that over time the number of atypical employment contracts
is increasing, what subsequently increases the labour market flexibility. At the
same time there is also a negative phenomenon, for example, it leads to the
243
Švec, M.: Niektoré atypické formy výkonu závislej práce. In: Flexicurita pre 21. storočie –
šance a riziká. Bratislava: Veda, 2012, p. 120–132.
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abuse of agreements on work performed outside employment, because within
this agreement the employees have weakened status compared with employees
in employment (the cost of this labour is cheaper and at the same time it can
be easier to terminate the employment relationship with such employees), or
in agency work (within which legislation allows relatively easy way to agree
on termination of temporary assignment and if there is agreed employment
for fixed period of time, the end of the temporary assignment ends also the
employment).
3.6
Conclusion
In recent years, there has been a continuous discussion about the need to
modernize labour law in the countries of Visegrád 4 and other member states
of the EU, not only due to the global economic crisis, but this modernization
should also serve as an effective tool for increasing employment and competitiveness of employers in the global market – in a competition of rapidly developing regions of Far East, India and South America.
The world economic recession commencing in autumn 2008 could be instantly felt in the labour market. Most states were unable to get out of the
deep recession, even though they introduced significant employment policy
measures. For example, in Hungary the public employment programs (Way
to Work Program) became the dominant means to treat the problem. However
they unfortunately did not lead to permanent results.
The European Union has, therefore, created a new concept of legislation
governing the performance of dependant work, which should determine the further development of labour law – a concept of “flexicurity”. Within the concept
of “flexicurity” it is necessary to pay attention to the external numerical flexibility, which is focused, among other things, on the possibility of concluding the
so-called atypical employment contracts, e.g. temporary employment, part-time
employment, casual work, agency work, home-based work and telework.
Given that the Labour Code is the key source for labour relations in the
private sector in all the V4 coutries. The Directive 97/81, Directive 1999/70,
and Directive 2008/104 were transposed to the Labour Code in each of the V4
countries. Gradual harmonization of the national labour law with the EU labour
law took place even before accession of each single country into the EU. The
legislation of atypical employment relationships is changing quite frequently
(e.g. enshrinement in law of the duration and options for prolongation of the
contracts of fixed-term employment).
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At present, the most common and preferred form of performing paid work
is still the performance of work in the classic, typical employment relationship,
i.e. in employment for an indefinite period of time and at full time. However,
national labour law offers other possibilities of work in the so-called atypical
employment relationships, including the employment of fixed-term, part-time
employment, work from home and telework or employment relationship with
a temporary employment agency. For non-standard employment relationships
can be considered agreements concluded on the basis of work performed outside the employment.
The total number of atypical employment contracts is increasing (as well
their relative representation in the number of employment contracts), what
subsequently increases the labour market flexibility. At the same time there
is also a negative phenomenon, it leads to the abuse of agreements on work
performed outside employment, because within this agreement the employees
have weakened status compared with employees in employment (the cost of
this labour is cheaper and at the same time it can be easier to terminate the employment relationship with such employees), or in agency work (within which
legislation allows relatively easy way to agree on termination of temporary
assignment and if there is agreed employment for fixed period of time, the end
of the temporary assignment ends also the employment).
“The workplace is changing and the employment laws must change as well.
Workers today are forced to bear many new risks in the labour market: risks
of job loss, wage variability, benefit gaps, skill obsolescence, and intermittent
prolonged periods of unemployment. Our labour laws do not address these
problems, either for regular or for atypical workers. The changing nature of
work creates new opportunities for workers, but also new types of vulnerabilities. As employer-employee attachment becomes episodic rather than long term,
the problem of transitions has risen to the fore. The challenge for regulation
today is not to recreate the era of worker-employer attachment, but to find
a means to provide workers with support structures to enable them to weather
career transitions.”244
244
K. V. W. Stone: Legal Protections of Atypical Employees: Employment Law for Workers Without
Workplaces and Employees Without Employers. Berkeley Journal of Employment and Labour
Law No. 27, 2006, p. 251–286.
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4.1
Introduction
During the seventies, which can be called the golden age of European labor
law, adopted three directives, which aim was to protect employees from the operation of a common market within the Community has not brought with them
only expand the market for European companies, but also caused a substantial
increase in competition Member States of the European Union in the market
space. The reasons for the adoption of directives and the larger market with
an increase in the extent to which companies will have to adapt, which means
restructuring, mergers, takeovers, bankruptcies and mass layoffs. Enforce the
idea that the employee did not pay the price for the establishment of a common, larger market, but should be protected from social consequences of these
changes. Based on this idea have been proposed three directives which the
Council has actually adopted. These guidelines relating to collective redundancies, transfer of undertakings or parts thereof and the employer’s insolvency.
A common feature of all three directives is that employer’s right to decide on
the economic changes will retain and deal only the social consequences of
restructuring.
4.1.1 Safeguarding employees’ rights in the event of transfers
of undertakings
These rights are covered by Council Directive 2001/23/EC of 12 March
2001 on the approximation of the laws of the Member States relating to the
safeguarding of employees’ rights in the event of transfers of undertakings,
businesses or parts of undertakings or businesses. The aim of this Directive is
to protect employees in the event of a change of employer following a transfer
of undertaking. It specifies the rights and obligations of employers affected
by the transfer.
The transfer of an undertaking or an establishment may be the result of
a legal transfer or merger. Following a transfer, the transferee of the undertaking
becomes an employee of the undertaking transferred by the transferor.
Due the defnitions in Directive, transfer of an undertaking is the transfer of
an economic entity that retains its identity, defined as an organised grouping of
resources that has the objective of pursuing an economic activity. Transferee is
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any natural or legal person who becomes the employer in respect of the transferred undertaking. Transferor is any natural or legal person who, by reason of
a transfer ceases to be the employer in respect of the transferred undertaking.
In these circumstances, the rights and duties of the employment contracts
of the employees from the transferred undertaking will be recognised. This
Directive applies to all types of employment relationships, without distinction
in relation to:
the number of working hours, performed or to be performed,
the type of employment contract (undetermined, fixed-duration, or temporary).
The Directive applies to all undertakings, public or private, which are engaged in economic activities whether or not they are operating for gain.
4.1.1.1 Transfer of employment relationships
The rights and obligations of employees are maintained where an undertaking is the subject of a transfer. These rights and duties are connected with an
existing employment contract or relationship.
In addition, the transfer of an undertaking is not grounds for dismissal. Dismissals may only take place for economic, technical or organisational reasons.
Member States may require that the transferor notifies the transferee of all
the rights and obligations which will be transferred. However, they are still
transferred even if this communication is not carried out.
In principle, the working conditions of the employees are maintained for
the duration of the collective agreement of the undertaking. However, these
conditions may be amended, at least one year after the transfer of the undertaking and if the Member States so authorise.
In addition, in principle, the rights and obligations of the employees, which
exist under the complementary social protection schemes, are not transferred.
However, Member States take measures to protect the rights to old-age benefits
acquired under these schemes.
The rights and obligations of employees are not preserved where the transfer is undertaken as part of insolvency or bankruptcy proceedings. To prevent
the misuse of insolvency proceedings in order to deprive employees of their
rights in the case of a transfer, Member States may take appropriate measures
in order to prevent this type of practice.
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4.1.1.2 Employee information and consultation
During a transfer, employee representatives shall maintain their function
until their reappointment is possible. Employees must continue to be represented, including in the case of bankruptcy or insolvency proceedings. In addition, trade union representatives are consulted before measures concerning
employees are adopted.
Employees are informed of the transfer conditions either directly or through
the intermediary of their representatives. In particular, this information concerns the date or proposed date of the transfer, the reasons for the transfer,
the legal, economic and social implications, and any measures envisaged in
relation to the employees.
If an arbitration board exists in the Member State concerned the information
and consultation requirements may be limited to cases where the transfer gives
rise to disadvantages for a considerable number of the employees.
Lastly, the rights of trade union representatives are preserved even if their
term of office expires as a result of the transfer of the undertaking.
4.1.2 Protection of employees in the event of the insolvency
of their employer
This issue is covered by Directive 2008/94/EC of the European Parliament
and of the Council of 22 October 2008 on the protection of employees in the
event of the insolvency of their employer. The Directive sets out to guarantee
payment of employees’ remuneration if their employer is in a state of insolvency. It requires Member States of the European Union (EU) to establish guarantee institutions and lays down procedures which apply when cross-border
employers become insolvent.
This Directive protects employees who have a claim for unpaid remuneration against an employer who is in a state of insolvency.
The state of insolvency follows a request made under judicial proceedings
involving the partial or total divestment of the employer’s assets and the appointment of a liquidator, where the competent judicial authority has:
decided to open proceedings or
established that the employer’s undertaking or business has been definitively closed down and that the available assets are insufficient.
Member States of the European Union (EU) may, by way of exception,
exclude claims by certain categories of employee if other forms of guarantee
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offer them equivalent protection. Member States may also exclude domestic
servants employed by a natural person and share-fishermen from the protection
afforded by the Directive.
However, apart from these exceptions, all employees may benefit from this
Directive irrespective of the duration of the contract of employment or the employment relationship. It therefore applies to part-time employees, fixed-term
contracts and temporary contracts.
4.1.2.1 Guarantee institutions
Member States shall establish guarantee institutions which guarantee payment of employees’ claims and, where appropriate, severance pay on termination of employment relationships. They may set ceilings on the payments made
by the institution, which must be sufficiently high to contribute to the social
objective of the Directive.
The minimum period of remuneration by the guarantee institution shall be
calculated on the basis of:
a minimum reference period of six months, giving rise to the payment of
claims for at least three months,
a reference period of at least eighteen months, giving rise to the payment of
claims for at least eight weeks. In this case, those periods which are most
favourable to the employee shall be used for the calculation.
Employers shall contribute to the financing of these institutions, unless it
is fully covered by the public authorities.
4.1.2.2 Social security
Member States may stipulate that the payment guarantee does not apply to:
social security contributions,
contributions under supplementary company or inter-company pension
schemes outside the statutory social security schemes.
Moreover, if the employer has not paid the compulsory social security contributions but they have been deducted from the remuneration paid, employees
shall enjoy their full benefit entitlement in respect of the insurance institutions.
The interests of employees are protected in respect of old-age benefits,
including survivors’ benefits, under supplementary pension schemes. This pro-
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tection also applies to employees who left the business before the insolvency
occurred.
4.1.2.3 Transnational situations
If the insolvent employer operated in the territories of at least two Member
States, the authority responsible for meeting claims shall be the one in the
country where the employee habitually worked.
Similarly, the extent of employees’ rights with respect to guarantee institutions shall be determined by the national law applying to the guarantee institution.
4.1.3 Collective redundancies
Issue of collective redundancies is covered by Council Directive 98/59/EC
of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies. This Directive requires employers to consult
staff representatives in the case of collective redundancies. It specifies the
points which these consultations must cover and the useful information which
the employer is required to provide during the consultations. In addition, the
Directive establishes the procedure and practical arrangements for collective
redundancies.
The Directive shall not apply to:
collective redundancies effected under contracts of employment concluded
for limited periods of time or for specific tasks except where such redundancies take place prior to the date of expiry or the completion of such
contracts,
workers employed by public administrative bodies or by establishments
governed by public law,
the crews of seagoing vessels.
4.1.3.1 Consultations
Any employer contemplating collective redundancies must hold consultations with the workers’ representatives with a view to reaching an agreement.
These consultations shall, at least, cover ways and means of avoiding collective
redundancies or reducing the number of workers affected, and of mitigating the
consequences by recourse to accompanying social measures aimed at redeploying or retraining those workers made redundant.
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4.1.3.2 Information to be provided by the employer
The Directive lays down that Member States may make provision for
workers’ representatives to call on the services of experts in accordance with
measures in force at national level. The employer is to provide workers’ representatives with all relevant information during the course of the consultations
and, in any event, is to notify them of the following in writing:
the reasons,
the period during which redundancies are to be effected,
the number and category of workers normally employed,
the number to be made redundant,
the criteria used to select those workers to be made redundant,
the method used to calculate compensation (where applicable).
4.1.3.3 Procedure for collective redundancies
The Directive lays down the procedure to be followed:
The employer notifies the competent public authority in writing of any
projected collective redundancies. This notification must contain all the
relevant information concerning the projected redundancies and consultations held, except for the method used to calculate compensation. However,
where the cessation of activity is the result of a judicial decision, notification is only necessary at the express request of the authority.
The employer forwards a copy of the notification to the workers' representatives, who may send comments to the competent public authority.
Collective redundancies take effect at the earliest 30 days after the notification; the competent public authority uses this period to seek solutions.
Member States may grant the public authority the power to reduce this
period or to extend it to 60 days following notification in cases where the
problems cannot be resolved. This is not compulsory for collective redundancies following a cessation of activity resulting from a judicial decision.
Wider powers of extension may be granted. The employer must be informed
of any extension and the grounds for it before expiry of the initial period.
4.2
Restructuring of Enterprises in the Czech Republic
In the process of restructuring of the enterprise, i.e. activities which are
fundamentally changing the character of the business of the enterprise, there
are phenomena, which can have damaging consequences for the employee.
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163
Optimization of costs or change in business strategy, which usually are a means
to achieve the objectives of the restructuring, can ultimately lead to deterioration in the situation of the employee. Primarily for these reasons, it is necessary
to point out and emphasise on the rights that workers have in connection to
change the entity of the employer.
4.2.1 The legislation
The necessary protection of employee during changes on the side of the employer relies primarily on the provisions of § § 338–345 of the Act No. 262/2006
Coll., Labour Code, as amended (hereinafter referred to as the “Labour Code”).
The interpretation of these provisions must be carried out in accordance with
the implemented Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of the
rights of employees in the event of transfer of undertakings, businesses or parts
of plants (hereinafter referred to as “Directive 2001/23/EC”). The above provisions of the Labour Code, however, are not the only legislation reflected on the
transition to the rights and obligations of labour relations. Other legal sources
are Act No. 513/1991 Coll., Commercial Code, as amended (hereinafter referred
to as the “Commercial Code”), Act No. 125/2008 Coll., Act of Transformation
of Commercial Companies and Cooperatives, as amended (hereinafter referred
to as “Act of Transformation”), law No. 182/2006 Coll., on Bankruptcy Law
and the Ways of its Solution, as amended (hereinafter referred to as “Insolvency Law”), the Act No. 118/2000 Coll., on the Protection of Workers at the
Employer’s Insolvency (hereinafter referred to as the “ZoZPNZ“), procedural
code – Act No. 99/1963 Coll., Code of Civil Procedure, as amended, (hereinafter referred to as “Civil Procedure”) or in the law No. 26/2000 Coll., the Act
on Public Auctions, as amended (hereinafter referred to as the “Law on Public
Auctions”).
4.2.2 Ways to transition the rights and obligations
of the industrial relations
The change of the entity of employer and the subsequent transfer of rights
and obligations arising from employment relationships may traditionally be
based either on the same expression of the will with another entity, or in enforcing (or performance) of legal obligations. The transition occurs always in the
line of the employer A – the employer B, when both entities shall be eligible
for employment. The transfer of rights in the line of employee A – employee B
are excluded (forbidden). In the case of the employee’s death his or her em-
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ployment relationship terminates245 unable to take this employment relationship in the probate proceedings (certain claims arising from an employment
relationship, of course, are subject of succession – for example, the financial
rights of employees).246 The transition to the rights and duties may occur only
on grounds of an act (the Labour Code or according to special regulations), in
following events:
1. the contract of sale of the company, the lease contract to the company – both
edited in the Commercial Code, or
2. merge (merging or fusion), distribution (demerger or spin-off), the transfer
of assets to the partnership – all within the Act of Transformation,
3. solution of bankruptcy within the bankruptcy proceedings (reorganization),
4. auctioning of a company as a form of enforcement of decisions.
If transferred the activities of the employer or the employer’s tasks, authomatically transferred the rights and obligations of labour relations to the full
extent.247
The tasks or activities of the employer shall be, in particular, tasks related
to the production or the provision of services and similar activities according
to the specific law that legal or natural person shall carry out in establishments
intended for these activities or on places of their usual performance under his
own name and on his own responsibility. Irrespective of the legal reason for
the transfer, and of whether there is a transfer of ownership, the taking – over
employer is the legal or natural person who qualifies as an employer to continue to carry out the tasks or activities of an employer or in the activities of
a similar type.248
4.2.3 Transfer of some employees
It is conceivable that not always all employees of the employer A become
subject of transition to the employer (B).
In case of transfer of part of an employer or part of the tasks or activities
of an employer to a taking – over employer, shall devolve on the taking – over
employer employer’s rights and obligations only to those employees who had,
at the date of transition their permanent workplace in the transferred portion of
the employer (certainly not those employees who were there only temporarily
245
§ 48 of the Labour Code.
246
§ 328 of the Labour Code.
247
§ 338, par. 2 of the Labour Code.
248
§ 338, par. 3, of the Labour Code.
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transferred or were sent on a business trip), or alternatively to those employees who were performing work tasks on the basis of the agreements on work
performed outside of employment.249
4.2.4 Effects of the transfer
At the moment, when the new employer enters into the rights and obligations of the previous, is obliged to continue the previous activities without
interruption. Takes over its all rights and obligations that apply to individual
employees (wage claims, claims arising from accidents at work and occupational diseases etc.) At the same time, however, the taking – over employer has
the same rights and duties within the scope of the Labour Code as the previous
employer (e.g. giving instructions, create and change internal rules, dismiss
redundant employees, etc.).
The question is, to what extent can the taking – over employer change the
agreed rights, such as the specific amount of salary in case of transition of
employees paid with wages or salary shall be set according to the salary scale
applicable to a different employer than the taking – over employer. Also in
this case, the principle of equal treatment (equal pay for equal work or work
of equal value) is applicable. As regards salary, then it is possible to conclude
that the salary, the employer shall determine according to the current Labour
Code and the appropriate government regulations – only within the following
limits shall apply to the adjustment in the collective agreement, internal rules
or the autonomy of the parties to an employment relationship (this view was
confirmed by the judgment of the Court of Justice of the European Union of
November 11th 2004, C-425/02Delahaye,).250
4.2.5 Information duty
Before the date of entry into force of the transition of the rights and obligations of the labour relations to other employers are the employer and the taking – over employer be obliged, sufficiently in advance, no later than 30 days
before the transition the rights and obligations to another employer, to inform
the trade union organization and the works council of the fact and to discuss
with them in order to reach a consensus. In the event that the employer has not
a trade union nor works council, he is obliged within the same period to inform
the employee that he or she is touched with the transfer.
249
B lina, M. et al.: The Labour Code, Comment, First Edition, Prague, C. H. Beck, 2012. p. 1234.
250
B lina, M. et al.: The Labour Code, Comment, First Edition, Prague, C. H. Beck, 2012. p. 1233.
166
a)
b)
c)
d)
Implementation and Enforcement of EU Labour Law in the Visegrad Countries
The subject of the negotiations is
set or proposed date of the transfer,
reasons for the transfer,
legal, economic and social implications of the transfer for the employees,
proposed measures in relation to employees.
If no agreement between the employer and the employee or employees’
representatives, it does not prevent the validity of the transfer of rights and
duties; this does not prevent the legal act or legal fact that is to occur in the
context of the transfer of rights and obligations of labour relations.
Penalties for non-compliance with consultation and information of employers is not the private – law one (invalidity), but can only be considered an
administrative tort and therefore a cash fine.
4.2.6 Deterioration of working conditions
In case there is a significant deterioration in their working conditions employees are given in § 339a of the Labour Code option of defense. In this case,
their employment terminated via notice or via an agreement of termination
employment to bring an action to the court within 2 months from the date of
entry into force of the transition of the rights and obligations of labour relations. The action begs the court determine the termination of employment was
due to a significant deterioration of working conditions in the context of the
transition, and to place a duty to severance pay.
4.2.7 Collective redundancies
In the context of the harmonization of the Czech legislation with EU law has
been inserted in the Labour Code, the provisions of §§ 62–64, which regulate
the issue of mass dismissals. Mass dismissal is defined in accordance with the
EC Directive 75/129/EEC, as amended by Directive 92/56/EEC, such as termination of employment relationships in the period of 30 calendar days on the
basis of the notice given by the employer or an agreement due to organizational
changes [i.e. § 52 a)–c) of the Labour Code]. To reach a collective character,
redundancies must concern certain number of dismissals at one employer. This
number is controlled by the size of the employer, or the total number of employees employed by the employer, and shall be at least:
a) 10 redundancies at employers giving a job to 20–100 employees, or
b) 10% of the employees at employers giving a job to 101–300 employees, or
4 Restructuring of enterprises
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c) 30 employees in the case of the employers giving a job to more than 300 employees.
Collective redundancies means for the employer further obligations which
have, in particular, in relation to the trade unions, to the works council and the
Labour Office. Before dismissal of the individual employees, the employer is
obliged, in particular, at least 30 days in advance, in writing, inform the trade
union organization or works council about its intention, and to discuss with
them in order to achieve compliance, in particular, measures to prevent or limit
the collective redundancies and mitigate its adverse effects. At the same time,
the employer shall also inform the competent authority of the work (Labour
Office), including information about the reasons for the measure and the total
number of employees covered by these measures, and their structure.
The aim of the negotiations of the employer with the trade union or the
works council is to achieve compliance, i.e. finding mutually acceptable conditions, for which the projected collective redundancies. On the other hand,
the fact that it will not be achieved, it has no legal significance for the validity
of the dismissals. Similar consequence has employer’s failing in due time to
inform and discuss the mass dismissals with a trade union or works council,
and to inform the Labour Office.
Once the employer’s decision regarding collective redundancies made is
required to deliver a written report on the Labour Office, i.e. its decisions on
collective redundancies and the results of negotiations with the trade unions
or works council.
Employers, which do not have trade unions, nor the works council, have
the obligation to inform the above and discuss in relation to each individual
employees touched with mass dismissals.
A strong enforcement sanctions can be seen in the rule set in § 63 of the
Labour Code that the notice period shall not terminate earlier than 30 days
after the employer’s duty to inform the Labour Office fulfilled. However, if the
employee declares he or she does not insist in the extension of the employment
relationship, the employment relationship comes to an end in the usual way,
that is within the expiry of the period of notice.
4.2.8 Reorganization
The insolvency law regulates the concept of reorganization. Under § 316
par. 1 of the Insolvency Act, it means a gradual satisfaction of creditors’ claims
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
while preserving the debtor’s business, secured by measures on the reorganization of the company under a court-approved reorganization plan while checking
its execution by creditors. For the debtor is significant that unless the insolvency court rules otherwise,251 is during reorganization entitled to dispose of
the estate and in relation to employees still act as their employer. Naturally, all
under the supervision of the insolvency administrator. Logically, during the
reorganization have special arrangements claims of managers who have dispositive authority. These claims can only be satisfied to the amount determined
and approved by the insolvency administrator and the creditors’ committee.
For employees, this way of dealing with the debtor’s bankruptcy is useful
especially because there is a chance of continued operation on the basis of the
reorganization plan and, therefore, “a kind of” job security.
4.2.9 Protection of employees at employer’s insolvency
Until 2000, the only way in which employees could seek satisfaction of
their outstanding wage claims was that under bankruptcy proceedings. Very
lengthy procedure of bankruptcy proceedings represented a great problem
and an obstacle in proper alimentation function of wages, because basic wage
claims of employees could not be adequately satisfied in due time. As an expression of harmonizing the Czech legislation with community law, the Act
No. 118/2000 Coll., on the Protection of Workers at the Employer’s Insolvency
(hereinafter referred to as the “ZoZPNZ“), was passed, which was in response
to the Council Directive 80/987/EEC of 20 October 1980 on the Protection of
Employees in the Event of Insolvency of the Employer. The aim was to provide
employees, employers who fail to pay wages, legal instrument allowing at least
partially satisfy their wage demands and ensure their protection in cases where
the employer has failed to fulfill one of its primary duties legally guaranteed
by the Charter of Fundamental Rights and Freedoms, to provide them a wage
for their work.
According to § 3 ZoZPNZ the employer is insolvent if it did not satisfy the
due wage claims of employees the day following the date on which it was filed
in a competent court for a declaration of bankruptcy. In accordance with the
adoption of the new bankruptcy law is thus the employer found insolvent day
after the request to open insolvency proceedings, if dissatisfied due to wage
demands of its employees. Both conditions must be met cumulatively.
251
§ 332 par. 1 of Act No. 182/2006 Coll. Bankruptcy and its solution (the Insolvency Act), as
amended.
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In this case, the employee is entitled therefore to meet their wage claims
payable from the Labour Office, if these claims at his written request apply.
As a guarantee institution in the Czech Republic, whose creation required the
above Council Directive on the protection of employees in the event of insolvency of the employer, the legislature designated Labour Offices. Directive
mentioned in Article 5 provides that Member States may provide details of
organization, financing and operation of the guarantee institutions. Competent
authority of the work is then Labour Office in whose jurisdiction the registered
office of the employer or place of business or residence, if a natural person.
For employees it is sufficient if an application is made to any Labour Office
which shall immediately forward to his application to the competent authority.
Insolvency court when filing an insolvency petition, the competent labor
office must be informed about the opening of insolvency proceedings by the
court. Consequently, within five days, the Labour Office put up on the bulletin
board information about the employer, the employee can use their wage demands together with a deadline by which they can do so. According ZoZPNZ
this period is three – month – long.
Also important is the extent to which employees can exercise their rights.
Applicable here is the legal limit in terms of time as well as to the amount of
the claim.252 Employees can apply only to the extent appropriate wage claims
payable in 3 months, which resulted in a period of six months preceding the
month in which the insolvency proceedings. It may not be the last three months
and not even three months consecutive, so the employee would logically choose
the three months in which the highest wage claims. The Labour Office will pay
employees only for wage claims not exceeding one month and a half times the
applicable amount. The applicable amount is announced by the Ministry of
Labour and Social Affairs in the Collection of Laws always with effect from
1 May of the calendar year for a period of 12 calendar months.
After claiming at least one employee the locally competent Labour Office
shall request from the employer a list of outstanding wage claims of all its employees. If the required consents with the information given by the employer,
the Labour Office shall notify employee(s) within ten days of the term, the
manner and extent of wage claims to satisfy.
In the event that the data referred to by the employee and the employer
does not match, the Labour Office satisfies employees only to the undisputed
amount and for indisputed period.
252
§ 5 of an Act No. 118/2000 Coll., on the Protection of Workers at the Employer’s Insolvency,
as amended.
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Labour Office is then logs into insolvency proceedings with the claim paid
to an employee, in which the Labour Office has the same position as if it were
an employee. It is obvious that the Labour Office only claims passes in the
amount in which it is satisfying to employees. The rest of the wage claims,
as well as other labour demands then the employee can recover in bankruptcy
proceedings.
4.3
Restructuring of Entreprises in Hungary
4.3.1 Transfer of undertaking
After the political and economic changes of 1989, protection of employees
from being dismissed in case of the succession of their employers became
crucial. The Position No. 154 of the Labour Division of the Supreme Court253
recognizing the succession was adopted in only 5 months after the (old) Labour
Code254 was adopted in 1992 to settle the insecurity rising from the fact that tens
of thousands of workers had lost their jobs due to the privatization.
However, the special labour law succession was not recognized in the Labour Code until 1997, when the Acquired Rights Directive (77/187/EEC) was
implemented. On the other hand, the new provisions caused uncertainty and
were often criticized because of the ambiguities that arose in the interpretation
and did not favour complex business transactions.
Several substantial changes were introduced by Act No 20 of 2003 to the labour law succession rules. The amendments were adopted in order to harmonize
the Hungarian labour laws with those of the European Union and to incorporate
the Transfer of Undertakings Directive 2001/23/EC into the Hungarian legal
system. As a result, interpretation issues were mostly solved.
The old Labour Code provided that legal succession in the person of the employer occurs either in case of legal succession (universal succession) or when
an independent unit or the tangible or intangible assets of the employer are
transferred by agreement to an organisation or person (individual succession).
Legal succession is regulated by the Company Law255 and by the Civil
Code.256 Cases of demergers or 100% changes in the ownership are examples
for legal succession.
253
LB MK 15.
254
Act No XXII of 1992.
255
Act No IV of 2006.
256
Act No IV of 1959.
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171
Individual succession required an agreement between the transferor and the
transferee, the old Labour Code provided the examples of sale, exchange, lease
and so on. However, such individual agreements, naturally, are not regulated
by the Labour Code.
The New Labour Code introduced a structural reform to the system by excluding universal succession from its terms.257 A separate chapter is now dedicated to transfer, called Transfer of Employment Contracts upon the Transfer
of Enterprise. Section 36 of the new law sets forth that rights and obligations
arising from employment relationships, existing at the time of transfer of an
economic entity (organized grouping of material or other resources) by way
of a legal transaction are transferred to the transferee employer. It covers only
transaction defined above as individual succession.
The consequences of breaching the transferring employer’s duty to inform
the receiving employer concerning the employment relationships involved has
remained the same as it was before, namely that failure to provide the information shall have no bearing as to the enforcement of rights arising from
such covenants on the receiving employer’s part. The new regulation includes
the rights and obligations arising from non-competition agreements and study
contracts too.
Regarding the content and timing of the information, the receiving employer
shall inform in writing the workers affected concerning the transfer of employment upon the transfer of enterprise, disclosing the employer’s identification
data, and on changes in working conditions within fifteen days following the
time of transfer.
Section 39 Subsection 2 introduced a novelty based on Article 7 of the Directive. If the transferring employer has no works council and no shop steward
had been elected either, the transferring or – if so agreed by the employers – the
receiving employer shall inform in writing the employees concerned not more
than fifteen days before the date of transfer of the a) the date or proposed date
of the transfer; b) the reason for the transfer; c) the legal, economic and social
implications of the transfer for the employees; and d) any measures envisaged
in relation to the employees.
The transferring and the receiving employer shall be jointly and severally
liable in respect of obligations towards employees which arose before the date
of transfer, if the employee submits the claim within one year from the date
of transfer.
257
The amends of Bankruptcy Act adopted by Act No CXV of 2011 introduced first the change
of paradigm to the area of succession.
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According to Section 66, an employee may be dismissed only for reasons in
connection with his/her behaviour in relation to the employment relationship,
with his/her ability or in connection with the employer’s operations; however
the transfer of a business itself may not serve as a reason for dismissal.
The Old Labour Code provided for the transferor’s liability if the employment contract was terminated by the transferee within one year of the transfer
by either ordinary dismissal for reasons of the employer’s operation or if the
employee had a fixed term contract. The New Labour Code ceased to apply
such liability.258
These protecting provisions shall apply mutatis mutandis if the worker
terminates his employment relationship by giving notice because the transfer
of employment upon the transfer of enterprise involves a substantial change
in working conditions to the detriment of the employee, and in consequence
maintaining the employment relationship would entail unreasonable disadvantage or would be impossible.
It is arguable whether the exclusion of universal succession is in conformity with Directive 2001/23/EC, as the Directive shall apply to any transfer
of an undertaking, business, or part of an undertaking or business to another
employer as a result of a legal transfer or merger.
4.3.2 Collective redundancies
The first regulations regarding collective redundancies were adopted in
1991.259 In 1997 the provisions of Directive 92/56/EEC were adopted in an insufficient manner, as it was only targeting employees whose employment were
terminated by ordinary dismissal, and excluding workers whose contracts were
either terminated by mutual consent of the employer and the employee, or were
ceased upon the expiration of the fixed term. In 2001 the (old) Labour Code
was amended once again to adopt Directive 98/59/EEC. Since then compliance
with the EU regulation is complete and satisfactory.
According to the definition of the New Labour Code,260 collective redundancy means when an employer, based on the average statistical workforce for
the preceding six-month period, intends to terminate the employment relation258
This rule was only applicable if the a) the transferor; b) the company controlled by the transferor; c) the majority owner of the transferor; or d) the company in which the majority owner
in the majority owner of the transferor, hold more than 50% of the votes on the board of the
transferee. Indeed, the applicability of the protective regulation was narrowed down and could
not fulfill its role.
259
Act No IV of 1991 on unemployment benefits.
260
Act No I of 2012, effective of July 1, 2012.
4 Restructuring of enterprises
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ship a) of at least ten workers, when employing more than twenty and less than
one hundred employees, b) of 10 per cent of the employees, when employing
one hundred or more, but less than three hundred employees, c) of at least thirty
workers, when employing three hundred or more employees, inside a period
of thirty days, for reasons in connection with its operations.
Compliance with the requirements regarding the number of worker intended
to be made redundant shall be ascertained, where applicable, separately for
each place of business; however, the number of workers employed at various
locations, but within the jurisdiction of the same county (or in Budapest) shall
be calculated on the aggregate. The employee shall be accounted at the location
where he or she works in the position registered at the time when the decision
on collective redundancy was adopted. The number of workers shall be calculated on the aggregate, if within thirty days from the date of disclosure of the
legal act for the termination of the last employment relationship or from the
date of reaching an agreement the employer communicates another statement
or concludes an agreement for the termination of employment in a given period.
Section 72 of the new Labour Code specifies the procedure of collective
redundancies. The employer, if planning to carry out collective redundancies,
shall initiate consultations with the works council. At least seven days before
the discussions concerned, the employer shall inform the works council in writing regarding a) the reasons for the projected collective redundancies; b) the
number of workers to be made redundant broken down by categories; or c) the
number of workers employed during the period of six months261 d) the period
over which the projected redundancies are to be effected, and the timetable for
their implementation; e) the criteria proposed for the selection of the workers
to be made redundant; and f) the conditions for and the extent of benefits provided in connection with the termination of employment relationships, other
than what is prescribed in employment regulations. The employer’s obligation
of consultation shall apply until the conclusion of an agreement, or failing this
for a period of fifteen days after the beginning of negotiations.
In order to reach an agreement, the negotiations shall, at least, cover: a) the
possible ways and means of avoiding collective redundancies; b) the principles
of redundancies; c) the means of mitigating the consequences; and d) the reduction of the number of employees affected. The agreement may lay down the
guidelines for the employer to select the workers affected by the termination
of employment relationships.262 If an agreement is concluded in the course of
261
As specified under Subsection (1) of Section 71.
262
Any worker who failed to supply the information necessary for the employer may not allege
any breach of the agreement.
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negotiations, it shall be made out in writing, and a copy shall be sent to the
government employment agency.
The decision for the implementation of collective redundancies shall specify
the number of workers affected, broken down by job categories; and the date of
commencement and conclusion and the timeframe of collective redundancy, or
the timetable for implementing the said redundancies. Collective redundancies
shall be affected in thirty-day periods. To this end, the timetable indicated in
the employer’s decision shall be taken into account.
The employer shall notify the government employment agency of its intention (thus before the decision is made) regarding collective redundancies, and
of the details and aspects of the reasons for the projected collective redundancies; the number of workers to be made redundant broken down by categories; or the number of workers employed; the period over which the projected
redundancies are to be effected, and the timetable for their implementation;
the criteria proposed for the selection of the workers to be made redundant;
and the conditions for and the extent of benefits provided in connection with
the termination of employment relationships, other than what is prescribed in
employment regulations. The employer shall supply a copy of such notification
to the works council.
Once the decision is made, the employer shall notify in writing the government employment agency thereof at least thirty days prior to delivering the
notice of dismissal. The notification shall contain the data of identification of
the employees; the positions affected; and the qualification of the employees
to be made redundant.
The employer shall also notify in writing the workers affected of its decision regarding collective redundancies at least thirty days prior to delivering
the notice of dismissal or the dismissal without notice concerning definite term
contracts.263 The notice of dismissal or the dismissal without notice may be
delivered after thirty days following the time of notification.
Such notification shall be sent to the works council and the government
employment agency as well. Any notice of dismissal delivered in violation of
the above procedure shall be considered unlawful.
The provisions on collective redundancies shall not apply to the crews of
sea-going vessels, as the Directive excludes it from its scope.
263
Paragraph b) of Subsection (1) of Section 79.
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175
4.3.3 Insolvency
The protection of employees in the event of the insolvency of their employer has long been a centre of attention, as the implementation of the respective
EU regulations has not been flawless.
Directive 80/987/EEC was adopted by Act XVI of 1994, establishing the
Wage Guarantee Fund.264 However, due to structural problems resulted from
the original implementation act of 1994; it is still not in accordance with the
requirements set forth by the EU regulation.
After the Directive 2002/74/EC was adopted, Act No CV of 2005 made
essential modifications in both Act XVI of 1994 on the Wage Guarantee Fund
and in Act XLIX of 1991 on Bankruptcy, introducing a concept of the place of
“habitual work” to protect workers in the event of insolvency of undertakings
pursuing their activities in a number of Member States. The Act set forth that
in the case of the liquidation of a foreign company or its branch office whose
obligation it is to submit the support application and introduces special competency rules in respect of companies, which do not have a headquarters in
Hungary. Based on the amends, the Labour Centre of Capital is appointed as
single hand contact to interfaces with the wage guarantee organisations, liquidators of other EU member states.
Two years later, Act XIX of year 2007 introduced changes in a number of
points once again. Due to Romania and Bulgaria joining the EU – countries that
are not members of the EEA – the legal concept of the liquidation procedure
was defined more accurately. The modification also stipulated an extended
timeframe for using the support. Upon the amend, wage debt towards those
employees, whose labour relationship is terminated because the employer is
terminated without a legal successor, and wage debt that becomes due at the
time when the company is terminated without a legal successor are covered
by the Act. In such cases the liquidator – if no other coverage available – is
obliged to make a request from the fund and to pay off the employees prior to
preparing the liquidation closing balance sheet.
The provision concerning the ceiling of the support was clarified: the limit
has to be examined in respect of the liquidation procedure concerned. In case
the monthly gross average earnings of the national economy are different in
the different calendar years of the liquidation procedure, then from the aspect
of entitlement the higher gross average wage has to be applied.
264
The Wage Guarantee Fund ceased to exist as an independent separate fund as of January 1,
1996, merging together with other funds into the Labour Market Fund, and became the essential
part thereof.
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
Under certain circumstances a further support corresponding to at most two
month gross average earnings may be requested by liquidator – which may be
provided by the General Director of the Labour Centre – if the relevant legal
conditions are met. Such decision is made by the discretion of the Labour
Centre.
Act LI of 2009 comprehensively amended the Bankruptcy Act with effect
from 1 September 2009. The aim of this reform was to re-regulate bankruptcy
proceedings as they were very rarely used in practice and to reduce the number
of insolvent liquidation proceedings.265
The above amends have solved some of the problems initially existed, however, in spite of these positive developments, the system still includes a number
of problems even today.
Firstly, the definition of employer which is based on the personal scope of
the Bankruptcy Act,266 did not cover the state, the public sector employers, nonprofit organizations to name a few. This regulation clearly lowers the scope of
employees being protected by the Wage Guarantee Fund and do not meet the
criteria set forth for justifiable limitations on the responsibility of the guarantee
fund, as it is not compatible with the social objective of the Directive.267
Second of all, according to the Bankruptcy Act, employees do not get payments automatically from the fund in the event of insolvency,268 as the principle
of insurance requires for particular insurance events. It is the employer, the
liquidator or administrator who needs to make a claim for a loan (!) to ensure
payments for the back wages. This loan must be paid back by the employer or
its legal successor269 from the money brought in during the process of liquidation.
According to the Act on the Wage Insurance Fund the labour agencies have
the right to supervise the claim made during the liquidation processes. The
special deadlines are applicable for the procedure: the labour centre conducting
the procedure is to decide about the support within eight days with a resolution,
and it is obliged to act within 15 days concerning its transfer; the liquidator – as
a main rule – has to take care of having it paid to the employees within three
work days. The labour agency and may refuse a request in case the employer
265
In 2012 more amends were introduced to the Bankruptcy Act, not affecting the regulations
concerning the employees rights in case of insolvency.
266
Act No XLIX of 1991.
267
Directive 2002/74/EC, Clause 8.
268
Bankruptcy or liquidation.
269
Or, by the administrator/liquidator.
4 Restructuring of enterprises
177
failed to pay back the loan given by the Fund during the course of an earlier
liquidation process.
Such procedure is not in conformity with the regulations of the EU Directive, which is based on the insurance principles.270
4.4
Restructruring of Enterprises in Slovakia
Transposition of the mentioned Directives into the Slovak legal system
began even before Slovakia’s accession to the European Union. The provisions
of these directives became part of the Slovak legal system via laws adopted
by the National Council of the Slovak Republic. They are provided for mainly
in the Act No. 311/2001 of the Labour Code, as amended, and in the Act
No. 461/2003 Coll. on social insurance, as amended. Legislation is still being
more specified by amendments to the mentioned provisions.
4.4.1 Restructuring of enterprises
4.4.1.1 Transfer of undertaking
If an employer, who has a legal successor, ceases to exist, the rights
and obligations of labour relations pass on the successor. The Labour Code
provides general succession of rights and obligations arising from the employment relationship at any change in the subject of the employment contract by
the employer, if there is a termination of the employer with legal successor.
Change in the subject of employment occurs in such a way that the validity of
the employment contract continues. The transferee employer is bound by the
valid work contracts as well as the former employer was.
To be fulfilled the notion of the transfer of rights and obligations of the
employment relationship, there must be a transfer of an economic unit which
is a company, its part, certain business activities or business tasks of this company. Under the EU law, it must be a transfer of an economic unit that also
after the transfer retains its identity, in the meaning of an organized grouping
of resources in order to pursue an economic activity, regardless of whether or
not that activity is central or ancillary.
In accordance with the Directive, the Labour Code defines an economic
unit as follows: The economic unit is the employer or part of the employer
who retains their identity as an organized grouping of resources (tangible as270
Hajdú, József: Labour Law in Hungary, Wolters KLuwer, 2011. pp 164–165. ISBN 978-90-4113792-0.
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
sets, intangible components and personal folders), which aims to carry out an
economic activity, regardless of whether that activity is central or ancillary. If
the economic unit is transferred or if a task or activity of the employer or
their part is transferred to another employer, its rights and obligations under
employment contracts to the transferred employees are also transferred to the
transferee employer.
The transferor is a legal entity or natural person who via a transferring
ceases to be the employer.
Transferee employer is a legal entity or natural person, who via a transferring continues as an employer to the transferred employees. The rights
and obligations of the former employer to an employee, whose employment
relationship ceased to exist until the day of transfer, shall remain unaffected.
Information and consulting obligation of the employer
The transferor and transferee employer have two types of responsibilities –
information obligation and duty to discuss the upcoming transfer of rights and
obligations arising from the employment relationship.
The employer is obliged no later than one month prior to a transfer of rights
and obligations deriving from employment relationships to inform employee
representatives in writing, and if at the employer’s employee representatives
do not act, he has to inform directly employees on
the date or proposed date of transfer,
reasons for the transfer,
employment, economic and social consequences of the transfer for employees,
planned transfer arrangements relating to the employees.
The employer is obliged no later than one month before he takes measures
relating to the employees to discuss such measures with the employee representatives with the aim to reach an agreement.
Termination of employment
Transfer of rights and obligations arising from the employment relationship
is not a dismissal reason for the employer.
However, if due to the transfer the working conditions have fundamentally
changed for an employee and this employee disagrees with the change, the
Labour Code establishes the legal fiction that the employment relationship
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is deemed terminated via an agreement due to the reasons of the employer
(employee redundancy) on the date of transfer. In case of the termination of
employment an employee is entitled for severance pay.
In addition to the above mentioned case where the employee himself does
not agree with the change of the working conditions stipulated in the employment contract, transfer of business should never be a reason for termination of
employment by the employer.
The rights and obligations of the employment relationship pass after the
death of an employer who is a natural person, on his heirs. If an employer –
natural person has no heirs, the rights and obligations arising from employment
relationships pass after his death as Bona vacantia – ownerless goods to the
state. The Civil Code recognizes that the heritage proceedings in the case when
the testator left more debts than assets, ends by the agreement of the heirs with
creditors under which heirs give the heritage to creditors to pay debts. In case
of such an agreement, the rights and obligations deriving from the employment
relationships are also transferred to the creditors of the testator – the employer.
If an employer or its part is sold, the rights and obligations under employment contracts are transferred from the seller’s employer to the buyer’s
employer.
If after the withdrawal from the contract on the sale of the employer or its
part, the rights and obligations of the employment relationship are not transferred to another transferee, fulfilment of the claims arising from the employment relationships is provided by the selling employer.
If the employer – the renter rents part of the employer to another employer, the rights and obligations of the employment relationships to an employee of this part of the employer pass to the employer- the lessee.
If, after termination of the rent of the employer or the employer’s part, the
rights and obligations of the employment relationships do not pass to another
lessee, fulfilment of the claims arising from the employment relationships are
provided by the employer – the renter. The exception to this provision are the
employees recruited by the employer – the lessee since the date of the renting.
If the employer is terminated, the authority which repeals the employer,
shall determine which employer is obliged to meet the claims of the employer’s employees or apply its claims. If during the cancellation of the employer there is also realized its liquidation, the liquidator has a duty to satisfy
the claims of employees of the cancelled employer.
If there occurs transfer of the rights and obligations deriving from the employment relationships, the employer is obliged to comply with a collective
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agreement negotiated by the former employer, and up to the end of its effectiveness and status and function of the employees’ representatives shall be
maintained until the end of the term, unless agreed otherwise. Employees’ representatives, who are included in employment protection even after the transfer
of the business, are officials of employees’ representatives. If at the workplace
there are several trade unions, all are entitled to an increased protection. If at
the employer’s there does not operate any trade union, the right to maintain
the legal status and function until the end of the term belongs to members of
the Works Council, respectively employees’ trustee.
The provisions on transfer of the rights and obligations deriving from the
employment relationships shall not apply to an employer declared in bankruptcy by court.
4.4.2 Collective redundancy
The legislator intervened in the legislation on collective redundancies last
time through an amendment to the Labour Code, effective from 1st September
2011. The mentioned amendment was designed to increase the flexibility of
the rules on collective redundancies, both by changing the basic conditions for
determining when it is a case of collective redundancies and by removing an
employer’s obligation to discuss measures allowing to avoid collective redundancies or their limitation via public authorities, in particular via the Office of
Labour, Social Affairs and Family.
The conditions for collective redundancies stipulated by law must be met
in addition to the conditions stipulated for unilateral termination of employment by the employer.
4.4.2.1 Material scope of application
Material scope of application of the Directive on collective redundancies is
given by the definition of collective dismissal. According to Article 1 Point 1
Letter a) of the Directive, Member States are given a choice between two available definitions of collective redundancies. Until 1st September 2011as a collective dismissal was considered the case when the employer or the employer’s
part terminate an employment via a dismissal notice due to the reasons referred
to in Article 63 Paragraph 1 Letters a) and b), (if the employer is cancelled
or due to the organizational reasons), or when the employment relationship is
terminated for any other reason, which does not lie in the person of an employee
and it is within at least for a period of 90 days with 20 employees.
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The mentioned provision of Article 73 Paragraph 1 of the Labour Code
was changed via amendment. There was introduced the first alternative of the
Article 1 of the Directive. In collective redundancies, the employer shall be
differentiated according to the number of employees and the vesting period is
30 days. The collective dismissal occurs when an employer or a part of the employer terminates employment via dismissal notice due to the reasons referred
to in Article 63 Paragraph 1 Letters a) and b), or if the employment relationship
ended any other way for any other reason, which does not lie in the person of
an employee and it is within at least for a period of 30 days:
with at least 10 employees by an employer who employs more than 20 and
fewer than 100 employees,
with at least 10% of the total number of employees by an employer who
employs more than 100 and fewer than 300 employees,
with at least 30 employees at the employer who employs more than 300 employees.
In this regard, there was a legislative-technical error, and under the rules
for collective redundancies there were not included employers employing 100
or exactly 300 employees. We assume that the error will be removed as soon
as possible via a simple amendment to the Labour Code.
4.4.2.2 The duty of consultation– employees’ representatives, employees
According to the Directive (Articles 2, 3, 4), prior to collective redundancies there should occur consultations with the social partners and there should
be informed the competent public authority.
In order to reach an agreement, especially with regard to measures enabling
the avoidance of collective redundancies, reduction of it, or at least mitigation
of its consequences, the employer is obliged no later than one month before the
start of collective redundancies to negotiate with employee representatives and
if at the employer’s the employee representatives do not act, he has to negotiate
directly with the affected employees the option of their placement in suitable
jobs in other employer’s workplaces and other measures to mitigate the negative consequences of collective redundancies. For this purpose the employer
shall provide employees’ representatives with all necessary information and
notify them in writing in particular on
reasons for collective redundancies,
the number and structure of employees, with whom it is planned to end the
employment,
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the total number and structure of employees employed by the employer,
the period during which the collective dismissal will take place,
criteria for selection of employees to the termination of employment,
failure to comply with the written forms of information, however, in accordance with applicable legislation, does not cause its invalidity; the employer
is obliged to deliver the transcript of the information simultaneously to the
competent Office of Labour, Social Affairs and Family,
the employer is obliged to carry out consultation procedures before the
actual decision on collective redundancies.
4.4.2.3 Information obligation – Office of Labour, Social Affairs
and Family
Under the previous legislation, the employer discussed with the Office of Labour, Social Affairs and Family also measures enabling avoidance of collective
redundancies or its limitation. Following the purpose of increasing the flexibility of collective redundancy, the amendment to the Labour Code cancelled
the Article 73 Paragraph 7 of the Labour Code, and thus there was cancelled
the mentioned obligation of the employer. The obligation to provide written
information to the Office of Labour, Social Affairs and Family, remained. By
the deletion of Paragraph 7 there was removed the possibility of reducing the
negative effects of dismissals in cooperation with state authorities.
After discussions about collective redundancies with employees’ representatives (if at the employer’s the employees’ representatives do not act, directly with employees), the employer must submit a written notification of the
outcome of the consultation to the competent public authority, i.e. to Office of
Labour, Social Affairs and Family and to employees’ representatives.
The collective dismissal by the employer may take place not earlier than
30 days after such notice. The Directive allows Member States to enshrine in
law the capacity to shorten the 30-day period. The Slovak legislator in the latest
amendment seized this opportunity and allowed the Office of Labour, Social
Affairs and Family to shorten the one-month period adequately. In this case the
Office is obliged to immediately inform the employer in writing of its decision.
The Directive allows the Office to grant authorization to extend the specified
period; this option is enshrined in the Slovak legal system.
Since in practice it is quite often to violate the 30-day period that must elapse
from the date of notification of the results of the debate with the competent Office
of Labour, Social Affairs and Family until the start of collective dismissal, we
believe that legislation on this issue should be more stringent, it should include
penalties for its violation, and it should not lead to the release of this period.
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4.4.2.4 Exceptions
In terms of the application of the provisions governing collective redundancies the Slovak legislature seized the opportunity and provided for exceptions,
and therefore the legislation on collective redundancies shall not apply to:
termination of employment for a fixed time, which has expired,
crew members of vessels flying the flag of the Slovak Republic,
a reporting obligation to the Office of Labour, Social Affairs and Family
does not apply either to an employer who has been declared bankrupt by
court.
4.4.2.5 Penalties for failure to comply with obligations
Directive does not specify penalties for the Member States to penalize employers for non-compliance with obligations in collective redundancies, but it
foresees their implementation and it leaves the responsibility to specify them
in the hands of individual states. Under provision of Article 73 Paragraph 8
of the Labour Code if the employer violates the obligations stipulated in the
collective redundancies to employees’ representatives, respectively to the employees, the employee to whom employment was terminated within collective
redundancies is entitled to compensation in the amount of at least twice the
average monthly salary.
The Labour Code does not provide for any sanctions in case of breach of
information obligations of the employer to the Office of Labour, Social Affairs
and Family. There can be applied only general sanctions, which are available
for the competent labour inspectorate in case of violation of the provisions of
the Labour Code.
The provisions of the Directive contain an obligation for the EU Member
States to ensure that employee representatives, or employees, will be able in
judicial or administrative proceedings to enforce the fulfilment of legal obligations of the employer within collective redundancies. This part of the directive
has not yet been reflected to the Slovak legal system.
4.4.3 Insolvency of the employer
The definition of the notion – insolvency of the employer is embodied in
Article 12 of Act No. 461/2003 Coll. on social insurance, as amended (hereinafter referred to as the Social Insurance Act) for which the employer is considered insolvent when there was filed a petition for bankruptcy of the employer.
The date of proclamation of the employer’s insolvency is considered the
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date, when the petition for bankruptcy was delivered to the competent court.
If the court begins the insolvency proceedings on its own without the petition,
pursuant to special regulation, 33) a the date of issue of the court’s decision to
open insolvency proceedings is considered as the day of proclamation of the
employer’s insolvency.
Employees, who entered into an employment contract with the employer
after the proclamation of insolvency and were informed on the insolvency of
the employer via a written notice (Article 102 Paragraph 2 Social Insurance
Act), are excluded from protection against the insolvency of the employer.
In the event of the insolvency the claims of employees are covered by
social insurance – benefit of the employer’s guarantee insurance. Guarantee
insurance arises for the employer on the day on which he began to employ
at least one employee in an employment relationship, and ends on the date
when he already does not employ any employee in an employment relationship.
An employee of the employer is entitled to a benefit from the guarantee
insurance when their employer became insolvent and cannot meet the demands
of the employee.
Guarantee insurance satisfies:
a) the right to salary and compensation for time spent on call,
b) claim for income derived from a cooperative employment relationship to
the cooperative member,
c) the right to remuneration agreed in the agreement for work performed outside the employment relationship,
d) the right to compensation for holidays and for obstructions in work,
e) the right to holiday pay, entitlement to which arose during the calendar year
in which the employer was insolvent, and also for the previous calendar
year,
f) claim for severance pay to the employee upon termination of employment,
g) claim for compensation in case of the immediate termination of employment,
h) claim for compensation in case of invalid termination of employment,
i) claim for compensation of travel, relocation and other expenses incurred
in the performance of employment duties,
j) the right to compensation for material damage in an accident at work or
occupational disease,
k) claim for reimbursement for temporary sick leave under a special regulation,
l) litigation costs in connection with the claim of employment to an employee
in court due to the cancellation of the employer, including the costs of legal
representation.
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Benefit of the guarantee insurance is provided maximum up to three months
within the last 18 months of the employment relationship preceding the beginning of the insolvency of the employer or date of termination of the employment relationship because of the employer’s insolvency. Benefit of the
guarantee insurance represents maximum up to three times the amount of onetwelfth of the tax base determined on the date of the employer’s insolvency.
General assessment base is 12 times the average monthly wage in the economy
of the Slovak Republic established by the Statistical Office of the Slovak Republic for the calendar year.
Benefit of the guarantee insurance will be provided in the amount of the
claim – reduced by the health insurance, sickness insurance, old-age insurance,
disability insurance premiums, premiums for unemployment insurance, which
is required to be paid by the employee and reduced also by the tax refund or tax
on income from employment and emoluments deriving from a certain employment position, as calculated under the terms of the applicable calendar month
for which the employee was given the claim.
Benefit of the guarantee insurance is paid by the Social Insurance Agency
to employees. Social Insurance Agency is a public institution established for
the performance of social insurance, which also includes guarantee insurance.
The employer (or provisional liquidator or liquidator) is obliged to inform
in written the representatives of employees, if at the employer’s the employee
representatives do not act, he has to inform directly the employees of insolvency within 10 days of its occurrence. Information obligation of the employer
is addressed to all employees, regardless of the type of contract they entered
into with their employer, i.e. as well as to employees working in employment
for a fixed period, and to employees working part-time.
The employee is obliged to notify the employer (or provisional liquidator
or liquidator) on their request any information required in connection with the
confirmation of the claims deriving from the employment relationship under
the Act on Social Insurance.
4.4.4 Conclusion
At present, the basis of legislation on employees’ claims in case of insolvency of the employer is involved in two laws – the Labour Code (Articles 21–22)
and the Act on Social Insurance. The transfer of rights and duties deriving
from the employment relationship is regulated in Articles 27–31 of the Labour
Code. The issue of collective redundancies is contained in Article 73 of the
Labour Code.
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The provisions of the Labour Code and the Act on Social Insurance are
mandatory. The contractual parties cannot exclude their application via a mutual agreement and it cannot be excluded either by a collective agreement.
In terms of full compatibility of the Slovak legislation with EU law it is still
necessary to make some changes to the legislation.
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5
Working time
5.1
Introduction
Working time is a significant labour law institute, which fundamentally affects both work and private lives of employees. Since the primary function of
Labour law – is its protective function, labour regulations enshrine maximum
and minimum amount of working time as well as of rest periods.271
It can be stated that the issue of maximum working hours has been addressed from a practical point of view since the establishment of labour law in
19th century, even at the international level the first International Labour Organization (ILO) Convention of 1919 provided for the maximum daily working time. Currently, working time maximums are mainly assessed at weekly
intervals, and this way of assessment of the maximum working time is also
enshrined in the Directive.
In the European Union the primary source of labour law in the area of working time is the Directive of the European Parliament and of the Council
2003/88/EC of 4th November 2003 concerning certain aspects of the organization of working time.
The Directive enshrines the basic definitions relating to the issue of working time as well as the basic conditions for the distribution of working time.
In Article 2 of the Directive there are defined the basic terms for the purposes
related to the issue of working time – the concept of working time, night work,
shift work, rest time and etc.
Working time is the period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with
national laws and/or practice.
In accordance with the Directive the average working time for each sevenday period, including overtimes, does not exceed 48 hours (however, the Directive allows also exemptions within the maximum working hours).
If an employee performs certain work, it is not physically possible to do the
job continuously, without the necessary rest. The Directive provides rest time
271
Barancová, H.: Právo na primeraný pracovný čas a čas odpočinku. In. Barancová, H. a kol.:
Základné práva a slobody v pracovnom práve; Plzeň: Vydavatelství a nakladatelství Aleš Čen k,
2012, p. 304–325.
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both – during the performance of work – work breaks and after completion of
work in the form of daily and weekly rest.
The worker is entitled to:
a minimum daily rest period of 11 consecutive hours per 24-hour period,
a rest break, where the working day is longer than six hours,
a minimum uninterrupted rest period of 24 hours for each seven-day period,
which is added to the 11 hours' daily rest,
maximum weekly working time of 48 hours, including overtime,
paid annual leave of at least four weeks.
Special provisions apply to certain sectors of employment mobile workers
and offshore activities; workers on board fishing vessels; and doctors in training.
5.2
Working time in the Czech Republic
5.2.1 Introduction
Legal regulation dealing with the working hours is contained in the provision § 78–100, leave is regulated in the provision § 211–233 of the Labour
Code, Act N. 262/2006 Coll., which implemented the directive 2003/88 European Directive on some aspects of regulation dealing with working hours.
5.2.2 Working hours (§ 78 Labour Code)
Under the article 28 of the Fundamental Charter of Rights and Freedoms
workers are entitled to satisfying working conditions, including satisfying
working hours and the period taken off from work as a holiday both being set
by the law. The regulation dealing with working hours as defined in the § 78
clause 1 letter a) of the Labour Code is a complete transposition of the article 2 clause 1 of the directive 2003/88/European Directive dealing with some
aspects of working hours. The working hours is a time when (i) the employee
is obliged to do certain type of work for the employer or when the employee
is under the duty to be ready at the place determined by the employer in order
to do the work and perform the tasks for the employer. Before January 1, 2007
the time when the employee was under the duty to be ready to do the work
for the employer was considered a standby duty, however, such legal regulation was in conflict with the directive mentioned above. Thus the employers
are obliged to mark the beginning and the end of working hours (shifts) when
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keeping the records of hours worked, as well as working overtime (including
other types of work agreed on in the health service), night shifts as well as the
period when the employee is on a standby duty including the work done during
this standby duty.272
5.2.2.1 Fixed working hours per week (§ 79 of Labour Code)
Commonly fixed working hours per week scheduled by the employer when
doing the weekly schedule of shifts is 40 hours per week. This is a mandatory
provision.
Shift. A shift is defined as a part of the hours worked per week (not including working overtime), which the employee is obliged to work based on
the schedule set by the employer in advance. Certain types of work cannot
be finished at the workplace within one shift and so the Labour Code further
regulates so called two and three shift continuous operation.
Stipulated working hours per week are based on the working regimes –
in a one-shift working regime it is 40 hours per week, in a two-shift working
regime it is 38,5 hours and in a three-shift regime as well as in a continuous
operation it is 37,5 hours per week. The employer cannot require the employee
to work more than what is set by the law. Next the provision § 34b explicitly
stipulates that the employer must assign the employee work within the limits of
working hours per week as mentioned above. Thus the employers can massively
lower the amount of working hours of a certain group of workers in a private
sector, however, this must be done without lowering their wages.
These are the cases of “shortened working hours”, which can be stipulated either in a collective agreement or in an internal regulation (e.g. 37 hours
in comparison with the usual 40 hours). Employers belonging to the public sector cannot shorten the working hours in this way. However, shortened working
hours cannot be confused with the second possibility of shortening working
hours i.e. with the individual “shortened working hours” (in practice often referred to as the “part-time job”). Thus the shortened working hours can only
be stipulated after an agreement with a particular employee has been reached,
the wages being regulated in proportion to the hours worked.273
The hours worked by a juvenile (an employee younger than 18) cannot
exceed the amount of 8 hours a day. Bearing in mind that under § 245 clause 1
272
Križan, V.: Pracovný čas a pracovná pohotovosť v judikatúre Súdneho dvora ES. In: Teoretické
úvahy o práve. – Trnava: Trnavská univerzita v Trnave, Právnická fakulta, 2009, p. 14.
273
Štefko, M.: Porovnání úpravy pracovní doby a doby odpočinku pro účely sm rnice č. 97/71/ES,
Právník 2010, č. 1, s. 52.
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the juvenile cannot work overtime the 8-hour limit also applies to the hours
worked by a person under the age of 18, i.e. such a person cannot work more
than 8 hours a day even upon an agreement. If a person under the age of 18 is
employed by more than just one employer, the hours worked by such a person
cannot exceed 40 hours per week not only upon an employment contract, but
also upon an agreement to perform work and an agreement to complete a job.
This is a reason why the employers check the total amount of hours worked by
an employee as they require the workers under the age of 18 to inform them
about other basic working relations. If there are no other working relations the
employee is obliged to sign an affidavit proving that this is so.
5.2.2.2 Working hours scheduling (§ 81 Labor Code)
It is an exclusive right and responsibility of the employer to schedule the
working hours for the employees – except in cases when the employees do not
work at the workplace of the employer as defined in the § 317 of the Labour
Code. Thus it is entirely up to the employer to decide whether the working
hours will be scheduled evenly or not, as well as the decision about the length
of the working week, what the working regime will be, the beginning and the
end of the shifts, what the rest between the shifts will be, the rest during the
week, etc. If there is a trade union operating with the employer, the employer
has to decide on the issues connected with the time scheduling in accordance
with the § 99 after discussing the issues with the particular trade union organization. Those employees without trade unions shall make the decision about the
time scheduling of the working hours on their own. However, this rule does not
apply in cases when the employer and the employee stipulate the scheduling
of the working hours or the working hours per week and other conditions in
the employment contract or agreement.
It is not only the right of the employer to plan and organize the working
hours for the employees, but also the duty. The employee is usually supposed to
spread the working hours over a five-day working week. However, if the business operation requires the working hours to be spread over four or six working days, the employer is allowed to do so under the Labor Code. However,
when planning the working hours the employer has to provide an uninterrupted
period of rest during the week in accordance with the § 92 of the Labor Code
and at the same time the employer has to plan and organize the working hours
in such a way that the worked done is not in conflict with safety regulations
and regulations securing the health protection of the employees. Under the
§ 241 the employer is also obliged to take into account special requirements
of those looking after children when planning the working hours and the shifts.
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Under the § 37 clause 1 letter e) the employer must send an employee a letter
informing them about the working hours and the time scheduling unless this
is stipulated in an employment contract.
As soon as the employee has been informed about the beginning and the end
of the working shifts, he/she is under the duty to be present at the workplace
and carry out the work stipulated in the contract. The employee is not allowed
to leave the workplace before the working shift has finished. Thus it is obvious that activities such as changing the working clothes, cleaning and other
activities done before and after the shift are not considered as the work done
during the working hours. Thus the employee is obliged to do these activities
before and after the working shift.
Balanced working hours scheduling (§ 78 of the Labour Code)
If the employer, when planning the working hours for the employee, assigns
the employee an amount of working hours equal to the full number of working
hours, which can be assigned per one week, or if the employer assigns shorter
working hours as stipulated in the employment contract, then it is the case of
a balanced working hours scheduling. In such cases the employee is to work
the same amount of hours every day as defined in the schedule.
Unbalanced working hours scheduling (§ 78 and § 83 of Labour Code)
If the employer does not spread the stipulated working hours for the employer, or the stipulated shorter working hours evenly spreading the working
hours over each working week individually, these are the cases of unbalanced
working hours scheduling. In such cases the employer plans the working hours
differently for each particular week depending on the specific needs of business
operation. However, the employer has to schedule the stipulated working hours
per week, or shortened working hours, which lasts 26 weeks at most.274
The employer has a better position if there is a trade union operating at
his workplace, as he can stipulate the special balancing period with the trade
union. This can be stipulated in a collective agreement. This special balancing period is stipulated for unbalanced working hours and it can reach up to
52 weeks. Working hours scheduled for the balancing period can never be over
the stipulated working hours per week, or shorter working hours stipulated in
a contract. However, if the employer decided to assign a smaller amount of
working hours intended for the balancing period, it would be the case of obstructions in a job coming from the employer and in such a case the employees
274
SLÁDEK, V.: Pracovní doba v novém zákoníku práce. Práce a mzda, 2006, č. 11, s. 9.
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would be entitled to a recovery of wages or a salary in the amount from 60%
up to 100% of average income.
The maximal length of the special balancing period shall be stipulated by
means of a directive in months (it is either 6 months or 12 months if stipulated
so in a collective agreement). However, the Labor Code sets the length of the
special balancing period in weeks (maximally it is 26 weeks, or 52 weeks in
cases when it is stipulated so in a collective agreement). This has been done
for practical reasons as the Czech legal regulation dealing with the working
hours has traditionally used a week measure when establishing the working
hours as it is easier to calculate the working hours in a week measure rather
than in a month measure.
5.2.2.3 Night work (§ 78 of Labour Code)
Any type of work carried out during the night period i.e. the period between
10 p.m. till 6 a.m. is regarded as night work. A person who regularly works at
least 3 hours out of his working hours within 24 successive hours on average
at least once a week within the period of 26 successive weeks during the night
period is regarded as an employee working at night. Employers often confuse
“night works” and “employees working at night” and wrongly assume that it
is only employees working at night who are entitled to a bonus awarded for
working at night. However, it is also an employee who has never been on
a night shift, but on one occasion he needed to finish work after 10 p.m. who
is entitled to this special additional allowance.275
The difference between employees only occasionally carrying out night
work and the “employees working at night” consists in the fact that the employers are obliged to fulfill certain requirements defined in the § 94 towards the
latter group of workers. The directive 2003/88/ES in the article N. 2 point 3
defines the night period. This is the period lasting at least 7 hours, regulated by
internal regulations. This period must in every case involve the hours between
the midnight and 5 a.m. The Czech legal regulation meets both requirements and
as far as the length of the period is concerned the Czech legal regulation defines
the night period as the period between 10 p.m. and 6 a.m., i.e. eight hours.
The employer is obliged to perform a whole number of specific tasks and
obligations for the employees working at night. The employer has to arrange
regular check-ups for the employee with the company physician responsible
for the health care provided for the employees before putting the employee on
275
B LINA, M., DRÁPAL, L. a kol.: Zákoník práce. Komentá . C. H. Beck, Praha 2012, s. 474.
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a night shift and then regularly, based on need, once a year at least or whenever
the employee asks for such a check-up.
The hours worked on a night shift cannot exceed 8 hours within 24 successive hours. However, if it is not possible due to the business operation, the
employer is allowed to make a decision and stipulate that the employee will
have to work for periods longer than 8 hours. However, in such cases the employer must schedule the stipulated working hours per week in such a way that
the average hours worked on a shift do not exceed 8 hours within the period of
not more than 26 successive weeks.
The employer is obliged to guarantee reasonable social security for the
employee working at night, refreshment especially. The last obligation of the
employer connected with the safety of the employees is the duty of the employer to furnish the workplace where the employees work at night with any
necessary means to give first aid to the employee, including the means which
make it possible to call prompt medical attention. The directive provision guaranteeing the claim of an employee working at night to have his state of health
assessed before he/she is put on a night shift, including the claims of an employee to regular check-ups, is consistently transposed by the Czech Labour
Code. The Czech legal regulation goes beyond these provisions and stipulates
these check-ups in such a manner that they are based on need. However, these
check-ups must be carried out at least once a year or whenever an employee
working at night asks for such a check-up.
In cases when the employer is obliged to transfer the employee working
at night who at the same time suffers from health problems connected with
working at night to a shift where the employee will be working during the
day time whenever it is possible – this is possible under the European directive regulating this area of law. However, the Czech Labour Code stipulates
such an obligation for the employer only in such cases when it is a pregnant
woman working on a night shift who has, at the same time, asked for such
a transfer. However, under the Czech legal regulation the woman who is about
to be transferred to a different shift does not need to prove that she is suffering
from health problems connected with working at night. However, the Czech
Labour Code stipulates the employer’s obligation to transfer an employee to
a different type of work in cases when the employee working at night has been
recognized as unfit for working at night. In this respect the Czech legal regulation is stricter when talking about observing general principles of protection of
safety and health of employees.
The provision of the article 8 of the Directive 2003/88/European Directive
stipulates that common working hours of those working at night should not
exceed on average 8 hours within 24 hours of the so-called referential period.
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The directive leaves the planning of the referential period within the member
states up to an agreement with social partners or up to collective agreements’
regulation. However, the Labour Code valid in the Czech Republic is stricter
stipulating that the night shift of an employee working at night cannot exceed
8 hours within 24 successive hours. Thus the Czech legal regulation is stricter
as shown above as it does not allow the employee working at night to work
more some days and less the others so that the conditions of 8 hours worked
on average within 24 hours during the referential period would be met as required by the directive. However, in cases of operation reasons on the part of
the employers the 26 week referential period intended for an 8 hour shift will
be applied.
The working hours must not exceed 12 hours no matter whether the time
scheduling of the working hours is balanced or unbalanced and the working
regime is a one-shift or a more than one-shift working regime. The employer
is obliged to work out a written schedule of the working hours per week and
let the employees know what the schedule is no matter whether or not there
have been any changes made in the schedule. The employer must inform the
employees about the schedule and any changes made within 2 weeks, in some
cases not less than 1 week before the beginning of the period of the working
hours, unless he/she has agreed to inform the employee about the working
hours sooner or later.
5.2.2.4 Working overtime (§ 78 of Labour Code)
The work which is done over the stipulated weekly working hours and
which is at the same time carried out by the employee over the stipulated time
schedule of shifts – based on the employer’s order given in advance, or with the
employer’s consent, is referred to as working overtime. Based on the definition
described above it is not automatically any type of work done for the employer
beyond the working hours that can be regarded as working overtime, but rather
the work which has been ordered by the employer as overtime, or in such cases
when the employer gave consent to the employee to carry out such work (i.e.
both the employer and the employee have agreed the overtime).276
Working overtime cannot be subject to time scheduling of the shifts, not
even in such cases when this work is planned. If an employee asks for a special
work which is beyond their stipulated working hours in exchange for some days
276
B lina, M. a kol.: Pracovní právo. 5. dopln né a podstatn p epracované vydání. Praha. C. H. Beck,
2010, s. 270.
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off, i.e. the employee wants to make up for a few days off, such work shall not
be considered as overtime.
It is strictly prohibited by the Labour Code to force pregnant women and underage employees to work overtime. Those employees (men and women) looking after children younger than one year cannot be ordered to work overtime.
However, the employer can agree with these employees on overtime work.
Working overtime with shortened working hours
With shortened working hours overtime work is assessed in a different way.
Work exceeding stipulated working hours, i.e. 40 hours per week is considered
to be an overtime work. The employee with shortened working hours cannot be
ordered to work overtime. In such cases the employer and the employee must
agree on such a work. Thus the employee can upon previous agreement with
the employer carry out work beyond the stipulated shortened working hours.
However, such an employee is entitled to a personal bonus only for the work
exceeding the stipulated working hours per week. In this way those employees
working for the full number of working hours per week are treated equally to
those working for a shortened amount of hours per week.
5.2.2.5 Specific institutes of working time
Standby duty (§ 78 Labour Code)
The period when the employee does not carry out the work stipulated in
the employment contract but is outside the workplace and is ready to carry out
such work according to the order of the employer is called a standby duty. Thus
being on a standby duty means that the employee is at the place of his residence
or he/she is present at the place where he/she spends his free time. The situation
would be different if the employee was present and ready at his/her workplace.
In such cases it would be called working hours. In case of a standby duty there
are no time limits stipulated in the Labour Code. However, agreement between
the employer and the employee is required in such cases.
The employee on a standby duty is entitled to a personal bonus in the
amount of not less than 10% of his/her average income. If the employee is doing his work while being on a standby duty, then he/she is entitled to a wage
or salary. However he/she is not entitled to a personal bonus for a standby
duty. Thus the work carried out during a standby duty is usually done beyond
the scope of stipulated weekly working hours. For this reason the employee
is usually entitled to a personal bonus (or lieu days) for overtime work. Such
a personal bonus is added up to a potential bonus for work carried out over the
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weekend or during public holidays. However, not all employees are automatically obliged to be on a standby duty.277
The employer and the employee must both agree on a standby duty in
advance. This must be done as a part of the employment contract or another
agreement. The employee is under no obligation to keep the standby duty and
the employer is not allowed to order such a standby duty unless they have
both agreed to do so. The period of the standby duty itself is not added up to
the stipulated weekly working hours, however, the work carried out during the
period of standby duty is always added up to the stipulated weekly working
hours. Thus the period of the standby duty is at the same time a period of rest.
However, as soon as the employee begins to carry out the work, the period of
rest is interrupted.
Flexible working hours (§ 85 of the Labour Code)
Flexible time scheduling of working hours is called flexible working hours.
The introduction as well as conditions and pre-requisites can be included in
the internal regulations of the employer (employment guidelines), they can
be regulated in the collective agreement or agreed on with the employee in
the employment contract or another type of contract or stipulated in a written
document dealing with the content of employment. Flexible working hours
involves two levels of working hours: basic working hours, during which the
employee is obliged to carry out the work ordered (i.e. he/she must be at the
workplace at the beginning of his/her working hours and leave the workplace
after the working hours have finished). The second level of working hours is
called optional working hours. This is the case when it is entirely up to the
employee when he/she will carry out the work and he is under no obligation
to carry out the work during a specific period. It is the employer who decides
about the scope of the two levels of working hours described above. The maximal length of a shift is 12 hours. The average working hours per week must
be finished within the balance period stipulated by the employer. However,
the period must not be longer than 26 successive weeks. When concluding
a collective agreement it must not be longer than 52 weeks. However, the employers will probably not use such a long balance period. The most frequent
balance period will probably be the period of one month. In some cases the
flexible working hours will probably not be applied. These are especially the
cases of business trips, certain obstructions or cases when the employer orders
an employee not to work flexible working hours. In such cases the employer
277
H RKA, P. a kol.: Zákoník práce a související ustanovení občanského zákoníku s podrobným
komentá em k 1. 9. 2008. 1. vydání, Anag, Olomouc, 2008, s. 249.
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must stipulate fixed working hours, i.e. the employer must spread the weekly
working hours over shifts.
Specific working hours (§ 86–87 of Labour Code)
The specific time scheduling of working hours when the employee is not
entitled to be assigned work in accordance with the stipulated weekly working hours and is remunerated with a lump sum wage is called specific working
hours. In such cases the employee is assigned work based on the need of the
employer and the hours worked as well as the wages earned are entered into
accounts after the end of the agreed/stipulated balance period. This is, from
the employer’s perspective, the most flexible form of working hours. However,
in order to make this form of working hours function properly, it is necessary
to set the rules properly and make the employee well informed. This type
of working hours can be introduced with all employers – businessmen. The
specific working hours can be introduced through a collective agreement as
well as through an internal regulation. The balance period is stipulated by the
employer in the collective agreement or it is stipulated in an internal regulation.
The maximal scope of the balance period stipulated in the internal regulation
is 26 successive weeks; in case of collective agreement it can be up to 52 successive weeks. The employer is under the obligation to draw up a timetable of
working hours per week covering the whole balance period and to make the
employee well informed about this timetable not later than one week before the
beginning of the working hours. The fact that the time scheduling of the specific
working hours is of a fictive nature is a specific element of this type of working hours. The employer is, in these cases, under no obligation to assign the
employees with work according to this time scheduling. The work is assigned
to the employee based on the need of the employer. The timetable is used by
the employer only in order to make up for the days off taken by the employees,
in cases of temporary incapacity to work as a result of injury or sickness and
other obstructions in work on the part of the employer and employee.
In cases of employers with trade unions it is possible to introduce extended
specific working hours. This consists in overtime work in the scope of maximally 120 hours being entered into working hours of the following balance
period. If such extended specific working hours are introduced, the employees
are protected by the following measures: the possibility to order an employee
to work during public holidays is limited, i.e. maximally twice during the
period of 4 successive weeks. Then the employee is entitled to an increase in
wages from 80% to 85% of the employee’s average income. The employee is
also entitled to an increase in the redundancy payment in cases of termination
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of employment through notice or agreement for organization reasons. This redundancy payment is increased to 4 up to 6-times of average monthly income
in relation to the number of years worked.
When applying the specific working hours the employer is under the obligation to keep an account of the employee’s working hours and the account of the
employee’s wages. At the end of the balance period the employer will show the
difference between the stipulated and worked working hours (thus finding out
the number of hours worked overtime and subsequently the amount of money to
make up for this work) as well as the difference between the fixed and achieved
wages. If the overall wages achieved by the employee exceeds the amount of
fixed wages added up, the employer will cover the deficit for the employee.
5.2.3 Period of rest (§ 78 of Labour Code)
The period which is not part of the working hours is regarded as the period
of rest. The period when the employee is on a standby duty is also regarded
as the period of rest (if, however, the employee is doing some work upon the
request of the employer while on a standby duty, it is not regarded as a period
of rest). Under the Labour Code the employees are entitled to two main types
of period of rest which must be provided to them by the employer. First it is
the continuous period of rest between two shifts and then it is a continuous
period of rest during a week.
5.2.3.1 Lunch break and the break to take a rest (§ 88 of Labour Code)
The employer is under the obligation to provide the employee with a lunch
break and a break for a rest taken after a period of continuous work. It should
be provided after a period of work lasting not more than 6 hours and the break
should last at least 30 minutes. A minor employee should be provided with
a break after a period of continuous work lasting not more than 4.5 hours. With
those types of work where the operation cannot be interrupted the employee
must be provided with a reasonable break for lunch and rest even without interrupting the operation; this period is regarded as the period of working hours.
A minor employee must always be provided with a lunch break and a break for
a rest. If the break has been divided into parts, then, one of the parts must last
at least 15 minutes. It is the employer who sets the time when the employee is
supposed to have a break for lunch and rest. It is not possible for the employer
to set the break for the beginning or the end of the working hours. However,
it is admissible for the employer to agree on the period when the lunch break
and the break for a rest will take place. This must be done in accordance with
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the valid law. The breaks provided in this way are not regarded as a part of
working hours.278
The lunch break and the break for a rest are regarded as a period of rest,
not as a period of working hours. Thus, the employer cannot order the employee to stay within the employer’s premises during the break, nor can he/she
order the employee to carry out certain activities etc. Thus, it is entirely up to
the employee to decide how he/she will spend the break for lunch and rest.
However, there are certain exceptions such as drinking alcoholic beverages or
consumption of other addictive substances or smoking at the workplace etc.
The Labour Code fully transposes the provisions of the directives 2003/European Directive and 94/33/European Directive when it sets the conditions for
(adult) employees saying that the employers are under the obligation to provide
the employees with a break after not more than 6 hours of continuous work and
in case of minor employees a break after not more than 4.5 hours of continuous
work. However, the 2003/88/European Directive does not regulate the possible division of such a break. The directive dealing with the minor employees
stipulates that these workers are entitled to, at least, thirty minutes, preferably
successive. Thus, the Labour Code specifies the conditions set out in the two
directives mentioned above so that the break, if divided into parts, should be
designed so that at least one part should last at least 15 minutes.
5.2.3.2 Safety breaks (§ 89 of Labour Code)
Contrary to the lunch break and the break to take a rest, safety break is
not compulsory for all employees. It is only provided in those cases when the
employer cannot organize the work for the employees in such a way that the
work done is not monotonous and exceedingly demanding for the employee’s
organism. The period when the employees can have a safety break and the
scope of this break are both regulated by law.279 Contrary to the lunch breaks
and the breaks for a rest the safety breaks are considered to be a part of working
hours. Under the Labour Code it is also possible to unite the lunch break and
the break for a rest with the safety break. However, in these cases the lunch
break or a part of the lunch break which is regarded as a safety break must be
regarded as a part of the working hours.
278
ZRUTSKÝ, J.: Pracovní doba. Právní rádce, 2010, č. 4, s. 22.
279
In this respect the main regulations are the Act upon the securing of further conditions of safety
and health protection at work, government decree upon the conditions of the protection of health
at work, the government decree upon the working hours of employees working in transportation, the government decree upon the work organization and work processes in transportation
and the ordinance of the Ministry of Transport upon the safety regulations in air traffic.
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5.2.3.3 A period of continuous rest between two shifts
(§ 90 of Labour Code)
The period of rest between two shifts and during a week must be a continuous period, thus it cannot be interrupted by work. Thus, if the employee is
on a standby duty and he must do some work while on a standby duty and the
period of rest is interrupted, this cannot be regarded as a period of continuous
rest. It is not possible to add up the individual periods of rest in order to make
it a continuous period of rest. Under the Directive 2003/88/European Directive
every employee is entitled to a minimal period of rest in a day. This period
should last at least 11 successive hours in a day (24 hours). The Czech legal
regulation is more generous, providing the employee with at least 12 successive
hours between the end of one shift and the beginning of the following one in a
day (24 hours). The period of such continuous rest between two shifts must last
at least 12 successive hours within 24 successive hours. However, in cases listed
in § 90 clause 2 of the Labour Code which include a wide range of possibilities,
including uneven time scheduling of working hours or over-time work, the period of continuous rest can be shortened to less than 12 hours (with the exception
of minor employees). However, in no way can the period of continuous rest be
less than 8 hours and the following period of continuous rest must be extended
to make up for the shortened period. This must not be over 12 hours.
5.2.3.4 The period of continuous rest in a week (§ 92 of the Labour Code)
The Directive 2003/88/European Directive imposes a duty upon all member
states to introduce compulsory measures so that every employee in each 7-day
working period is entitled to at least 24-hour period of continuous rest. The
Czech legal regulation goes beyond the limit of the directive providing the
employees with the period of continuous rest in a week lasting at least 35 hours.
Thus the requirements of the EU directive are met even with the maximal
possible shortening of the period of rest (under the Czech Labour Code) to
24 hours. The period of continuous rest in a week must last at least 35 hours
within 7 successive calendar days (in case of minor employees it is 48 hours). It
is not a calendar week starting on Monday and ending on Sunday that is meant
by the word ‘week’ used above, but rather any 7 successive calendar days. It is
the employee who sets the beginning of the week. This is usually done as a part
of a written time scheduling of the weekly working hours. The employer has
a right to shorten the period of continuous rest in a week (with the exception
of minor employees) in the same cases as he has the right to shorten the period
of continuous rest between two shifts. This possibility is regulated in the § 90
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clause 2 (e.g. in an uneven time scheduling, in cases of over-time work, etc.)
The employer can also shorten the period of continuous rest in a week in cases
of technological processes which cannot be interrupted. However, the period
of continuous rest in a week can never be shorter than 24 hours and moreover
the total sum of such a period cannot be shorter than 70 hours in a two-week’s
time. In some cases a special way of shortening the period of continuous rest
is used. This applies in agricultural works where it is possible to balance the
potential shortening of continuous rest in a week within 3 weeks (in such cases
the period of continuous rest must last 105 hours in total). With seasonal works
it is possible to balance the shortening of the period of continuous rest within
6 weeks (in these cases the period of continuous rest must last 210 hours in
total). However, not even in cases of agricultural works can ever the period
of continuous rest in a week be shorter than 24 hours. If business operation
allows, all employees should have the period of continuous rest in a week on
the same day and the period should include Sunday.280
Days off are those days when the employees are entitled to have a period
of continuous rest in a week and public holidays. The employer can order the
employees to do work on these days only exceptionally. On the day when the
employee is having a period of continuous rest in a week the employer can
only order the employee to carry out such necessary works which cannot be
done during the working days.
5.2.3.5 Holiday (§ 211–223 of Labour Code)
The employee’s right to a holiday is regulated by the provision § 211–223
of the Labour Code. The different types of holiday, which the employer is obliged to provide to the employee, can be divided into two categories. First it
is a general holiday provided in exchange for the hours and day worked and
then it is holiday which is provided to the employee in exchange for work
done in difficult working conditions. Apart from these types of holiday to
which the employee is entitled under the law, there is also another type of
holiday to which the employee is entitled based on the valid legal regulation.
The holiday can be agreed on in a collective agreement and in the individual
contract with the employee. The conditions under which this type of holiday
is provided should be conditions resulting purely from the nature of the work
done by the employee and not based on the personal or social status of the
employee; otherwise the principle of equal treatment as well as the prohibition
of discrimination would be violated.
280
DANDOVÁ, E.: Otazníky kolem pracovní doby. Právo pro podnikání a zam stnání, č. 4, s. 3.
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Those employees who have worked for one employer for at least 60 days in
a calendar year during a continuous working relation are entitled to a holiday
per calendar year or they are entitled to a proportional part of the holiday in
cases when the working relation did not last for the whole period of the calendar year. The day in which the employee has worked the major part of his
shift is regarded as a day worked; the parts of the shifts worked on different
days do not add up.
In order to decide what type of holiday can be offered and how long it
should last in a calendar year it is essential to know the length of the period
of the working relation and the number of the shifts worked. The proportional
part of holiday makes one twelfth of holiday per calendar year for each and
whole calendar month of continuous duration of the same working relation.
The employee who has changed a job is also entitled to a proportional part of
the holiday in the amount of one twelfth of the holiday for the month when
he/she changed the job in cases when the working relation with the new employer immediately follows the working relation with the previous one; in such
cases the employee is entitled to a proportional part of a holiday which must
be provided by the new employer.
The holiday duration per calendar year is minimally 4 weeks. For those
working in the state sector it is 5 weeks per calendar year. For those working
as pedagogical workers and academic workers at universities it is 8 weeks per
calendar year. Those employees who do not have a right to holiday per calendar
year and who do not have a right to proportional part of the holiday, because
they have not worked at least 60 days per calendar year for the same employer –
these employees are entitled to a holiday for the days worked in the duration
of one twelfth of the holiday for one calendar year for each 21 days worked in
the specific calendar year. Those employees who work for the same employer
for the whole calendar year under the ground when mining industrial minerals or when digging tunnels and drifts and those who carry out works, during
the whole calendar year, which are extraordinarily demanding are entitled to
a supplementary holiday in the duration of one week.
5.2.4 Derogations and exemptions
5.2.4.1 Further agreed over-time work in health service sector
The regulation dealing with further agreed over-time work was entered
into the Labor Code in 2008. It is based on the article 22 of the directive
2003/88/European Directive dealing with some aspects of the adjustment of
working hours. This regulation allows so-called “opt-out”, i.e. particular indi-
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viduals can ask to be excused from usual rules regulating the working hours.
Only those professions which are fully listed in the § 93 letter a) can apply
this “opt-out” – i.e. physicians, dentists, pharmacists who work in continuous
operations in hospitals or paramedics working in health service facilities, then
also those who work as health service workers and workers who work in health
service facilities but are not doctors working in continuous operations and at the
same time those who work in continuous operations of health service facilities
or facilities of paramedic workers (in these cases the work regime of the specific employee is also relevant, i.e. it is the workers themselves who also have
to work in a continuous work regime; the fact itself that the employee works
in a place of continuous operation is not enough in this category).
5.3
Working time in Poland
5.3.1 Introduction
In the area of the Polish system of law the structure of working time is
regulated with provisions of the Labour Code and detailed Acts.281 In Poland,
labour law concerning working time was amended substantially, also in recent
years.282 Because of the need to adapt provisions of the labour law to Community regulations, the amendment from 14 November 2003, among others,
fundamentally changed the Sixth Section of the Labour Code titled “Working
Time” (articles 128–15112 of the Labour Code).283
According to article 128 § 1 of the Labour Code, working time is understood as the time when the employee remains at the disposal of the employer
in a work establishment, or in any other place designated as the place of work
performing. In principle, Polish legal definition of working time complies with
Community guidelines, and the amendment mentioned above makes a step
further in liberalising regulations concerning working time.284
281
The Labour Code of 26 June 1974 (J. L. 1974 No. 24, item 141 with amendments); Act of
15 April 2011 on medical activity (J. L. 2011 No. 112, item 654 with amendments); Act of
27 August 1997 on vocational and social rehabilitation and employment of disabled persons
(J. L. 1997 No. 123, item 776 with amendments); Act of 16 April 2004 on working time of
drivers (J. L. 2004 No. 92, item 879 with amendments).
282
A detailed analysis has recently been provided by A. Sobczyk. See A. Sobczyk, Zasady prawnej
regulacji czasu pracy, 2005, pp. 40–110.
283
Act of 14 November 2003 to amend the Labour Code and some other Acts (J. L. 2003 No. 213,
item 2081).
284
Cf. L. Mitrus, Wpływ regulacji wspólnotowych na polskie prawo pracy, 2006, pp. 225–231.
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On that account, in principle, Polish provisions of the labour law concerning
working time are consistent with the law of the European Union, in particular
with the Directive 2003/88/EC of the European Parliament and of the Council
of 4 November 2003 concerning certain aspects of the organization of working time.285
The purpose of this study is to indicate interpretative doubts in relation to
the correct implementation EU regulations concerning working time in Poland.
5.3.2 Working time
In Polish doctrine special attention is directed to definitional problems
which exist in the area of the analysed section of the labour law.286 On that account, in case of working time correct legal provisions application is hampered
by obstacles of legislative character.287
According to article 128 § 3 point 1 of the Labour Code for the purposes
of calculating an employee’s working time a 24-hour period means – 24 successive hours, beginning when the employee starts to work in accordance with the
binding working time schedule. Inserting in the Labour Code the legal definition of the 24-hour period enhanced the need of distinguishing between the
terms the “24-hour period” and the term a “day” in the labour law.288 Without
doubt, due to the existing legal definition of the 24-hour period, identifying
the term a “day” (Polish term – “dzień”) with the term the “24-hour period”
(Polish term – “doba”) is inapplicable.
Making an assumption that the 24-hour period is not a calendar day, whether
or not the legislator uses the term a “day” or the term a “calendar day”, it leads
to serious consequences of legal character. For this reason for example, an
average five-day working week is not identical with the average, quintuple
285
See L. Mitrus, Wpływ regulacji…, p. 232. See also A. Sobczyk, Kilka uwag na tle nowelizacji
czasu pracy, “Praca i Zabezpieczenie Społeczne”, No. 12 (2003), p. 24.
286
See A. Sobczyk, Zasady prawnej…, p. 409.
287
Cf. A. Sobczyk, Zasady prawnej…, p. 412.
288
For a detailed analysis see B. Wagner, Pojęcie dnia pracy, “Praca i Zabezpieczenie Społeczne”
No. 2 (1985), p. 17; See also A. Sobczyk: Zasady prawnej…, s. 145–150. The legal definition of
the 24-hour period exists also in the act of 16 April 2004 on working time of drivers. According
to article 8 paragraph 1 of this Act for the purposes of calculating an employee’s working
time and establishing the conditions of remuneration for the overtime work, a 24-hour period
means – 24 successive hours, beginning when the driver starts work in accordance with the
binding working time schedule.
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twenty-four hours working week.289 In this context the quoted legal definition
of the 24-hour period was subject to serious criticism.
It seems that Polish legislator placing the legal definition of the 24-hour
period in the Labour Code paid attention only to the interdependence between
24-hours overtime and minimum uninterrupted rest in a 24-hour period, completely omitting the broader aspect of the 24-hour period.290
Moreover, the Polish legislator in the legal definition of the 24-hour period
generally did not predict situations, in which the employee decides on the date
when to begin work performing. Because the date when the employee begins
to perform work corresponds to the calculation period, another date when the
employee begins to perform work within scheduled working time will not
result in shifting the 24-hour period.291 It means that in the Polish labour law,
working time is always determined by a specific working time schedule.292
Such a situation contradicts the demands of making working time regulations
more flexible.293
The term the “24-hour period” and the term a “calendar day” influence
undoubtedly other legal constructions existing in the labour law. For example,
according to article 128 § 3 point 2 of the Labour Code for the purposes of
calculating an employee’s working time a week means – 7 successive calendar
days, beginning with the first day of the calculation period. The fact that in the
legal definition of the week the Polish legislator used the term a “calendar day”,
denotes that the 24-hour period goes beyond the notional scope of the week
in the earlier indicated meaning.294 Moreover, the lack of precise differentia-
289
See A. Sobczyk: Zasady prawnej…, s. 147. Cf. T. Nycz, Wybrane problemy czasu pracy,
“Mi dzynarodowy Przegląd Polityczny” No. 7 (2004), pp. 186–187.
290
See A. Sobczyk, Zasady prawnej…, p. 148.
291
If employee begins to perform work earlier than the day before, it will cause overtime work.
See A. Sobczyk, Zasady prawnej…, p. 146. See also A. Ró ańska, O pojęciu doby w przepisach
o czasie pracy, “Praca i Zabezpieczenie Społeczne” No. 7 (2005), p. 28.
292
According to article 142 of the Labour Code at the written request of an employee, the employer
may set out an individual schedule of his working time within the working time system covering
the employee.
293
G. Orłowski claims that the Labour Code allows for beginning work in the consecutive day
in frames of the same 24-hour period. See G. Orłowski, Rozpoczynanie pracy o godzinie
wcze niejszej niż w dniu poprzednim – uwagi, “Monitor Prawa Pracy” No. 1 (2005), pp. 347–349.
294
Calculation periods, due to the analysed legal definition of the week, cannot be calculated in
the 24-hour period. See. A. Sobczyk, Kilka uwag…, p. 22. According to article 130 § 1 of
the Labour Code the working time during which an employee is bound within the applicable
calculation period, established under article 129 § 1, is calculated as follows: by multiplying
40 hours by the number of weeks falling within the calculation period, and then by adding to
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tion between the 24-hour period and a calendar day has an adverse impact on
provisions concerning employee’s leave.295
Apart from indicated issues concerning the 24-hour period, in the Polish law
there exist other regulations causing serious terminological problems.
Without doubt, structures of daily working time and working time standards
are essential in Polish labour law. These terms exist in normative acts, judicial
decisions and literature. However, Polish Labour Code does not define mentioned notions. At the same time, terminological conflict occurred in the legal
science as a consequence causing immense problems with classifying these
very structures, least to say their internal appropriate systematizing.296 Many
times the Polish Labour Code uses these two terms interchangeably. Determining both working time standards and daily working time binding an employee
makes a keynote in establishing the working time schedule.
The schedule of working time was not also defined in the Polish Labour
Code which additionally deepens the terminological confusion. In literature, it
is possible to meet two ways of understanding of working time schedule. According to the first of them the working time schedule makes a working time
organization model viewed as integral part of the working time system.297 In the
latter the schedule of working time is identified with the working time timetable
(schedule of working time established for the particular employee).298
The lack of the terminological uniformity undoubtedly causes the adverse
impact on other legal constructions. For example, according to article 151 § 1
of the Labour Code work performed in excess of the working time standard
binding an employee, as well as work performed in excess of an extended daily
working time resulting from the system and schedule of working time binding
the employee, is overtime work. On that account it is necessary to define the
following notions in the Polish Labour Code: working time system (Polish
term – “system czasu pracy”), working time schedule (Polish term – “rozkład
the resulting number of hours the product of 8 hours and the number of days between Monday
and Friday remaining until the end of the calculation period.
295
See A. Sobczyk, Zasady prawnej…, s. 413.
296
Cf. T. Nycz, Pojęcie pracy w godzinach nadliczbowych, “Monitor Prawa Pracy” No. 8 (2004),
p. 219; M. Oleksyn, Czas pracy w praktyce, 2004, p. 861; K. Rączka, Nowe pojęcie pracy
w godzinach nadliczbowych, “Praca i Zabezpieczenie Społeczne” No. 3 (2004), p. 24; M. Rycak,
Wymiar i rozkład czasu pracy, 2008, p.41; L. Florek, Wymiar a norma czasu pracy (in:) Czas
pracy (redactor: L. Florek), 2011, pp. 61–69.
297
A. Sobczyk emphasises that the schedule of working time as the model of organization applies
to weekdays in which the work can be performed and working hours of employees or respective
groups of employees on particular days. See A. Sobczyk, Zasady prawnej…, p. 159.
298
See A. Chobot, Czas pracy w znowelizowanym kodeksie pracy, 2003, p. 84.
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czasu pracy”), daily working time (Polish term – “wymiar czasu pracy”),
working time standard (Polish term – “norma czasu pracy”), timetable of
working time (Polish term – “harmonogram czasu pracy”).299
A legal definition of the shift work can also give raise to interpretative
doubts. According to article 128 § 2 point 1 of the Labour Code whenever the
provisions of this Section refer to shift work – it means the performance of
work in accordance with the applicable working time schedule providing for
the change of the times of performing work by respective employees upon the
expiry of a specified number of hours, days or weeks. Differently than in case
of the Directive 2003/88/EC, legal definition of the shift work regulated in
the Polish Labour Code does not oblige employees to shift at the performance
of particular work. In such a situation, in the Polish labour law, an employee
for whom the employer will set different hours to begin work performing is
a shift employee.300
5.3.3 Periods of Rest
In the Polish Labour Code, differently than in case of the Directive of
2003/88/EC, a period of uninterrupted rest was not defined. According to article 132 § 1 of the Labour Code an employee is entitled to at least 11 hours
of uninterrupted rest in each 24-hour period. Due to the legal definition of the
24-hour period it is not possible for uninterrupted rest in a 24-hour period to
appear before the date when the employee begins to perform work. In this case
accepting a different legal solution by the Polish legislator is not contrary to
EU regulations.301
According to article 133 § 1 of the Labour Code an employee is entitled to
at least 35 hours of uninterrupted rest every week, including at least 11 hours
of uninterrupted rest in a 24-hour period, which is also consistent with provisions of the Directive 2003/88/EC. In the cases specified in article 132 § 2 of
the Labour Code (employees managing the work establishment in the name of
the employer; performing a rescue operation to protect human life or health, to
protect property or the environment, or to repair a breakdown), and in the event
of a change in the working time of an employee relocating to another shift in
299
See A. Sobczyk, Zasady prawnej…, p. 413. Cf. Ł. Prasołek, Rozkład, indywidualny rozkład
i harmonogram czasu pracy oraz ich wzajemne korelacje (in:) Czas pracy (redactor: L. Florek),
2011, pp. 196–197.
300
See A. Sobczyk, Kilka uwag…, pp. 21–22.
301
Polish regulation is rational, because it prevents accumulating successive shifts. See A. Sobczyk,
Zasady prawnej…, p. 410.
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accordance with the applicable working time system, the weekly uninterrupted
rest may include a lower number of hours, though not shorter than 24 hours
(article 133 § 2 of the Labour Code).
According to article 134 of the Labour Code if the employee’s working
time in a 24-hour period amounts to at least 6 hours, the employee has the right
to a break from work lasting at least 15 minutes; such a break is counted into
the working time. According to the article 131 § 1of the Labour Code weekly
working time, together with overtime hours, must not exceed an average of
48 hours in the applicable calculation period.
In principle, Polish regulation concerning periods of rest is consistent with
provisions of the Directive 2003/88/EC. However matters of rest in 24-hour
period and weekly rest cause doubts in the context of business trips and the
participation in employees’ trainings. Lack of the necessary regulation of this
issue, caused problems in correct establishing legal character of some elements
of business trips and employees’ trainings. Both Polish legal science and the
existing judicial decisions; up till now have not dealt with the above issues
ultimately.302 Meanwhile, due to provisions of the Directive 2003/88/EC, business trips and employees’ trainings should be categorized as periods of rest.
5.3.4 Derogations and exemptions
Under existing regulations beside the Polish Labour Code, which cause
serious doubts because of the implementation of provisions of the Directive
2003/88/EC, particular attention should be paid to not effective article 32j
of the Act of 30 August 1991 on health care institutions, which regulated the
construction of medical on-all shift.303
According to article 32j paragraph 1 of the Act of 30 August 1991 on health
care institutions, doctors and other employees with higher education performing
a medical profession, who are employed in the health care institution intended
for patients whose medical condition requires granting 24-hour health care,
could be obliged to perform medical on-call shift at this health care institution.
302
See S. Samol, Prawna problematyka pracowniczej podróży służbowej, 2002; M. Mrozowska,
Podróże służbowe krajowe i zagraniczne, “Polskie Prawo” No. 10 (2000), p. 18; A. Sobczyk,
Zasady prawnej…, pp. 123–137; S. Kula, Czas podróży służbowej, “Słu ba Pracownicza”
No. 5 (1993), p. 7; M. Nał cz, Czas pracy w delegacji służbowej, “Monitor Prawniczy” No. 6
(2000), p. 405; S. Driczyński, Elastyczno ć pojęcia czasu pracy, 2002, p. 137.
303
Act of 30 August 1991 on health care institutions (J. L. 1991 No. 91, item 408 with amendments). The Act of 30 August 1991 on health care institutions was the first to specify the
fundamental rights of patients. The general right to health care of every citizen is granted in
article 68 point 1 of the Polish Constitution.
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209
However, the amount of the medical on-call shifts performed by them could
not exceed 2 per week and 8 per month (article 32j paragraph 3). The time of
a medical on-call shift was not counted in the working time and for the time of
a on-call shift the employee was not entitled to time off corresponding to the
length of the on-call shift (only in particularly justified cases, the head of the
organisational unit could release the employee from the duty to perform work
after performed on-call shift, and employee was still entitled to the remuneration – article 32j paragraph 2 and 7). Different provisions regulated matters of
the remuneration for work during the time of a medical on-call shift.
However according to the judgement of the Court of Justice of the European
Union, Directive 93/104/EC concerning certain aspects of the organisation of
working time, as amended by Directive 2000/34/EC and Directive 2003/88/EC,
concerning certain aspects of the organisation of working time, should be interpreted as: precluding national legislation under which on-call duty performed
by a doctor under a system where he is expected to be physically present at
the place of work, but in the course of which he does no actual work, is not
treated as wholly constituting “working time” within the meaning of the said
directives; not preventing a Member State from applying legislation on the remuneration of workers and concerning on-call duties performed by them at the
workplace which makes a distinction between the treatment of periods in the
course of which work is actually done and those during which no actual work is
done, provided that such a system wholly guarantees the practical effect of the
rights conferred on workers by the said directives in order to ensure the effective protection of their health and safety304. Therefore, article 32j paragraph 2
of the Act of 30 August 1991 on health care institutions, according to which the
time of a medical on-call shift was not counted in the working time, until the
amendment, was contrary to EU regulations what was signalled many times in
the Polish legal science as well as in Polish judicial decisions.305
304
See Judgment of 3 October 2000, SIMAP v CSCGV (C-303/98, ECR 2000 p. I-7963);
Judgement of 2 February 2001, Wolfgang Lange v Georg Schünemann GmbH (C-350/99,
p. I-0106); Judgement of 9 September 2003, Landeshauptstadt Kiel v Norberti Jaeger
(C-151/02, ECR 2003 p. I-8415); Order of 11 January 2007, Jan Vorel v Nemocnice CeskyKrumlov
(C-437/05, ECR 2007, p. I-333). A. Kijowski said before Polish accession to the European Union,
the medical on-call shift includes not only the effective performance of the professional activities
of a doctor, but also the time of readiness to perform the task. See A. Kijowski, Prawne problemy
czasu pracy lekarzy, “Praca i Zabezpieczenie Społeczne” No. 1 (1998), p. 14.
305
Cf. M. Rycak, Czas pracy w zakładach opieki zdrowotnej, 2008, p. 103; Z. Kubot, Praca
ponadwymiarowa, “Praca i Zabezpieczenie Społeczne” No. 12 (2005), p. 25; L. Mitrus,
Wpływ regulacji wspólnotowych na polskie prawo pracy, 2006, pp. 228–229; Judgement of
the Supreme Court of 3 June 2008 (Case No. I PZP 10/07), LEX No. 379845; Judgement of
the Supreme Court of 21 June 2011 (Case No. III PK 96/10), LEX No. 1095945; Resolution of
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In the Polish legal science it was emphasized that the principle of primacy
of European law over national law meant that the provision of article 32j
paragraph 2 of the Act of 30 August 1991 on health care institutions was not
invalid, but could not be applied.306
On 1 January 2008 the provisions of the Act of 24 August 2007 came into
effect to amend the Act of 30 August 1991 on health care institutions and the
Act of 27 July 2005 on higher education.307 The amendment changed the previously existing provisions of medical on-call shift and working time in health
care. First of all, it should be noted that in accordance with the new article 32j
paragraph 2 of analysed Act, the time of a medical on-call shift was counted
into the working time.
The Act of 15 April 2011 on medical activity, often described as the most
important legal change in health care for many years, was passed on 15 April
2011 and came into force on 1 July 2011. According to article 95 paragraphs 1
and 2 of the Act of 15 April 2011 on medical activity, on-call shift means
professional activities performance beyond regular working hours by employees with higher education performing a medical profession, being employed
in the health care institution intended for patients whose medical condition
requires granting stationary and 24-hour health care.308 According to article
95 paragraph 3 of analysed Act, the time of a medical on-call shift is counted
into the working time. According to article 96 paragraph 1 of analysed Act an
employer at his written demand may oblige an employee who is performing
medical on-call shifts to work more than an average of 48 hours per week in
the adopted calculation period. Moreover, the Act of 15 April 2011 on medical
activity regulates in detail the rights of employees performing on-call shifts to
rest in 24-hour period and weekly rest (article 97).
the Supreme Court panel of Seven Judges of 13 March 2008 (Case No. I PZP 11/07), “Monitor
Prawa Pracy” No. 7 (2008).
306
Cf. Z. Kubot, Praca ponadwymiarowa…, p. 25; L. Florek, Znaczenie wspólnotowego prawa
pracy, “Praca i Zabezpieczenie Społeczne” No. 5 (2004), pp. 2–8; I. Boruta, Dyrektywy Wspólnoty Europejskiej jako źródło prawa pracy w Polsce, “Praca i Zabezpieczenie Społeczne” No. 5
(2005), pp. 2–7.
307
Act of 24 August 2007 to amend the Act of 30 August 1991 on health care institutions and the
Act of 27 July 2005 on higher education (J. L. 2007 No. 176, item 1239).
308
According to article 1515 § 1 of the Labour Code an employer may oblige an employee to
remain on call beyond regular working hours to provide work determined in an employment
contract in the work establishment or in another place designated by the employer (on-call
shift).
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5.3.5 Conclusion
The complexity of the existing legal regulations is frequently another difficulty related to implementation of EU law on working time.
The Act of 16 April 2004 on working time of drivers implemented the Directive 2002/15/EC of the European Parliament and of the Council of 11 March
2002 on the organisation of the working time of persons performing mobile
road transport activities. Simultaneously in the Polish law in the context of
drivers’ working time Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain
social legislation relating to road transport and amending Council Regulations
(EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation
(EEC) No 3820/85 finds the direct application. Moreover, Poland is a party to
the European Agreement concerning the Work of Crews of Vehicles Engaged
in International Road Transport (AETR), done in Geneva on 1 July 1970.
The Polish Act of drivers’ working time, was at first highly criticized. In the
literature, it was even found that this law is a normative act written in incomprehensible language, it is illogical and full of legal loopholes.309 Furthermore,
shortly after this Act came into force it was emphasized in the Polish legal
science that the Act has adapted national legislation on drivers’ working time
to European Union law only to a limited extent.310
Amendments to the Polish Act on working time of drivers were aimed at
improving the legislative level and leading to more and more comprehensive
the EU regulations implementation. The last amendment of 16 September 2011,
which came into force on 1 January 2012, resulted in significant changes on issues relating to: night time work, timetable of working time, records of working
time.311 The purpose of this amendment was primarily more flexible organisation
of drivers’ work and adjustment of national legislation to EU requirements.
The purpose of this study was to identify the solutions which cause the most
serious doubts in the proper implementation of EU regulations on working
time by Poland. In principle, the Polish regulation of working time complies
with Community assumptions (for example, provisions on night time work).312
309
See M. Oleksyn, Czas pracy kierowców (in:) Europeizacja polskiego prawa pracy (redactor:
W. Sanetra), 2004, p. 200. See also A. Sobczyk, Międzynarodowe regulacje pracy kierowców
(in:) Studia z zakresu prawa pracy i polityki społecznej (redactor: A. wiątkowski), 2005, p. 27.
310
Cf. M. Oleksyn, Czas pracy…, p. 200.
311
Act of 16 September 2011 to amend the Act of 6 September 2001 on road transport and other
Acts (J. L. 2011 No. 244, item 1454).
312
According to article 1517 § 1 of the Labour Code night time work includes any 8 hours between
9 p.m. and 7 p.m.
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It can be specified that there are more cases of false or incomplete adaptation
of EU regulations in the field of working time in the Polish labour law, which
were not analysed in this study. However, previous studies allow to present
general conclusions.
In summary, a request of thoughtful and comprehensive simplification of
the regulation of working time must be formulated as well as an attempt to
make it more flexible.313 One of the most serious obstacles to a more flexible
regulation of working time is Polish legal definition of the 24-hour period,
indeed not existing at the Directive 2003/88/EC.314 Similar doubts relate to
such notions as: working time system, working time schedule, daily working
time, working time standard, timetable of working time.
5.4
Working time in Slovakia
5.4.1 Introduction
The right to health and safety at work as well as the right to adequate rest
and working time has a constitutional basis. Under the Article 36 of the Constitution of the Slovak Republic the employees have right to fair and satisfactory
working conditions. The law guarantees (Labour Code) the right to the highest
acceptable amount of working hours as well as right to adequate rest after the
realized work and the right to the shortest permissible length of paid vacation.
The right to safety and health at work and the rights concerning the working
time belong to the fundamental principles of the Labour Code, as enshrined in
the Article 3 of the Labour Code.
Implementation of the Directive 93/104/EEC and subsequently of the Directive 2003/88/EC on certain aspects of working time took place in Slovakia
gradually. The working time is regulated by Section 85–99 of the Labour Code
and vacation by Section 100–117 of the Labour Code.315
313
See M. Rycak, Podstawowe instytucje prawne i pojęcia czasu pracy w nowych krajach członkowskich Unii Europejskiej (in:) Czas pracy w nowych krajach członkowskich Unii Europejskiej. Aspekty ekonomiczne, prawne i społeczne (redactor: H. Strzemińska), 2008, p. 184.
314
Cf. M. Rycak, Podstawowe instytucje prawne…, p. 184.
315
Barancová, H.: Pracovný čas podľa Zákonníka práce vo svetle aktuálnej judikatúry Súdneho
dvora EÚ. In: Justičná revue. – ISSN 1335-6461. – Roč. 64, č. 3 (2012), p. 413–428.
5 Working time
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5.4.2 Working time
5.4.2.1 Definitions
According to Directive 2003/88/EC, the working time means any time,
during which the employee works according to the employer’s instructions
and performs his/her activity or duties.316 The Labour Code (Section 85 (1)
defines the working time in such a way that its basic characteristic is a personal
availability of an employee towards an employer and work performance and
fulfilment of his tasks.317
A work shift is part of the stipulated weekly working time which, on the
basis of a predetermined timetable of work shifts, an employee shall be obliged
to work within 24 consecutive hours and work break. (Section 90(1) of the
Labour Code).
Rest time, according to the Labour Code, is any period which is not considered as working time. Pursuant to the Section 98 of the Labour Code, night
work is any work done in the time between 22:00 hours and 06:00 hours.
For the purposes of the Labour Code an employee working at night shall
be an employee who performs work requiring regular performance at night, to
the extent of at least three consecutive hours or, who presumably works at night,
for a minimum of 500 hours per year (Section 98 (2) of the Labour Code).
According to the Section 90 Paragraph 2 of the Labour Code shift work
shall be a manner of organising working time in which employee alternate at
the same workplace according to a certain schedule and, in the course of certain
period of days or weeks, work at differing times. This also applies in the event
when at alternating of employees in shifts work arrive to parallel performance
of work by employees from related shifts work at the same time. An employee
working shift work shall be every employee whose work schedule is organised
in the form of working on shifts.
316
Barancová, H.: Pracovný čas podľa Zákonníka práce vo svetle aktuálnej judikatúry Súdneho
dvora EÚ. In: Justičná revue. Roč. 64, č. 3 (2012), p. 413–428.
317
Križan, V.: Flexibilita pracovného času. In: Liberalizácia pracovného práva – možnosti a obmedzenia. – Trnava: Typi Universitatis Tyrnaviensis, vydavateľstvo Trnavskej univerzity, spoločné pracovisko TU a Vedy, 2007, p. 127–137.
Kotira, P.: Najvýznamnejšie zmeny právnej úpravy pracovného času po novele Zákonníka práce
a ich aplikácie v praxi = The most significant changes of legal rules applicable to working hours
after the amendment to the Labour Code and their practical applications. In: Bulletin slovenskej
advokácie. Roč. 18, č. 4 (2012), p. 16–22.
Švec, M. (50 %), Kotira, P. (50 %): Pracovný čas v kontexte ostatných zmien Zákonníka práce
i v úvahách de lege ferenda = Working time in the context of the other changes of the Labour
Code and in the considerations de lege ferenda. In: Dôstojnosť zamestnanca v pracovnoprávnych vzťahoch. – Bratislava: Sprint dva, 2011, p. 258–281.
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The Slovak Labour Code does not define the concepts of mobile worker
and offshore work.
We consider as a deficiency of this Directive that it is based on the principle
of dichotomy of working time which represents a distribution of 24-hour day
at a working time part and the rest time part. Such a division is not optimal for
certain professions, especially for medical practice, because it does not provide
special legal category of stand-by duty, which as a term does not satisfy all the
features of the concept of working time (as an employee during stand-by time
does not work) and nor the features of the concept of rest time (the employee
is on the disposal of the employer).
5.4.2.2 Length of working time
The Labour Code (Section 85 (5)) uses weekly working time as a basis and
defines the maximum weekly working time of employees as follows:
maximum 40 hours a week,
maximum 38 ¾ hours for two-shift operations,
maximum 37 ¾ hours for three-shift or continuous operations,
the working time of employees handling proven carcinogenic substances,
engaged in working processes with a carcinogenic risk or performing activities leading to exposure to A category ionizing radiation in a controlled zone
with sources of ionizing radiation, is a maximum of 33 ½ hours weekly.
The Labour Code established the maximum weekly working time in each
employment relationship separately. Pursuant to Section 50 of the Labour Code,
if the employee concluded several employments, the arising tights and duties
will be assessed separately.
In the area of working time, the Labour Code provides to employers and
employees unlimited possibilities of work. The employee can even engage in
several other full-time work relations without the total extent of work during
the week being counted together. Therefore, the practice in the Slovak Republic
is very often that an employee works 2× 48 hours in one week for two fulltime employers.
The working time of young workers working for more than one employer
is counted together. The working time of young workers below the age of 16
is a maximum of 30 hours weekly and for young workers over the age of 16
a maximum of 37 and ½ hours weekly (Section 85 (6) of the Labour Code).
Under the Section 85 (4) Labour Code, over the period of 24 hours working time must not exceed eight hours, unless otherwise specified in the Labour
Code. In the case of irregularly distributed working time, the working time of
5 Working time
215
an employee over the period of 24 hours must not exceed twelve hours and,
with regularly distributed working time, it must not exceed nine hours.
In the case of regularly distributed working time, the average working time
is calculated for the period max. four weeks, while, in the case of irregularly
distributed working time, it is calculated for the period max. four or possibly
max. twelve months (the reference period up to twelve months must be agreed
with employee representatives only in collective agreement or in other agreement. The employer is not entitled to decide on longer reference period- from
four to twelve months unilaterally, the consent of employee representatives is
necessary.).
As regards maximum working time, the Labour Code specifies that the average weekly working time, including overtime work, must not exceed 48 hours
(Section 85 (9)). On average, the overtime cannot exceed eight hours in a week
in a period of the maximum of four consecutive months (a longer period may
be agreed between the employer and employee representatives, but no more
than 12 consecutive months).318
The Slovak Labour Code does not define maximum annual working time.
5.4.2.3 Pattern of work
The Labour Code provides for even distribution of working time, uneven
distribution and flexible working time. A special way of the uneven distribution
of working time is the working time account.
Beginning and end of working time and schedule of work shifts is determined by the employer after consultation with employees’ representatives and
s/he notifies it in writing at the workplace that is accessible to the employees.
The employer must notify the employees about their working time at least one
week in advance and with validity for at least a week (Section 80 (4, 9) of the
Labour Code).
An evenly scheduled working time (Section 86 of the Labour Code) is
such a time where the extent of the working time in a single week is the same or
it differs maximum by 3 hours and the working time in the individual days does
not exceed 9 hours. The decision on scheduling the weekly working time belongs to the employer’s power; the decision is made upon a discussion with the
employees’ representatives. The evenly scheduled working time is distributed
for five days a week with reference period up to four weeks.
318
Barancová, H.: Zákonník práce. Komentár. 2. vydanie. Praha, C. H. Beck 2012, p. 571–601.
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If character of the work or conditions of the plant does not allow an even
scheduling of the working time into the individual weeks, the employer can
schedule the working time also unevenly (Section 87 of the Labour Code)
into the individual weeks, after an agreement with the employees’ representatives or after an agreement with an employee. Using the scheduling term of
maximum 4 months, in exceptional cases of 12 months, there can be even bigger differences between the extent of the working time in the individual weeks.
The maximum length of a working shift cannot exceed 12 hours.
A working time account is a special method for the uneven distribution
of working time (Section 87a), that enables the employer to schedule working
time so that when there is a greater need for work an employee works more
hours than their stipulated weekly working time and where there is less need
for work the employee works fewer hours than their stipulated weekly working
time or may not work at all (negative bill of working time account). Only after
the reckoning period, which is reflected by the Labour Code up to 30 months
the employer and employee reckon the negative and positive bills of working
time account. Labour Code allows the introduction of working time account
only upon agreement between the employer and the employees’ representatives
or on the basis of a collective agreement.319
A special way of distribution of working time is the flexible working time,
which is in Section 88 of the Labour Code stated very liberally and provides
wide scope for contractual freedom. Employer under an agreement with employees’ representatives or by collective agreement may implement the flexible
working time as a working day, working week, four week working period or
another working period (e.g. even one year).
Basic working time is a time segment in which the employee is obliged to
be in the workplace. Optional working time is a time segment during which
the employee is obliged to be present in the workplace in order to complete
operational time. Operational time is the overall working time that an employee
is obliged to work in a flexible working period determined by his/her employer.
The length of a work shift where flexible working time is implemented may
be at most 12 hours.
The Labour Code provides some protection to employees with children. The
employer shall be obliged to take into account the needs of pregnant women,
women and men continuously caring for children when designating employees
to work shifts (Section 1645 of the Labour Code).
319
Švec, M.: Vybrané problémy pracovného času v kontexte flexibility pracovného práva: (opt
out a flexikonto). In: Quo vadis, pracovné právo? – Trnava: Trnavská univerzita v Trnave,
Právnická fakulta, 2009, 16 p.
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If a pregnant woman, men and women continuously caring for a child
younger than 15 years of age requests a reduction in working time or other
arrangement to the fixed weekly working time, the employer shall be obliged
to accommodate their request if such is not prevented by substantive operational reasons.
A pregnant woman, a woman or man continuously caring for a child younger than three years old, a lone man or woman continuously caring for a child
younger than 15 years old may be employed for overtime work only with their
agreement. Stand-by duty may only be agreed with these employees.
5.4.2.4 Night work
An employee working at night is such an employee who works at least
3 hours at night out of his working time, within consecutive 24 hours, and an
employee who should work at night at least 500 hours a year (Section 98 (2)
of the Labour Code).
The Slovak Labour Code requires employers to follow specific safety rules
and conditions for night work. Expenses for the examination of the Employee’s
health capacity shall be borne by the employer. The Labour Code states special
requirements for equipment of the workplace in terms of safety. An employer
is obliged to negotiate regularly the organisation of night work with the employees’ representatives.
Under Section 98 of the Labour Code night work is work performed between 22 p.m. and 6 a.m. (Section 98 of the Labour Code). Under Section 98 (3)
and (4) of the Labour Code, the employer is obliged to ensure that an employee
performing night work undergoes medical examination prior to assignment to
night work and then regularly during the performance of night work, at least
once a year.
In the case of a four-month scheduling period, the maximum length of
a night shift is eight hours. If an employee performs demanding physical or
mental work, or work posing a risk to life or health, the period of performance
of night work must not exceed eight hours within 24 hours.
Under the Section 90 (8) of the Labour Code, the employer cannot distribute
working time in such a way that an employee would work night shifts over two
consecutive weeks, unless the nature of the work and operational conditions
make it impossible to distribute the working time differently. If the employer
agrees with the employee, the employee may also work under these conditions
at night work longer than two weeks.
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5.4.2.5 Overtime work
Overtime (Section 97 of the Labour Code)320 is work performed by an employee following the employer’s orders or with the employer’s consent above
the determined weekly working time resulting from the previously agreed determined scheduling of the working time, and performed out of the scheduled
working shifts.321 The exception are employees with a shorter working time,
in which case the overtime is already the work exceeding the agreed weekly
shortened working time.
The employer can order the overtime only in cases of temporary or urgent
increased need for work, if it is a public interest, even for the time of the continuous rest between two shifts. However, the continuous rest between two
shifts can not be shorter than eight hours.
As regards maximum working time, the Labour Code specifies that the average weekly working time, including overtime work, must not exceed 48 hours.
On average, the overtime can not exceed eight hours in a week in a period of
the maximum of four consecutive months (a longer reference period may be
agreed between the employer and employee representatives, but no more than
12 consecutive months).
Employers cannot force employees to work more than 48 hours weekly on
average and sanction employees if they do not want to work over this limit.
In a calendar year, the employee can be ordered to work overtime in the
maximum of 150 hours. Due to serious reasons, the employer can agree the
overtime exceeding this limit, however, not more than 250 hours (i.e. a total
of 400 hours per year). In the case of medical staff the employer may order up
to 250 hours and they can negotiate with their employees another additional
150 hours per year.
With the employee performing hazardous work, the overtime can be agreed
in exceptional cases to secure a safe and continuous production process, after
the previous consent of the employees’ representatives. Work performed by an
employee out of the scheduled working shifts without the employer’s consent
is not overtime.
With regard to an employee with reduced working time (part-time work),
overtime work is work exceeding his/her weekly working time. Overtime work
may not be ordered on such an employee.
320
Barancová, H.: Zákonník práce. Komentár. 2. vydanie. Praha, C. H. Beck 2012, p. 618–622.
321
Križan, V.: K problematike pracovnej pohotovosti a práce nadčas. In: Zborník príspevkov z vedeckej konferencie doktorandov a školiteľov Právnickej fakulty Trnavskej univerzity v Trnave. –
Trnava: Trnavská univerzita, 2007, p. 230–243.
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5.4.2.6 Specific institutes of working time
The Labour Code enables an employer to agree with an employee in the
employment contract on a shorter working time than the established weekly
working time (Part – time employment contract regulated by Section 49 of the
Labour Code). Performance of work for a shorter time is made within the employment and all rights and obligations arising from the employment are also
applicable to the employee who works for shorter working time. The employee
working for shorter working time is entitled to a salary corresponding to the
agreed shorter working time.
The basic characteristic of the stand-by duty (Section 96 of the Labour
Code) is performance of inevitable work that must be executed in justifiable
events out of the extent of the scheduled working shifts. Standby duty can be
performed at the workplace or another agreed location.322
Time when the employee is on an agreed place out of his/her workplace and
is prepared for work performance, but does not perform the work, is an inactive
part of the standby duty that is not counted into the working time.
The Labour Code distinguishes an active and inactive part of Standby duty
at the workplace. Time when the employee is at the workplace and is prepared
for work performance, but does not perform the work, is an inactive part of the
standby duty that is considered the working time. The active part of standby
duty is the time during which the employee performs work and this is overtime
work.
The employer can order the stand-by duty maximum 8 hours in a week,
with the maximum extent 100 hours in a calendar year. Above this extent, the
stand-by duty is allowed only after agreement with an employee.
The Labour Code assumes different remuneration, depending on the fact
whether the employee performs the stand-by duty at the employer’s workplace,
while not performing any work, or at any other place than the employer’s
workplace.
The active part of stand-by duty is overtime and it is remunerated as overtime. The inactive part of stand-by duty is considered as working time. For
every hour of the inactive part of work standby in the workplace the employees
are entitled to pay amounting to a proportionate part of their basic pay, which
shall not be less than minimum wage in EUR per hour.
Stand-by duty outside the workplace is remunerated differently. For every
hour of the inactive part of stand-by duty outside the workplace, employees
322
Križan, V.: K problematike pracovnej pohotovosti a práce nadčas. In: Zborník príspevkov z vedeckej konferencie doktorandov a školiteľov Právnickej fakulty Trnavskej univerzity v Trnave. –
Trnava: Trnavská univerzita, 2007, p. 230–243.
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are entitled to pay amounting to at least 20% of the minimum wage in EUR
per hour (the minimum wage is regulated by Act on Minimum Wage and the
amount of minimum wage is every calendar year established by Governmental
Decree (as of 1 January in the respective calendar year)).
5.4.3 Periods of Rest
5.4.3.1 A rest break
Rest in the course of a working shift is the only type of rest granted the
employee during the working shift. The Labour Code provides for a break
time of 30 minutes, which must be granted if the employee’s working shift is
longer than 6 hours or 4 ½ hours in the case of young workers (Section 91 of
the Labour Code).
The break for eating and rest, however, cannot be granted at the beginning
of working time or after its termination.
Apart from the break in work for eating and rest the Labour Code provides
that in some types of profession the employer must also grant breaks in work
for reasons of occupational safety and health protection, which are also considered as a part of working time.
The mothers who breastfeeding their children have a special break in work
for breastfeeding. They are entitled to two 30-minute breaks up to the sixth
month of the child’s age and one 30-minute break up to the ninth month of the
child’s age per shift. If the mother works in a part-time job, not shorter than
a half-time job, she is entitled to one 30-minute break for every child up to the
sixth month of age. Breaks in work for breastfeeding are considered as part of
working time (Section 170 of the Labour Code).
5.4.3.2 Continuous daily rest
In the interest of protection of employee’s health, the Labour Code establishes the 12-hour minimum length of daily rest after work, in certain cases
only 8 hours (Section 92 of the Labour Code).323 Unilateral cut of the daily
continuous rest to 8 hours is possible only in the detailed reasons and toward
employees who are at least 18 years old. Cut of the daily continuous rest is
absolutely excluded in case of juvenile employees. If the employee cuts the
daily rest after the performed work, he is obliged, within 30 days, to additionally provide to the employer an equal continuous alternative rest. The employer
must fulfil such a duty even without the employee’s request.
323
Barancová, H.: Zákonník práce. Komentár. 2. vydanie. Praha, C. H. Beck 2012, p. 604–605.
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5.4.3.3 Continuous rest in the week
The employer is obliged to establish for the employees such a continuous
rest in the week that they have at least two consecutive rest days in one week
(Section 93 of the Labour Code).324 Such a day must be Saturday and Sunday
or Sunday and Monday. The continuous rest in the week can be determined in
other days only if the nature of work and operating conditions do not enable
to schedule the working time so that the rest is on Saturday and Sunday or
Sunday and Monday. The Labour Code does not stipulate the nature of work
and operating conditions of the employer. In case the continuous rest in the
week cannot be determined due to the nature of work and operating conditions,
the employer will schedule the working time so that the continuous rest in the
week is on two other days of the week.
The employer is entitled to cut the weekly rest to 24 hours only after agreement with the employee’s representatives. According to the new legal status,
an individual agreement between the employer and the employee of cut of
the weekly rest is permissible only in a case when there are no employee
representatives. The employer is entitled to do so exclusively in relation to
employees more than 18 years old. When cutting the weekly rest, the employer
is obliges to additionally provide for the employee an alternative continuous
weekly rest within 8 months from the date when the continuous weekly rest
should have been given. The legislator thus acts in the favour of those employers that carry out seasonal work as their activity.
If the nature of work and operating conditions do not allow to schedule
the working time as described above, the employer can, to an employee more
than 18 years old and after agreement with the employees’ representatives or,
if there are no employees’ representatives, after agreement with the employee,
schedule the working time of the employee so that he/she has at least 35 hours
of continuous rest in a week, on Sunday and a part of the day before Sunday
or a part of the day following Sunday.
If character of work and operation conditions do not allow to schedule
working time as aforementioned, the employer may, after agreement with the
employees’ representatives or, if there are no employees’ representatives in the
workplace, after agreement with the employee, schedule an employee aged
over 18 years at least 24 hours of continuous rest once in two weeks, which
should be on Sunday, provided that the employer provides the employee with
alternative continuous rest in the week within eight months of the date when
continuous rest should have been provided during the week.
324
Barancová, H.: Zákonník práce. Komentár. 2. vydanie. Praha, C. H. Beck 2012, p. 606–610.
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5.4.3.4 Days of rest
Days of rest can be characterized as continuous time off that cannot be
divided into parts. Unlike other days of continuous rest in the week, the days
of rest are determined by Act no. 241/1993 Coll. on state holidays, public holidays and memorial days. On the day of rest, the employee can be only ordered
such work that can be ordered on days of the continuous rest of the employee
in the week, work of continuous operation and work necessary to guard the
employer’s objects. Pursuant to Section 84 of the Labour Code, the days of rest
are days of the continuous rest of employee in the week and holidays.
Work on the days of rest can be ordered only exceptionally, following consultation with employee representatives. Work on Sundays and other days of
rest is not permitted on principle. However, Section 94 of the Labour Code
provides exceptions from this rule in selected types of working activities.
The employer is not allowed to agree with the employee or order work on
state holiday like retail trade on 1 January, Easter Sunday, 24 December (after
12 a.m.) and 25 December (exceptions: in filling stations, pharmacies, airports,
ports, public traffic service and hospitals and ticket offices).
5.4.3.5 Vacation
The right to vacation is of a constitutional nature and is a purely personal
right that cannot be transferred to any other physical entity. Due to its personallegal nature, the right to vacation ceases to exist with the death of an employee.
The heirs after the employee are transferred only the claim to compensation
for salary for not taken vacation. An employee cannot waive his/her right to
vacation.
A person entitled to the right to vacation is a physical entity with a legal status of an employee, i.e. a physical entity in the employment with the employer.
Although the person entitled to vacation is a natural person in the employment to the employer, the Labour Code gives the actual execution of such
a constitutional right to the employer. Pursuant to Section 111 of the Labour
Code, the employer determines the commencement of the vacation; taking into
account the employee’s justified interests.
Annual Vacation
The annual vacation belongs to an employee who works at least 60 days
in a calendar year, provided the employment at the same employer has lasted
continuously for the entire calendar year.
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A claim to an aliquot part of the annual vacation belongs to the employees
in case the employee has worked at the employer for 60 days in the respective
calendar year but his/her employment relationship has not been continuous
during the entire calendar year. The aliquot part of the annual vacation is a one
twelfth of the annual holiday for each calendar month of the continuous duration of the same employment relationship.
The basic vacation length is provided by the Labour Code as at least 4 weeks.
The employees who have reached 33 years of age are entitled to at least five
weeks of vacation.
The paid holiday of the headmaster of a school, the director of a school
upbringing and education facility, the director of a special educational facility
and their deputies, a teacher, a teaching assistant, a vocational training instructor and an educator shall be at least eight weeks per calendar year.
Vacation for Effective Days
If the employee has not worked at least 60 days in the respective calendar
year for the same employer, he is not entitled to annual vacation. However,
he is entitled to the vacation for the effective days of work amounting to 1/12
of due annual vacation for every 21 effective days of work in the respective
calendar year.
Additional Vacation
In contradiction to annual vacation or the vacation for effective days of
work the additional vacation Under Section 106 of the Labour Code, additional
vacation of one week is provided to employees working the entire calendar year
under the ground, in mineral extraction or driving of tunnels, and employees
working in unfavourable and hazardous conditions or performing exceptionally
difficult or harmful work.
5.4.4 Derogations and exemptions
As regards maximum working time, the Labour Code specifies that the average weekly working time, including overtime work, must not exceed 48 hours.
On average, the overtime cannot exceed eight hours in a week in a period of the
maximum of four consecutive months (a longer period may be agreed between
the employer and employee representatives, but no more than 12 consecutive
months).
An exception from the maximum weekly working time applies to healthcare
employees. The working time of healthcare employees may exceed 48 hours on
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average over the period of no more than four consecutive months. Nevertheless,
this extended working time limit is possible only if the employee gives consent
to this amount of working time. Another requirement for the application of
the extended working time limit is that weekly working time does not exceed
56 hours on average. Moreover, the employer is obliged to maintain up-to-date records on employees working more than 48 hours weekly and present
these records to the competent health and safety at work authority on request.
Equally, the employer is obliged to notify the relevant health and safety at work
authority of extended working time if requested by the authority.
5.4.5 Conclusion
The majority of the numerous legislative changes of the Labour Code in
the recent years have followed the aim of a substantial increase in flexibility
of labour relations. However, certain changes which were aimed at increasing
the flexibility of labour relations in the field of working time also reduced the
level of the social protection of employees. The existing employment legislation of the working time in the Labour Code provides that an employee can
have even more full-time employments, uneven distribution of the working
time with a scheduling period of 12 months and in addition to that the working
time account with scheduling period up to 30 months, the liberal provision of
flexible working time and legal system – opt out for health care workers with
a weekly working time of 56 hours, which until 1st January 2013 was applied
also on senior managers of two management levels.
The provision of Section 93 (4) of the Labour Code allows shortening of
continuous week rest from two days to 35 hours without any compensatory
rest if the natures of work and operation conditions do not allow the employee
to provide a weekly rest period of two days. We believe that the reasons for
such a substantial reduction of continuous rest without any equivalent replacements are very general and vague, and therefore not in accordance with the
principle of legal certainty. They are not designed exactly – in contrary to the
principle of legal certainty, but very extensively with the possibility of abuse
by employers. In Section 93 (4) of the Labour Code the aforementioned reason
for reduced weekly rest expressed by statement “the nature of work and operation conditions” represents a very general reason that the legislator should not
authorize for a reduced weekly rest without providing an equivalent alternative.
The provision of Section 93 (5) of the Labour Code completely ignores the
weekly rest, required by the Directive, and which is considered by the Directive as a minimum amount, and entitles the right of the employer to provide
the employee compensatory rest only once every two weeks and only in a half
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amount, i.e. not for two days, but only 24 hours of granted compensatory rest
until four months from the time it should be granted.
It must be said that de lege lata, reduced weekly rest period, as reflected in
Section 93 (3, 4 and 5) of the Labour Code does not comply with the Directive nor is in accordance with the principle of legal certainty. The compensatory rest periods are not equivalent. They do not follow immediately after the
performance of work; they are not accurate, not clear and are not limited to
the minimum acceptable amount. The provision of Section 93 of the LC on
uninterrupted weekly rest period is also contrary to the purpose of the Directive and not just because of undue curtailment of rest compared with the legal
rules, but also because of undue postponement of time to rest to a later time,
which cannot fulfil the purpose of the rest after work done.
The Directive does not provide for any transitional legal category between
working time and rest time. At the same time, the Court of Justice of the European Union in several decisions held that the stand-by duty at the employer
workplace is working time, because among the constituent elements of the
concept of working time for the purposes of this Directive does not belong the
work intensity performed by the employee or their performance.325
It is a time of stand-by duty, which is performed at the employer’s when
the employee does not work, but s/he is available to their employer, i.e. does
not meet the first of the three content elements of the definition of working
time, as defined by the Article 2 (1) of the Directive.326 Because during the
stand-by duty the employee is available to the employer, so s/he meets the
second criterion in the definition of working time, the Court ruled that by the
stand-by duty the employee performs the tasks given by the employer, and it
is therefore necessary to consider the stand-by duty at the workplace of the
employer as working time.
Based on the experience of the practice of the vast majority of EU member
states it would be more correct if additionally to the legal categories of working
time and rest periods there was specifically provided for in the Directive also
the transitional category of stand-by duty.327
In our opinion, another problem is the time that is outside of scheduled
work shifts, as this time is spent by travelling by the employee within the business trip and it is not considered as working time, however, nor can be seen
as rest time. Many employees travel in many occasions on business trips, and
325
C-151/2002 (Jaeger) from 9. 9. 2003, C-437/05 (Vorel) from 11. 1. 2007, C-14/2004 (Dellas)
from 1. 12. 2005, bod 43, see also C-303/98 (Simap).
326
C-303/98 (Simap) from 3. 10. 2000, Section 48.
327
See also C-14/04 (Dellas) from 1st December, 2005, Sections 43 and 47.
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according to our opinion they are in some way disadvantaged. They are in fact
deprived of their rest and leisure by such travelling.
In order to improve the status of these employees, the Labour Code (Section
96b) provides that an employer may agree with employees’ representatives or
by a collective agreement that for a business trip outside of scheduled work
shift, which is not overtime or standby-duty, the employee is entitled for cash
compensation or compensatory leave with pay in the amount of average earnings. The problem with this provision is that the legislature was formulated
in such way that there is the possibility of compensation for an employee on
a business trip and not an obligation.
5.5
Conclusion
In general, it can be stated that the analyzed regulations in the area of
working time are formally in accordance with Directive 2003/88, i.e. contain
determination of basic concepts such as does the Directive (except – Poland did
not establish the concept of rest; while in Poland in particular when scheduling
working time the difference between the definition of – consecutive 24 hours
(time) and the definition of day, calendar day, is causing many problems).
Experience shows in fact that the violations of law appear particularly in
the area of maximum extent of overtime or in continuous daily or weekly rest
periods (because there often happens that the recorded working hours do not
reflect the really worked hours). Outside the framework of definitions of the
Directive, there are special institutes such as stand-by duty and time spent by
travelling for business trips outside the timetable of work shifts.
Exceptions in the field of working time were used by the states for health
workers; which implies that health workers can work longer hours than other
employees. Such legislature reasonably evokes the question whether such practice is correct because the medical personnel providing health care should not
be disproportionately (in relation to other employees) burdened.
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6
Social dialogue
6.1
Introduction
The promotion of a social dialogue constitutes one of the key elements of
European social policies. This follows clearly from Article 154 of the Treaty
on European Union and the Treaty on the Functioning of the European Union,
which reads as follows: ‘The Commission shall have the task of promoting
the consultation of management and labour at Community level and shall take
any relevant measure to facilitate their dialogue by ensuring balanced support
for the parties.’ The notion of social dialogue self-evidently also includes collective bargaining, the conclusion of agreements between the social partners.
Consequently, Article 155 says: ‘should management and labour so desire, the
dialogue between them at Community level may lead to contractual relations,
including agreements’.
The European social dialogue, which can be bipartite or tripartite, supplements the national social dialogue arrangements which exist in most Member
States. Based on the principles of solidarity, responsibility and participation,
it constitutes the main channel through which the social partners contribute
to the establishing of European social standards and play a vital role in the
governance of the Union.
At European Union level is the collective labour law still slightly developed.
The reason for are too large differences in national systems of collective labour
law. Collective labour law is the domain of the national systems of the Member
States of the EU. In all differences may in the area of collective labour law
between Member States see some common legal characteristics. In general,
the EU registers trend towards collective bargaining with relatively narrow
territorial and personal scope, e.g. when, in one large company is closed and
more collective agreements. Undoubtedly, the development of collective labour
relations is connected with the deregulation of economic development and the
related deregulation of labour relations.
Differences in collective labour relations in the individual Member States
are characterized by a broad scope of collective relations, typology of industrial
conflicts, degree of organization of employees and employers, as well as differences in effect and binding force of collective agreements.
Compared with primary law is therefore a collective European law also has
smaller scale than individual labour law.
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The collective labour law include in particular the right to collective bargaining, the right to autonomous adjustment of labour relations associations of
employees and employers as well as employees’ right to participate in economic
decisions employer.
According to the basic idea of autonomous adjustment of labour relations
by employees and employers, the employees has to get in a position to independently through employee representatives were stronger partner in asserting
their rights against the employer. Prerequisite for autonomous adjustment of
labour relations through alliances is the right of employees and employers
association, i.e. the right to join trade unions and other associations for the
protection of their social interests.
In view of the systematic breakdown of collective labour law of the European Union includes:
the right to coalition,
the right to tariff or collective agreements,
the right to work fight and right to conciliation,
the right to personal representation or through works councils,
the right to participate in decision-making.
In view of the current development of European collective labour law were
its legal foundations laid not only in the EEC Treaty but also the Community
Charter of the Fundamental Social Rights of Workers. Article 11 provides for
employer and employee EU right to positive and negative freedom of coalition. Modification in Article 12 of the Charter relates to the tariff eligibility
of employer, employers’ associations and associations of employees, which
comes with more elaborate laws and customs of the Member States. Article 13
of the Charter provides for collective action in the interests which include the
right to strike subject to obligations based on individual contracts and tariff
adjustments. By convention of each Member State has the introduction and
application of mediation, conciliation and arbitration at the appropriate level
to facilitate the settlement of labour disputes.
Articles 17 and 18 of the Charter govern acquaintance, hearing and involvement of workers, especially in enterprises and clusters enterprises with establishments or undertakings for the EU.
The basic legal framework for the development of a European collective
labour law establishes primary EU law. Under Article 153 of the Treaty the
Commission shall endeavour to develop the dialogue between management
and labour at European level which can lead, if they consider it desirable to
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contractual relations. The European Union has in collective labour law harmonization only limited competences. The right of association and right work fight
remains under Article 153 of the Treaty reserved to the Member States. The
development of European law relating to collective agreements may be in the
current state of EU law carried out only by the social partners themselves, yet
without a common regulation. This is also indicated by case law of the Court,
according to which the primary law implies no fundamental right to liberty and
freedom of coalition to conclude collective agreements.
Although there are still no uniform rules of collective agreements, Article 153 of the Treaty provides a legal space for such treatment in the future.
The most important part of the content of European collective rights legislation is employee participation in European societies under Directive
2001/86/EC Supplementing the Statute for a European company with regard
to the involvement of employees, the right to information and consultation
of employees in accordance with Directive 2002/14/EC of the European Parliament and of the Council Establishing a general framework for informing
and consulting employees in the European Community and Council Directive
94/45/EC on the establishment of a European Works Council or a procedure
in Community-scale undertakings and Community as amended by Directive
2009/38/EC of the European Parliament and of the Council on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of
informing and consulting employees.
6.1.1 Information and Consultation: The Directive on European Works
Councils or Procedures
Directive 2009/38/EC of the European Parliament and of the Council of
6 May 2009 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees aims at
guaranteeing employees’ transnational information (transmission of data by the
employer to the employees’ representatives in order to enable them to acquaint
themselves with the subject matter and to examine it. Employees’ representatives may in particular undertake an in-depth assessment of the possible impact
and, where appropriate, prepare for consultations) and consultation establishment of dialogue and exchange of views enabling representatives to express an
opinion about the proposed measures. This opinion may be taken into account
within the undertaking or group of undertakings) rights. It provides for the
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establishment of a European Works Council or a procedure for informing
and consulting employees in Community-scale undertakings (which employs
at least 1000 employees within the Member States and at least 150 employees
in two different States) and groups of undertakings.
Matters dealt with by the European Works Council or the information and
consultation procedure are of a transnational nature. The powers of the European Works Council and the scope of the information and consultation procedure concern: all establishments of the undertaking or all establishments in
a Community-scale group situated in the Member States.
Member States may provide that this Directive shall not apply to merchant
navy crews.
6.1.1.1 The dominant influence of an undertaking
The Directive defines a “controlling undertaking” – i.e. which exercises
a dominant influence over a “controlled undertaking”. This influence is established if an undertaking:
holds a majority of another undertaking’s subscribed capital,
controls a majority of the votes attached to that undertaking’s issued share
capital, or
can appoint more than half of the members of that undertaking’s administrative, management or supervisory body (this last criterion is determining).
6.1.1.2 Creation of a European Works Council
The central management of the undertaking or the group is responsible for
establishing a Council or an information and consultation procedure. If a representative is not appointed, where the management is not located in a Member
State of the European Economic Area (EEA), it is the responsibility of the
establishment or undertaking which employs the largest number of workers in
one of the Member States.
The central management shall initiate negotiations to establish the European Works Council or the information and consultation procedure. It shall
act:
on its own initiative, or
at the written request of at least 100 employees (or their representatives)
in at least two undertakings (or establishments) in at least two different
Member States.
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A special negotiating body shall be formed by employees’ representatives.
They may be elected or appointed, according to the number of employees in
each Member State where the undertaking is present. The special group shall
negotiate an agreement with the management in order to define the operation
of the European Works Council and the arrangements for implementing a procedure for the information and consultation of employees.
The members of this group shall receive the same protection as employees’
representatives, as laid down by national legislation and/or practice in the
country where they are employed.
6.1.2 General framework for informing and consulting employees
On 11 November 1998’ the European Commission issued a proposal for
a directive ‘establishing a general framework for informing and consulting
employees in the European Community’. The move followed the refusal of
UNICE to enter into negotiations over a European agreement on the subject.
The draft directive provides for rules on the information and consultation of
workers at national level – based on agreement or legislation – applying to
undertakings with 50 or more employees. The ETUC welcomed the draft directive, but considers that it does not go far enough on a number of issues. UNICE
rejects European legislation in this area as unnecessary.
The possibility of the introduction of an EU-level framework for employee
in-formation and consultation was first raised in the European Commission’s
1995 medium-term Social Action Programme. Calls for EU legislative action
in this area became louder after the crisis sparked off by the closure of the Renault plant at Vilvoorde in Belgium, which was seen by many to have demonstrated the in-adequacies of current EU legislation in this area. In June 1997,
the Commission initiated a first round of consultations of the European-level
social partners on the advisability of legislation in this area.
In November 1997, the Commission opened a second round of consultations on the content of possible EU legislation on this issue. The social partners
had an opportunity at this stage – within a six-week deadline – to decide to
attempt to negotiate a framework agreement, thus forestalling a directive.
At the second stage of consultations, the Commission expressed a clear
preference for a social partner initiative to reach a European agreement on this
topic. However, while ETUC and CEEP indicated their willingness to negotiate
on this basis, UNICE remained opposed and in March 1998 rejected joining
such talks. UNICE said that member federations were virtually unanimous in
their conviction that the European Union should not intervene in such a matter,
which has no transnational implications.
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ETUC maintained its position that the objective of a framework agreement
in this area would not be to replace well-functioning systems for information
and consultation at national level, but to set minimum standards for this basic
right. National provisions that are more advantageous should take precedence
over those laid down in a European agreement.
The draft directive offers a substantial degree of flexibility in relation to
the exact shape and scope of information and consultation arrangements to be
instituted.
The draft was amended by the EP, the ESC and the Committee of the Regions.
The Directive 2002/14/EC of the European Parliament and of the Council
establishing a general framework for informing and consulting employees in
the European Community was adopted on 11 March 2002.
The purpose of Directive is to establish a general framework for improving
the information and consultation rights of employees in undertakings within
the European Community.
Two important principles are highlighted:
practical arrangements for information and consultation must be defined
and implemented in accordance with national law and industrial relations
practices in individual Member States,
when defining or implementing this framework, and employees' representatives must work in a spirit of cooperation and with due regard for each
other's rights and obligations.
For the purposes of this directive:
a) ‘undertaking’ means a public or private undertaking carrying out an economic activity, whether or not operating for gain, which is located within
the territory of the Member States,
b) ‘establishment’ means a unit of business defined in accordance with national
law and practice, and located within the territory of a Member State, where
an economic activity is carried out on an ongoing basis with human and
material resources,
c) ‘employer’ means the natural or legal person party to employment contracts
or employment relationships with employees, in accordance with national
law and practice,
d) ‘employee’ means any person who. in the Member State concerned, is protected as an employee under national employment law and in accordance
with national practice,
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e) ‘employees’ representatives’ means the employees’ representatives provided
for by national laws and/or practices,
f) ‘information’ means transmission by the employer to the employees’ representatives of data in order to enable them to acquaint themselves with the
subject matter and to examine it,
g) ‘consultation’ means the exchange of views and establishment of dialogue
between the employees’ representatives and the employer.
This Directive applies to undertakings with at least 50 employees in a Member State or to establishments with at least 20 employees in a Member State.
The choice is left to the Member States, which also establish the manner in
which the number of employees is calculated.
In conformity with the principles and objectives of this directive, Member States may lay down particular provisions applicable to undertakings or
establishments which pursue directly and essentially political, professional
organisational, religious, charitable, educational, scientific or artistic aims, as
well as aims involving information and the expression of opinions, on condition
that, at the date of entry into force of this directive, provisions of that nature
already exist in national legislation.
Member States may authorise the social partners to define freely, through
agreement, the procedures for implementing the employee information and
consultation requirements referred to in the Directive.
The Member States shall determine the practical arrangements for exercising the right to information and consultation at the appropriate level.
Information and consultation shall cover:
a) information on the recent and probable development of the undertaking’s
or the establishment’s activities and economic situation,
b) information and consultation on the situation, structure and probable development of employment within the undertaking or establishment and on
any anticipatory measures envisaged, in particular where there is a threat
to employment,
c) information and consultation on decisions likely to lead to substantial changes in work organisation or in contractual relations.
Information shall be given at such time, in such fashion and with such
content as are appropriate to enable, in particular, employees’ representatives
to conduct an adequate study and, where necessary, prepare for consultation.
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Consultation shall take place:
a) while ensuring that the timing, method and content thereof are appropriate,
b) at the relevant level of management and representation, depending on the
subject under discussion,
c) on the basis of information supplied by the employer and of the opinion
which the employees’ representatives are entitled to formulate,
d) in such a way as to enable employees’ representatives to meet the employer
and obtain a response, and the reasons for that response, to any opinion they
might formulate,
e) with a view to reaching an agreement on decisions within the scope of the
employer’s powers.
Member States must establish the procedures for applying the principles
set out in the Directive with a view to ensuring the effective application of
employee information and consultation. They also have the option of limiting
the information and consultation obligations of undertakings with fewer than
50 or 20 employees.
Confidentiality arrangements are included, to the effect that:
experts and employees' representatives must not disclose any information
which has expressly been provided to them in confidence, even after expiry
of their term of office,
within conditions laid down by national legislation, an employer may be
exempted from the information and consultation obligation where complying with it would seriously harm the functioning of the undertaking or
would be prejudicial to it.
When carrying out their functions, employees' representatives must have
adequate protection and guarantees to enable them to perform their duties.
The Directive makes the Member States responsible for ensuring compliance with its provisions (through adequate administrative or judicial procedures
at national level).
The following are regarded as serious breaches of the obligations laid down
in the Directive:
total absence of information and/or consultation of the employees’ representatives prior to a decision being taken or publicly announced,
withholding of important information or provision of inaccurate information rendering ineffective the exercising of the right to information and
consultation.
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In the event of a serious breach with direct and immediate consequences in
terms of substantial changes to or termination of employment contracts or relationships, the decisions taken have no legal effect. This situation continues until
the employer has fulfilled his information and consultation obligations. If this is
no longer possible, the employer must establish adequate redress in accordance
with the arrangements and procedures in place in the Member States.
The provisions of the Directive do not prejudice Council Directive 94/45/EC
on the establishment of a European works council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the
purposes of informing and consulting employees.
The Directive makes provision for a review of its application no later than
five years after its adoption, in consultation with the social partners and Member States, with a view to proposing to the Council any necessary amendments.
6.1.3 Statute for a European Company
The aim of Council Regulation (EC) No 2157/2001 of 8 October 2001
on the Statute for a European company and Council Directive 2001/86/EC
of 8 October 2001 supplementing the Statute for a European company with
regard to the involvement of employees is to create a “European company”
(known by the Latin term “Societas Europaea” or SE) with its own legislative
framework. This will allow companies incorporated in different Member States
to merge or form a holding company or joint subsidiary, while avoiding the
legal and practical constraints arising from the existence of fifteen different
legal systems. This legislative framework also provides for the involvement of
employees in European companies, giving due recognition to their place and
role in the business.
6.1.3.1 Regulation on the Statute for a European Company
There is provision for four ways of forming a European Company: merger,
formation of a holding company, formation of a joint subsidiary, or conversion
of a public limited company previously formed under national law. Formation
by merger is available only to public limited companies from different Member
States. Formation of an SE holding company is available to public and private
limited companies with their registered offices in different Member States
or having subsidiaries or branches in Member States other than that of their
registered office. Formation of a joint subsidiary is available under the same
circumstances to any legal entities governed by public or private law.
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The SE must have a minimum capital of EUR 120 000. Where a Member
State requires a larger capital for companies exercising certain types of activity, the same requirement will also apply to an SE with its registered office in
that Member State.
The registered office of the SE designated in the statutes must be the place
where it has its central administration, that is to say it’s true centre of operations. The SE can easily transfer its registered office within the Community
without – as is the case at present – dissolving the company in one Member
State in order to form a new one in another Member State.
The order of precedence of the laws applicable to the SE is clarified.
The registration and completion of the liquidation of an SE must be disclosed for information purposes in the Official Journal of the European Communities. Every SE must be registered in the State where it has its registered
office, in a register designated by the law of that State.
The Statutes of the SE must provide as governing bodies the general meeting of shareholders and either a management board and a supervisory board
(two-tier system) or an administrative board (single-tier system).
Under the two-tier system the SE is managed by a management board. The
member or members of the management board have the power to represent
the company in dealings with third parties and in legal proceedings. They are
appointed and removed by the supervisory board. No person may be a member
of both the management board and the supervisory board of the same company
at the same time.
However, the supervisory board may appoint one of its members to exercise the functions of a member of the management board if a vacancy arises.
During such a period the function of the person concerned as a member of the
supervisory board shall be suspended.
Under the single-tier system, the SE is managed by an administrative board.
The member or members of the administrative board have the power to represent the company in dealings with third parties and in legal proceedings. The
administrative board may delegate only the management to one or more of its
members.
The following operations require the authorisation of the supervisory board
or the deliberation of the administrative board:
any investment project requiring an amount more than the percentage of
subscribed capital,
the setting-up, acquisition, disposal or closing down of undertakings, businesses or parts of businesses where the purchase price or disposal proceeds
account for more than the percentage of subscribed capital,
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the raising or granting of loans, the issue of debt securities and the assumption of liabilities of a third party or surety ship for a third party where the
total money value in each case is more than the percentage of subscribed
capital,
the conclusion of supply and performance contracts where the total turnover
provided for therein is more than the percentage of turnover for the previous
financial year,
the percentage referred to above is to be determined by the Statutes of the
SE. It may not be less than 5% nor more than 25%.
The SE must draw up annual accounts comprising the balance sheet, the
profit and loss account and the notes to the accounts, and an annual report
giving a fair view of the company’s business and of its position; consolidated
accounts may also be required.
In tax matters, the SE is treated the same as any other multinational, i.e. it is
subject to the tax regime of the national legislation applicable to the company
and its subsidiaries. SEs are subject to taxes and charges in all Member States
where their administrative centres are situated. Thus their tax status is not totally satisfactory as there is still no adequate harmonization at European level.
Winding-up, liquidation, insolvency and suspension of payments are in
large measure to be governed by national law. An SE which transfers its registered office outside the Community must be wound up on application by any
person concerned or any competent authority.
6.1.3.2 Council Directive Supplementing the Statute for a European
Company with Regard to the Involvement of Employees
“Employee participation” does not mean participation in day-to-day decisions, which are a matter for the management, but participation in the supervision and strategic development of the company.
Several models of participation are possible: firstly, a model in which the
employees form part of the supervisory board or of the administrative board,
as the case may be; secondly, a model in which the employees are represented
by a separate body; and finally, other models to be agreed between the management or administrative boards of the founder companies and the employees
in those companies, the level of information and consultation being the same
as in the case of the second model. The general meeting may not approve the
formation of an SE unless one of the models of participation defined in the
Directive has been chosen.
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The employees’ representatives must be provided with such office space,
financial and material resources, and other facilities as to enable them to perform their duties properly.
If the two parties do not reach a satisfactory arrangement, a set of standard
principles set out in the Annex to the Directive becomes applicable.
With regard to a European company formed through a merger, the standard
principles relating to worker participation will apply where at least 25% of the
employees had the right to participate in decisions before the merger. Here
a political agreement proved impossible until the Nice summit in December
2000. The compromise adopted by the Heads of State or Government allowed
a Member State not to apply the Directive to SEs formed from a merger, in
which case the SE could not be registered in the Member State in question
unless an agreement had been concluded between the management and employees, or unless none of its employees had the right of participation before
its formation.
Employment contracts and pensions are not covered by the Directive. With
regard to occupational pension schemes, SEs are covered by the provisions laid
down in the proposal for a directive on institutions for occupational schemes,
presented by the Commission in October 2000, in particular in connection with
the possibility of introducing a single pension scheme for all their employees
in the European Union.
6.2
Social dialogue in Poland in light of Directive 2002/14/EC
and the Act on Information and Consultation
of Employees and Act on European Works Councils
On its accession to the European Union, Poland as well as other member
States has to support social dialogue between representatives of employers and
employees. In Poland social dialogue is based on Article 20 of the Constitution of the Republic of Poland, according to which “a social market economy,
based on the freedom of economic activity, private ownership, and solidarity,
dialogue and cooperation between social partners, shall be the basis of the
economic system of the Republic of Poland.” Social dialogue includes any
forms of negotiation, consultation and exchange information. It is a useful
tool when linking or reconciling the interests of various social groups. Unlike
negotiation, social dialogue is not an immediate instrument; on the contrary it
is a continuous process which can diminish the likelihood of violent clashes
and social unrest. A characteristic of social dialogue is the positions of opposing
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groups being presented in an uninhibited way, heard and taken into consideration. Social dialogue also plays an important role in seeking constructive
long-term solutions, which might meet the needs of democratisation in the
political sphere, while in the economic area – matching the mechanisms and
rules of market economy.
Even in 1989 in Poland it was noted that it is necessary to modify labour
law regulations in the scope of social dialogue, which incidentally was influenced by enacting The Community Charter of Fundamental Social Rights of
Workers.328 What was emphasised then was the deficiency of Polish model of
representation of collective interests, which had been monopolised by trade
unions. It was stressed that it is necessary to empower undertaking staff and to
guarantee workers the possibility of effective collective redress. The problem
of reforming the position of Workers’ representation was regarded as essential part of the whole reform of Polish labour law. Polish legal system lacked
a comprehensive and coherent regulation referring to employee information and
consultation. One of the then valid legal acts was the Act on state undertaking
staff self-government329 and it was on its basis that workers councils acted. The
workers councils as defined in the act were the most important organ of staff
self-government and in their scope of competences included so-called active
type of participation manifesting itself in the right to express disapproval,
agreement or make independent decisions. The employee council of a state
owned undertaking staff self-government consists of 5 members elected by
undertaking employees in general, direct, equal elections by secret vote. Thus
the employee council is a non-union organ. However, in practice, trade unions
tend to hold the majority in them. The scope of competences of the employee
council of state undertaking employee self-government includes among others
resolving and amending the undertaking annual plan and approving the balance, taking resolutions on investments, change of line of the undertaking
activity appointing and dismissing the Managing Director and other executive officers in the undertaking. Besides, the employee council of state-owned
undertaking employee self-government has the right to express their opinion
in all matters concerning the undertaking and its management. In the 1980s
self-government of employees concerned a vast majority of employees as it
functioned within state owned undertakings. As part of the socialist economy
state undertakings were predominating forms of conducting business activity.
328
On 9 December 1989 the Community Charter of the Fundamental Social Rights of Workers
was enacted.
329
Act of 25 September 1981 on staff self-government of the state-owned undertaking (Journal
of Laws no.
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It should be stressed that since 1989 up to the present time the number of
state-owned undertakings has been decreasing and this happens so as a result
of the process of privatisation, and importantly, at the point of an undertaking
being transformed to a company (so-called commercialisation) organs of staff
self-government cease to exist. It does not mean that employee participation
is completely discontinued – it still exists – but in a changed form.330 As mentioned above the employee council of state-owned employee self-government
has a possibility of participating in a stronger, more active form. A contrary
form of employee participation in works management is passive participation which is characteristic of the right to obtain information, right to express
opinion, i.e. consultation.
It should be stressed that Act on staff self-government, which pursues the
postulate of participation applies only to state owned undertakings and has
no effect in the case of the private sector. This is why private undertaking
employees have not had any legal grounds to found on to seek their right to
representation, information and consultation.331
The possibility of regulating workers’ representation in a very wide context
including also the private sector was created by Directive 2002/14/EU adopted
by the European Parliament and Council of European Union on 11 March 2002
establishing a general framework for informing and consulting employees in
the European Community.332 The Directive has been in force in Poland since
23 March 2005 and is aimed at employees without differentiating their entitlements in terms of any trade union membership. According to the Directive by
“information” we should understand transmission by the employer to the employees’ representatives of data in order to enable them to acquaint themselves
330
The modified formula consists in, among others, the right to elect members of supervisory board
and board of directors of commercialised companies. It also consists in granting employees the
right to acquire up to 15% shares (stock) out of charge.
331
And it should be stressed that even point 17 the Community Charter of the Fundamental Social
Rights of Workers, provides among others that Information, consultation and participation for
workers must be developed along appropriate lines, taking account of the practices in force in
the various Member States. This applies especially in companies or groups of companies having
establishments or companies in several Member States of the European Community. Article 7 in
the Preamble states that there is a need to strengthen dialogue and promote mutual trust within
undertakings in order to improve risk anticipation, make work organisation more flexible and
facilitate employee access to training within the undertaking while maintaining security, make
employees aware of adaptation needs, increase employees’ availability to undertake measures
and activities to increase their employability, promote employee involvement in the operation
and future of the undertaking and increase its competitiveness.
332
EU Journal of urnal L 2002/80/29 EU Journal of Laws Special Edition 2005/4/219 further
referred to as directive. More on the directive see L. Florek, Informacja i konsultacja pracowników w prawie europejskim, “Praca i zabezpieczenia Społeczne” 2002, no. 10.
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with the subject matter and to examine it. However, “consultation” means
the exchange of views and establishment of dialogue between the employees’
representatives and the employer. Thus according to the Directive (Article 10
of the Preamble) information and consultation in due time is prerequisite of
the success of, for example restructuring and adopting undertakings to new
conditions created by economic globalisation, particularly in connection with
the development of new forms of labour organisation.
In the system of Polish legislation the participation of employees in the
management of works – even before the Act on employee information and consultation was passed – had and still has the attribute of being the fundamental
principle expressed in the Constitution, which has been already mentioned in
the beginning, but also in the Labour Code Article 182.333 However, the formula
contained in the Code does not prejudice nor does it impose any structures or
forms of participation. It is the Act of employee information and consultation
that granted such status to works councils. This is the area where the leading
role is played by works staff and their representative organs. They are to link
the employer and works staff, that is why employees taking part in the management of the establishment is termed as “participation”. In a very simplified
way the powers in an establishment are broken down in the following way:
on the one hand there is the employer and persons acting on his behalf and
persons representing the employer and holding executive authorities and on
the other side there are employees performing their duties under supervision.
However, this seemingly rigid division owing to the delegation included in the
Labour Code and specified in the discussed legislation was overcome through
the strengthening of the idea of “participation”. “Participation” is an essential
element of the functioning of employees in the place of work. Its idea is to
enable employees to participate in the administration of managerial functions
owing to which employees have opportunity to satisfy higher level needs. They
can take initiatives, take part in the decision-making process and take joint
responsibility in the process of work. Employee’s participation influences the
harmonisation of industrial relations, which certainly opens up possibility of
mitigating conflicts and strengthens the feeling of employees’ attachment to
the establishment. Not only does the employer’s authority suffer no harm in
relation to the employees’ participation in the decision-making process, but
it also strengthens it. Thanks to the joint negotiation the superiors can better
control employees’ attitudes and count on their wider acceptance. The above
presented goals are absolutely essential from the perspective of the employer
333
182 Polish Labour Code. Employees participate in the management of the establishment in the
scope and within the rules specified in separate laws.
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
and do have their empowerment in legal provisions, and as a result constitute
an instrument in supporting social dialogue.
The Directive and a number of EU acts334 have become the foundation on
which the construction of Polish legal structure regulating the duty of information and consultation of employees started.
However, work on the new legislation did not proceed smoothly. There were
serious discrepancies between social partners and the government that were
exposed especially in the area of the selection of the model of workers representation. As it is easy to predict trade unions put priority to the development
of a model which would hardly threaten the position of the existing union organisations in works. On the other hand, for the employers, the most important
problem was to minimise costs connected with the implementation of the Act.
There were plenty of ideas, but unfortunately they presented extremely contrary
positions. It was argued, for example, that there is no need of implementation of
Directive 2002/14 at all as the existence of trade unions does entirely fulfil the
duty of information and consultation. On the other hand, it was emphasised that it
is necessary to create a completely new model of employee representation, totally
independent of union organisations. There were also references to the proposal
of drawing some solutions in this area from Hungarian or Czech regulations.
The Hungarian model is characteristic of works councils acting along with trade
unions and is elected by staff. However, in the Czech construction, where in a specific works a trade union organisation is formed, the existing employee council is
dissolved. It means that at the same time both trade unions and a workers council
cannot exist. Against this backdrop both trade unions and employers spotted
a new common chance but based on different assumptions. Trade unions clearly
opted for the Czech way as it offered the unions possibility of getting rid of possible in the form of a new institution representing employees. However, for the
employers adopting the Czech solution meant the lack of forming new structures
and bearing the resulting costs. It should be emphasised that the discussion and
arguments in this respect were greatly prolonged, which resulted in very big delay
(of over six months) in the adaptation of Polish law to Directive 2002/14. As time
did not stand still and there were no views on developing a common position,
334
The group of laws which must not be omitted and which regulate the problem of informing and
consulting employees also includes the initially mentioned Community Charter of Fundamental
Social Rights of 9 December 1989 point 17; Agreement on social policy of 7 February 1992
Article 2 item 1 (Text of the Charter cf. E.g. A. wiątkowski, H. Wierzbińska, Dokumenty
ródłowe Instytucji Wspólnot Europejskich w zakresie praw socjalnych, Musica Iagellonica,
Karków 1999, p. 111 and subs and p. 103and subs.); Charter of Fundamental Rights of the
European Union of 7 December 2000 Art. 27 (Charter of Fundamental Rights of the European
Union. OJ C 364, 18. 12. 2000, P.0001)
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consequently the European Commission instigated against Poland a sanction
procedure under Article 226 of the Treaty of Rome. As a result of many setbacks,
discrepancies in opinion, struggling for the protection of own interests and in view
of passing time a compromise was eventually reached whose result is the Act of
employee information and consultation.335 It should be noted that the definitions
of information and consultation quoted in Directive 2002/14 were almost identically implemented in the area of Polish legislation.
Who is the Act of employee information and consultation aimed at? From
the practical point of view the provisions of the act apply to all entities conducting business activity starting from commercial law companies, through
cooperatives336, undertakings, to natural persons. The act refers to entrepreneurs
employing at least 50 employees337, which practically means that the legislation
reaches middle and large size undertakings. It should also be noted that it does
not differentiate the employers in terms of bankruptcy and liquidation, which
means that with the employers where the bankruptcy or liquidation procedure
was started, the information and consultation procedures have full application. The provisions of the Act are not applied to state owned undertakings in
which staff self-government is formed. It is, however, applied in the case of
state undertakings where staff self-government does not function provided they
employ at least 50 employees.
Under the Act on employee information and consultation, the number of
members of an employee council varies in the following way:338
members – if the employer employs from 50 to 250 employees,
members – if the employer employs from 251 to 500 employees,
7 members – if the employer employs over 500 members.
The provisions of the act concerning the determination of the number of
members of an employee council are of relative nature, as there are no objections to determining another increased number of employee council as a result
of an agreement with the employer.339 However, it is not possible to determine
335
Act of 7 April 2006 on Information and Consultation of Employees307 Journal of Laws no. 79
item 550)
336
Cf. M. Gładoch, Ustawa o informowaniu pracowników i przeprowadzaniu z nimi konsultacji,
Komentarz Toruń 2007, p. 43ff.
337
Article 11 para. 3 Ustawa o informowaniu pracowników i przeprowadzaniu konsultacji (Act
on information with workers and conducting consultations, here in after „u.i.p.p.k.“.
338
Article 3 para. 1 para. 3 u.i.p.p.k.
339
Article 5 section 2 para. 1 u.i.p.p.k
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the number of members of the council below three persons. If such an arrangement was made it would be invalid in this respect as being inconsistent with
the Act. Another situation happens when employment falls during the term
the council with a specific employer and then it is not obligatory to raise the
number of council members. However, if such a situation was provided under
an agreement with the employer or in the rules of selection of the council then
supplementary elections are proceeded.340
Elections to the council is organised by the employer and is conducted by
an electoral board. They are of democratic character and the initiative in this
respect belongs exclusively to employees. All employees have equal rights
concerning the appointment of the council.
Where the employer employs up to 100 employees, the council is elected
out of candidates proposed by at least 10 employees, and where the employer
employs over 100 employees – by a group of 20 employees. The active right
to vote is due to all employees regardless of the type of employment contract
and working hours. Besides, eligible to vote are also employees who do not
perform work on the day of elections, including those who are on a holiday,
unpaid, sick leave etc. Illegible to vote are persons who perform work on the
basis of civil law contracts, typically contract to perform specified work or
contracts of commission.
Under the active right to vote concerning the elections to employee councils
one subjective exception was introduced: juvenile workers of between 16 and
18 years of age are not eligible to vote.
The passive right to vote is due to the employee who has worked for the
employer continuously for at least one year and this concerns all types of employment contract and acts creating an employment relationship enumerated
in Article 2 of the Labour Code. However, passive voting rights according to
Article 9 section 3 are not due to:
single manager of the establishment and his deputies,
member of a collective body managing the establishment,
chief accountant,
legal adviser,
adolescent employee.
The above list is enumerative and constitutes a limited catalogue, and as
a result cannot be given a widening interpretation.
340
K. W Baran, Komentarz do ustawy o informowaniu pracowników i przeprowadzaniu z nimi
konsultacji, [in: ] Zbiorowe Prawo Pracy. Komentarz, ed. II 2010.05.11 Komentarz Lex.
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The rules of the collaboration of the employer with the staff council must be
specified by agreement. Agreement may be made in any form, even orally, but
the need of legal certainty in industrial relations definitely says for the written
form.341 Agreement is of an obligatory character as it determines and regulates
mutual obligations of both parties. Agreement should serve the purpose of
specifying rules of information and consultation as well as other useful rules
adapted to the conditions present in the undertaking and its specific characteristics.342 The Act provides in Article 5 in a framework manner some issues which
must be covered by agreement. Hence, there is no objection to parties going
beyond the scope specified in the Act. However, if not all the issues provided
in Article 5 of the Act was regulated in the agreement it is effective but in the
omitted matters the statutory standards apply.
Both parties may also jointly regulate issues connected with resolving possible future disputes. In this matter they have full discretion to introduce to
the agreement any amiable methods, as they are not bound by the regulations
adopted in the Act on resolving collective disputes.
The council’s term of office lasts 4 years. Neither the employer nor staff
may shorten or extend the term of the council. For all members of the council
the term ends on the same date. From this perspective the date of obtaining the
mandate is immaterial and it mainly concerns those who obtained a mandate in
supplementary elections. It should be stressed that according to the amended
provision of Article 11 section 3 of the Act decreasing the number of staff below
50 does not result in shortening the council’s term. It still works for four years
regardless of the employer’s level of employment. Within 30 days from the
date of election of the council, the employer convenes its first meeting. If he
does not do it then the council convenes itself by its members. The first meeting
should be devoted to the selection of the chairperson and resolution of the rules.
One ceases to be a member of the council on dissolution or termination of
the employment relationship as to be a council member one has to enjoy the
status of employee.
Dealing with social dialogue and the set in its framework Act on employee
information and consultation one should not forget that the employer as an
entity managing the undertaking must reconcile in his business activity many
different, sometimes conflicting interests. It is related with, among others,
areas which cannot be consulted with employees for various reasons. This
341
Krzysztof W. Baran Komentarz do ustawy o informowaniu pracowników i przeprowadzaniu
z nimi konsultacji, [in: ] Zbiorowe Prawo Pracy. Komentarz, 2nd ed. 2010.05.11 Komentarz
Lex.
342
Balsam Katarzyna Studia z zakresu prawa pracy i polityki społecznej, 1, 2007, p. 107.
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mainly concerns such facts and information which should, due to the kind of
the employer’s activity, remain secret. This situation is provided under Directive 2002/14,343 and consequently in the Act on information and consultation of
employees, which in particularly justified cases grants the employer the right to
not reveal employee council any such information. Besides, the Act imposes on
members of staff councils an obligation to not disclose obtained information in
connection with the function held if the employer reserved the right to maintain
confidentiality in relation to this information and such obligation lasts no longer
than three years after ceasing to perform the function. As results from the above
the employer is not obliged to transmit, inform or conduct any consultation if
the nature of such information or consultation is one that, in accordance with
objective criteria, might cause substantial damage to the functioning of the
undertaking or works or might worsen their situation.344 Of course, the staff
council may consider such reservation of information or non-disclosure to be
illegal and may consequently apply to court for waiver of duty of confidentiality
or for order to disclose information or conduct consultation.
The Supreme Court explained that information is secret where the employer
is willing, even if his will is implied, to maintain its secret character and such
will must be recognizable to other persons345. Besides, the Supreme Court held
that any violation of the duty of confidentiality in relation to information of
which disclosure possibly exposing the employer to damage, may consists in
obtaining such knowledge by an unauthorised employee.346
An important aspect of the discussed problems is the possibility of employees’ representatives freely using their entitlements they were granted. Thus
in order to proceed freely to talks with the employer in light of possible conflicts,
and consequently to represent employee’s interests conscientiously, they must be
certain that they would not face any adverse consequences from the employer.
Such consequences may be different, from changing the conditions of working
and remuneration to less advantageous ones to the threat of job loss. In order to
prevent employee representatives from being exposed to such threats EU law
grants them general protection, which was further specified in the Polish Act
on information and consultation of employees. European labour law does not
343
(25) Undertakings and establishments should be protected against disclosure of some particularly sensitive information.
(26) The employer is allowed to not inform and not consult employees where that might give
rise to substantial harm to the undertaking or establishment or where the employer must immediately follow the order issued by a controlling or supervising body.
344
Art. 6 item 2 Directive 2002/14/EC.
345
Judgement of the Supreme Court of 3 October 2000. I CKN 304/00.
346
Judgement of the Supreme Court of 6 June 2000 I PKN 697/99.
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determine the specific scope of protection of staff representatives,347 it does,
however, indicate in general terms that it should be appropriate348 and that may
not be placed at a disadvantage because of their respective activities.349 The purpose of such protection is to guarantee employee representatives independence
in performing their representation function. Such protection aims at avoiding
discrimination in relation to promotions as well as ensuring the durability of
employment relationship. Statutory determination of such generally outlined
framework consists among others in the staff council’s consent to the termination, dissolution or unfavourable modification of the employment relationship
with an employee who is a council member during his membership in the staff
council. This protection is obviously indirect, nevertheless the point of the requirement to obtain consent is to analyze by a specific organ, the staff council
in this case, all circumstances of the mater and establishing on such grounds
whether the intention of terminating the employment relationship remains or not
in connection with the function played by the employee faced with job loss. Subject to such protection is also the remuneration of this employee. It means that
the employee being a staff council member is entitled to leave from gain-earning
work, maintaining the right to remuneration, for a time necessary to participate
in the council collaborations, which may not be performed off working hours.
Considering undertakings, establishments in terms of social dialogue and
the resulting participation and representation of employees in management
one cannot forget that nowadays we are increasingly dealing with the activity
which goes beyond the legal order of one member state. Therefore the Council of the European Union issued three directives regulating the rules of staff
representation in EU-scale undertakings and establishments. They include Directive 94/45,350 Directive 2001/86351 and Directive 2003/72.352 The quoted
347
Beata Rutkowska Przedstawicielstwo pracowników w europejskim prawie pracy – wybrane
zagadnienia. Praca i Zabezpieczenie Społeczne 4/2005, p. 17.
348
Directive 2002/14/EC article 7.
349
Article 11 sec. 4 Directive of the Council of 12 June 1989 on the introduction of measures to
encourage improvements in the safety and health of workers at work (89/391/EEC) (Official
Journal L 183 of 29 June 1989, p. 1).
350
Council Directive 94/45/EC of 22 September 1994 on the establishment of a European Works
Council or a procedure in Community-scale undertakings and Community-scale groups of
undertakings for the purposes of informing and consulting employees.
351
Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European
company with regard to the involvement of employees (OJ L. 294. 10. 11. 2001, p. 0022).
352
Council Directive 2003/72 of 22 July 2003 supplementing the Statute for a European Cooperative
Society with regard to the involvement of employees (OJ. L. 204. 18. 03. 2003, p. 0025–0036).
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Directives do not regulate the method of selecting employees’ representatives.
The regulation of this matter was left to the law of particular states, and the
rules of selecting employees agreed by Member States may by no means lead
to discrimination.353 Polish legislation regulating the delegation provided by
Directive 94/45 is the Act on European Works Councils enacted on 5 April
2002 which became in force on Poland’s accession to the European Union.
The Act determines the rules of creating and functioning of European works
councils and methods of employee information and consultation in undertakings and groups of undertakings whose activity is Community-scale, in order
to pursue their right to information and consultation. The Act applies to the
following entities:354
1. Community-scale undertakings or groups of undertakings whose central
management is based in Poland.
2. Community-scale undertakings or groups of undertakings where the central
management is not based in a Member State if the management designated
its representative situated in Poland.
3. Community-scale undertakings or groups of undertakings where the central
management is not based in a Member State, if there is an establishment
situated in Poland being part of such an undertaking or undertakings being part of such a group which employs the greatest number of employees
employed in a specific undertaking or group of undertakings in any one
Member State.
Community-scale undertaking is any undertaking belonging to an employer who employs in works at least 1000 employees within the Member
States, including at least 150 employees in each of at least two Member States.
Community-scale group of undertakings is a group of undertakings with at
least 1000 employees within the Member States, including each with at least
150 employees employed in at least two Member States.
European works council is formed by means of an agreement between the
central board and a special negotiation team. Elections are held by the central management and they are valid provided they were attended by at least
353
Therefore the Regulation (EEC) No. 1612/68 of the Council of 15 October 1968 on freedom of
movement for workers within the Community says in Article 8 that a worker who is a national
of a Member State and who is employed in the territory of another Member State shall enjoy
equality of treatment as regards membership of trade unions and the exercise of rights attaching
thereto, and the right of eligibility for workers’ representative bodies in the undertaking.
354
Article. 2 Act of 5 April 2002 on European Works Councils (Journal Of Laws of 2002 no. 62
item 556).
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50% staff.355 The special negotiation body consists of candidates who receive
the greatest number of votes respectively. An agreement on the establishment of
a European Works Council is preceded by negotiations which may be initiated
by the central management or at the written request of at least 100 employees
or their representatives in at least two undertakings or establishments in at least
two Member States.356 The final result of the conducted negotiations is concluding or not concluding the agreement. If such an agreement on the establishment
of a European Works Council is concluded it must determine in particular such
matters as the Community-scale undertakings and establishments under such
agreement, the composition of the European Works Council with the precise
number of members, division of mandates and duration of mandate. Apart from
the matters mentioned, the agreement should first of all determine the powers
of the European Works Council as well as the manner of being informed and
consulted as well as funds granted to the European Works Council and duration
of agreement and the procedure of renegotiation.
However, a situation may happen where they are unable to conclude an
agreement to establish a European Works Council. If an agreement to establish
a European Works Council or an information and consultation procedure is not
concluded after three days the date of the central management taking the initiative or from the date of employees submitting a written request the legislation
applies. The provision of the Act also apply where the central management and
special negotiating body so decide or where the central management refuses
to commence negotiation within 6 months of the initial request submitted by
employees.
European Works Council is authorised to acquire information and conduct
consultation regarding the whole of the Community-scale undertaking or group
of undertakings or at least two establishments or two undertakings situated
in different Member States. In the case of Community-scale undertakings or
groups of undertakings, where the central management is not based in a Member State, a European Works Council is authorised to acquire information and
conduct consultation regarding all establishments or undertakings situated in
Member States or at least two establishments or two undertakings situated in
different Member States. The European Works Council has very wide powers.
Typically it may use the assistance of experts of its choice, in so far as this
is necessary for it to carry out its tasks. It must be stressed that the operating
expenses of the European Works Council, including in particular the cost of
355
Act of 5 April 2002 on European Works Councils (Journal Of Laws of 2002 no. 62 item 556)
Article. 8 sec. 8.
356
Ibidem Art. 6 sec. 2.
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
organizing meetings, the accommodation, subsistence and travelling expenses
of council members, interpretation facilities and necessary training is borne
by the central management unless the central management and the European
Works Council otherwise agree.
According to the legislation the obligation to inform and consult with the
European Works Council concerns such issues as the structure, economic and
financial situation, the probable development of the business and of production and sales, the situation and probable trend of employment, investments,
and substantial changes concerning organization, introduction of new working
methods or production processes, transfers of production, mergers, cut-backs
or closures of undertakings, establishments or important parts thereof, and
collective redundancies. The Act on European Works Council as well as the
Act on informing and consulting employees introduces the obligation to not
disclose information obtained in connection with the performed duty, such
information being the undertaking’s secret and having been reserved by the
central management as confidential. Also, an employee who is a member of the
special negotiating body or European Works Council is covered by protection
in relation with the termination of labour relationship, as it is the case under
the provisions of the Act of informing and consulting employees.
It should be noted that Poland has duly amended national legislation whenever such need follows from amendment of Community regulations. Due to the
amendments introduced by Directive 2009/38/EC of the European Parliament
and of the Council of 6 May 2009 on the establishment of a European Works
Council or a procedure in Community-scale undertakings and Community-scale
groups of undertakings Poland amended the Act of 5 April 2002 on European
Works Councils. The amending legislation became effective as of 22 October
2011. As a result a new regulation was adopted in which a definition of information was added and definitions of consultations were extended. Thus according
to the added Article 5a, information under new provisions must be interpreted
as transmission of data by the employer to the employees’ representatives
with information given at such time, in such manner and with such content as
are appropriate to enable employees’ representatives to acquaint themselves
with the subject matter, examine it, undertake an in-depth assessment of the
possible influence particularly on the employees’ rights and obligations and,
where appropriate, prepare for consultation with the competent body of the
Community-scale undertaking or Community-scale group of undertakings.357
However, according to the new wording of Article 2 item 6 the notion of con357
Act amending Act of 5 April 2002 on European Works Councils (Journal of Laws of 20 no. 213
item 1265 ) Art. 1 para 2a.
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sultation was determined in a more precise way, now meaning establishment
of a dialogue and an exchange of views between employees’ representatives
and central management or any other appropriate level of management, at
such time, in such fashion and with such content as are appropriate to enable
employees’ representatives to express an opinion on the basis of the information provided about the proposed measures to which the consultation is related,
so as to allow the measures be taken into account within a reasonable time by
Community-scale undertakings or Community-scale groups of undertakings.358
A more precise wording was also given to the method of conducting consultation. Now according to the amended Article 29 item 3a, the consultation must
be conducted in such a way that the European Works Council can meet with the
central management and obtain a response, and the reasons for that response,
to any opinion submitted by the European Works Council.359 Besides, in light
of the new regulations where the central management plans to take actions
leading to substantial changes in work organisation or contractual relations,
the central management is obliged to inform and consult the European Works
Council concerning the envisaged actions and decisions and transmit the relevant information to the local management in order to exercise the employees’
right to information and consultation in the countries affected by the action
and decisions.
Another modification was the addition of item 4 in Article 15 which results
in the members of the special negotiating body being provided with training,
with a very important reservation, i.e. the right to remuneration.360 Modified
were also the rules under which members of the special negotiating body are
elected (Article 7 item 2),361 and also, as a consequence the rules of appointing
members of a European Works Council (Article 21 item 2).362
The above considerations which is merely a fragmentary indication of the
whole extensive problem of supporting the social dialogue in the Polish legal
system show that the Polish legislator is able to see and appreciate the development of the structures of information and consultation of employees, which directly stems from the realisation of the postulate of conducting social dialogue.
The provisions of EU legislation are pursued and necessary provisions resulting
from the process of unification are implemented in the domestic system with
great temporal precision. Obviously, as exemplified by the introduction to the
358
Ibidem art. 1 sec. 2b.
359
Ibidem art. 1 sec. 17.
360
Ibidem Art. 1sec. 9.
361
Ibidem Art. 1 sec. 4.
362
Ibidem Art. 1 sec. 12.
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
Polish legal system of the Act on information and consultation of employees,
this process is sometimes extended in time and packed with different difficulties and controversies. However, the process of implementation of the legal
regulations under consideration to the Polish circumstances can be regarded
as satisfactory.
6.3
Social dialogue in Slovakia
Employees’ right to collective bargaining and the right of employees to
strike belongs between the important constitutional rights.
The specific objective of collective bargaining is to conclude collective
agreement. Although the typical legal institute collective labour law are collective agreements, into the content of collective labour law culminate other
institutions, especially a complex of institutional mechanism rendering the
negotiations, other forms of employee involvement and more.
The concept of collective bargaining include all bargaining between the
employer, group of employers or one or more employers’ organizations on
the one hand and one or more employee organizations, on the other hand, the
purpose of which is:
a) to determine the terms and conditions of employment or
b) regulating relations between employers and employees or
c) regulating relations between employers and their organizations and employees or organizations.
Collective bargaining is in Slovak republic regulated by Act no. 2/1991
Coll. of collective bargaining, as amended, which is based on the so-called
narrow definition of collective bargaining, giving by the fundamental objective to be achieved by this Act – a collective agreement. The Act regulates
collective bargaining between the relevant trade union bodies and employers,
if need with the possible participation of the state, an effort to conclude a collective agreement.
Under the provisions § 2 of Act on collective bargaining are contained in
collective agreements:
a) individual relationships between employers and employees (individual
commitments),
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b) the collective relations between employers and employees (collectively
liabilities),
c) the rights and obligations of the parties.
According to the Labour Code, content of collective agreement, are work
conditions and wages, conditions of employment relationships between employers and employees, relations between employers or their organizations and
one or more employers’ organizations. Working and pay conditions constitute
the contents of the normative part the collective agreement. Employees’ claims
arising from it can apply at the court as other legal employees claims arising
from labour regulations. Upon termination of the employer with legal successor
all the rights and obligations arising from collective agreement succeed, to the
new employer. The same labour law consequences occur in the case of hiring
the company. The definition of the material scope of collective agreements
in the Labour Code in content is reduced to an adjustment more favourable
conditions in comparison with the law as well as in relation to the employment
contract.
6.3.1 Employees’ representatives
6.3.1.1 Employees’ representatives
The Labour Code establishes a legal framework of legal dualism in representing the rights and interests of employees. Works councils at the workplace
of the employer may act simultaneously with trade unions in a given regulatory
framework with competencies specified directly in the Labour Code. In this
situation it is necessary divide by law the material scope of the trade union
organization on the one hand and the material scope of the works council on
the other hand. If at the employer operates alongside one another trade union,
works council or works trustee, trade union have the right to collective bargaining, joint decision-making, control activities and information on a works
council or works trustee shall have the right to discuss and information. In collective bargaining, Labour code retains trade union bodies in the legal position
of the sole subject of collective bargaining.
A trade union organisation is a civil association governed by separate regulations. According to the Act no. 83/1990 Coll. on the Association of citizens
as amended, as the union is considered an association of citizens, which legal
capacity acquires by registration with the Ministry of Interior on the day following the date on which the Ministry has received a proposal to register. The
application for registration of a trade union joins the statutes that govern the
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
internal relations the trade union organization. The registration principle applies
not only to trade unions, but also for employer organizations without interference by public authorities in the process of their constituting. Like the Act on
Association of Citizens Trade Union has a legal capacity, is a legal entity and
acts as one of the subjects of labour law. The trade union shall be obliged to
inform the employer of the start of its activities in the employer’s organisation
and present a list of members of the trade union body to the employer. An employer shall be obliged to allow the operation of trade union organisations at
the workplace. The employer must allow also persons who are not employees
of the employer access to the premises of the employer related to the purpose
of access if they are acting in the name of a trade union organisation of which
an employee of the employer is a member, for the purposes of exercising the
rights of employees; such a person must abide by the requirements and measures set for the area of health and safety, other regulations and the internal
regulations of the employer to the extent necessary taking into consideration
the purpose of access.
The Labour Code distinguishes between the impact of trade union bodies
in the individual employment relationships and the influence of trade union
bodies in collective bargaining. The individual employment relations partner of
the employer is the trade unions, which is the employee member. Representativeness principle also applies to individual employment relationships when it
comes to unionized employees. In such cases, the social partner of the employer
is trade union with the largest number of members provided if the employee
does not specify otherwise. Collective bargaining with several trade organizations is regulated by the Act on collective Bargaining. According to § 3a of
the Act on collective bargaining if there at the employer are acting in parallel
several trade union organizations, the conclusion of a collective agreement on
behalf of the collective of employees can trade union bodies to speak and act
with legal consequences for all employees together, and in concert, if they do
not reach agreement otherwise. In the absence of agreement between them the
employer is entitled to conclude a collective agreement with the union with
the most members or with other trade unions, members of the sum is greater
than the number of members of the largest union.
The works council is opposed to trade union body representing all employees.
The Labour Code does not provide legal capacity of works council. The works
council may act at an employer who employs at least 50 employees. In the case
of an employer who employs fewer than 50 employees, but not less than three
employees may act a works trustee. The rights and obligations of works trustee
are the same as the rights and obligations of the works council. The works
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council or works trustee has the right to be consulted by agreement or by the
approval was granted only if the working conditions or a condition of employment, which requires participation works council or works trustee is not covered
by a collective agreement.
An activity of the employees’ representatives, which is in direct relation to
performance of tasks of employer, shall be deemed performance of work for
which the employee shall be entitled to wages. An employer shall provide time
off from work for performance of the position of employees’ representatives
or for their participation in education as secured by the body of the competent
trade union body, works council and employer provided such shall not be
prevented by substantive operational reasons. Pursuant to its operational possibilities, an employer shall provide employees representatives, for necessary
operational activities, free of charge and to the adequate extent, facilities with
the necessary equipment, and settle expenses connected with their maintenance
and technical operation. Employees’ representatives and experts fulfilling tasks
for the employees’ representatives shall be obligated to maintain secrecy on
events which they discovered in the performance of their position and which
were designated by the employer as confidential. This duty shall also apply
during one year following the termination of the performance of their position,
unless special regulation stipulates otherwise. Employees’ representatives may
not be, in the fulfilment of tasks resulting from their position, disadvantaged
or otherwise sanctioned by the employer.
Employees’ representatives, during their term in office and for six months
after its termination, shall be protected against measures which could damage
them, including the termination of the employment relationship and which
could be motivated by their position or activity.
The employer may give notice to or terminate immediately the employment
of a member of the relevant trade union body, a member of a works council or
a works trustee only with the prior consent of these employees’ representatives.
As previous agreement shall be considered as also failure by the employees’
representatives to grant consent in writing to the employer within 15 days of
receiving the employer’s request. The employer may only make use of this
previous consent within a period of two months from its being granted.
6.3.1.2 European work council
The claiming a right to transnational information and consultation under
the conditions stipulated by the Labour Code for any employer operating in
the territory of the Member States and each group of employers operating in
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
the territory of the Member States shall establish a European Works Council or
introduced other procedure informing of employees and consultation order to
ensure effective informing of employee representatives or employees directly
and negotiate with them in order for effective decision making of the employer
operating in the territory of the Member State or a group of employers operating
in the territory of the Member States retained. Conditions for the establishment
of a European Works Council or to arrange an alternative method of informing
the further are defined in accordance with Article 4 of the Directive.
6.3.2 Strike
The strike is defined as a partial or complete stoppage of work by employees. The right to strike is enshrined in the Constitution Art. 37, under
which the right to strike is guaranteed under the conditions laid down by law,
resulting in entitlement to claim this right within in law. The Act no. 2/1991
Coll. on collective bargaining in practice, however, may be involved in other
disputes between the parties to the employment relationship, which may not
be related to the conclusion of a collective agreement.
In assessing the legality of a strike outside the scope of collective bargaining
would be to follow the constitutional principle of “everything is allowed, what
is not forbidden.” Other strikes, though not put by Act on collective bargaining or other legislation, are not prohibited by our law. The opposite would be
directed to an unwarranted restriction or denial of the right to strike guaranteed by Article 37 of the Constitution. The right to strike is then a subjective
right of a trade union, which is all the time from the announcement of a strike
authorized by law to dispose.
According to the Constitution of the Slovak Republic, the right to strike,
have no judges, prosecutors, members of the armed forces and the armed corps,
and members of the Fire and Rescue Service. According to the Act on collective bargaining is not an option strike in case of a state of emergency in time
of emergency measures, and for employees of health or social services if their
participation in a strike endanger the life or health of citizens, for employees
operating nuclear power plants, equipment with fissionable material and equipment oil or gas pipeline, judges, prosecutors, members of the armed forces and
the armed corps, for members and employees of fire departments and rescue
teams and for employees in air traffic control and traffic personnel providing
telecommunications operations and finally for staff serving and operating public
water supply if by their participation in a strike endanger the life or health of
citizens and employees who work in areas affected by natural disasters where
the relevant state authorities announced extraordinary measures.
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6.3.3 Agreements with employees’ representatives
6.3.3.1 Collective agreement
The concept of a collective agreement nor the Labour Code, nor the Act on
Collective Bargaining explicitly do not define, according to the labour theory
it can be defined as a written bilateral legal act, which has at the same time the
nature of a legislative act. It is the result of collective bargaining between the
parties and regulates individual and collective relations between employers
and employees, respectively their organizations, as well as the rights and obligations of the parties. The subject of collective agreement is the legal regulation of the rights and obligations between the parties (commitment part) and
mooring rights and obligations in relation to wage and working conditions
and employees (normative content). Act on collective bargaining provides two
types of collective agreements: the collective agreement of a higher degree and
company collective agreements. The collective agreement of a higher degree,
as opposed to company collective agreements are concluded for a large number of employers, for one employer can apply only one collective agreement
of a higher degree. One of the parties is a trade union, the other party is the
employer, the state of the usually is not a party to collective bargaining, except
when acting as employer.
Content framework of a collective agreement defines the most general act
on collective bargaining by which collective agreements regulate:
a) individual relationships between employers and employees (individual
commitments),
b) the collective relations between employers and employees (collectively
liabilities),
c) the rights and obligations of the parties.
Collective agreement to be concluded under the sanction of nullity in writing, the signatures must be on the same page, the legal effect of a collective
agreement shall apply to all employees of the employer, regardless of their
union affiliation.
Collective bargaining is initiated by submitting a written proposal to conclude a collective agreement by either party the other party. The party is obliged
to respond to the proposal in writing within 30 days, unless the parties agree
otherwise, and in response must to comment on the those parts that have not
been adopted. Parties are obliged to negotiate and provide further requested
cooperation, if not contrary to their legitimate interests. The parties shall begin
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negotiations on the conclusion of a new collective agreement at least 60 days
before the expiry of the collective agreement.
To solve collective dispute the parties may agree on an intermediary. A proceeding before the mediator begins on the date of receipt of the dispute resolution by mediator. The draft resolution of the dispute before the mediator
a mediator shall prepare within 15 days of receipt of the request for arbitration
or from the date the decision to the determination of mediator a written record,
which is parties after verification authorized to sign without delay, the parties
unless otherwise agreed. The mediator shall submit record to the contracting
parties; if a mediator was determined Ministry transmit record also to the Ministry.
If a proceeding before the mediator was unsuccessful, the parties may after
agree to request an arbitrator to rule on the dispute. Proceedings before the
arbitrator shall commence on the date of receipt by the arbitrator. About receipt
of the request for arbitration by the arbitrator shall draw Parties minutes. By
delivering decision of the arbitrator to the Contracting Parties in a dispute on
a collective agreement, the contract is concluded.
Failing to conclude a collective agreement even after proceedings before
the mediator and the parties have not requested the arbitrator to resolve the
dispute, it may be as extreme means in a dispute on conclude collective agreements to declare a strike.
On the joint written proposal of the Parties of the collective agreement of
a Higher degree and under the conditions laid down in Act on collective bargaining, the Ministry may by generally binding legal regulation extend binding
force of collective agreement of a higher degree for employers in the industry
in which this higher-level collective agreement is concluded. Subject of the
proposal to extend the binding effect of a collective agreement of a higher degree may be only some of the industries for which it was concluded collective
agreement of a higher degree. Ministry may extend the obligation of Higher
only to an employer not covered by binding of another collective agreement
of a higher degree, and if the employer is the extension a collective agreement
binding a higher degree.
6.3.3.2 Agreement with work council
As the works councils have no legal capacity under the Slovak law, are not
eligible to enter into agreements.
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6.3.3.3 Transnational company agreement
Slovak republic is not headquartering county of any TCA.
On the other hand, for example Volkswagen was one of the companies to
actively integrate its Eastern European plants into its European Works Council.
The Group is quite active in Eastern Europe in Poland, Slovakia, Hungary and
the Czech Republic.
6.3.4 Conclusion
As in Slovakia is covered by a collective agreement only approx. 30% of
employees, it is necessary to increase this number. In order to protect workers
from abuse should encourage collective bargaining and social dialogue as
a component of a well-functioning system of labour relations.
6.4
Conclusion
The collective labour law is considered as something outdated and obsolete
in the former post-communist countries. Violent promoting of liberalization
and flexibilisation into industrial relations after the collapse of previous social
system led to growing social tensions and deepening of the factual differences
between the owners of capital and persons offering their own workforce. The
Blind faith of liberals and their followers in the ability of unlimited private
autonomy to ensure balance between subjects of the labour market has earned
serious cracks. Regardless of the existence of human rights and fundamental
freedoms, many employers degrade their employees to mere servants. Convenient legal protection mechanisms for employees are not an option but a necessity
of the labour law of the 21st century.
The specific character of the labour law presented in factual economical
dominance of the employer, requires protective intervention of the state power
in the form of granting the right to form trade unions and the right to strike.
Any attempts to use analogous procedures provided for in civil or labour law
constantly face serious obstacles interpretation difficulties. Impossibility of
obligations fulfilment does not have the same consequence in civil and labour
law nor does breach of obligations have the same penalties. Any legal institute
and legal provision of labour law includes more or less visible expression of
its protective function. Collective labour law plays the key role in preserving
human dignity within industrial relations.
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Adoption quality and European conformal legislation collective labour law
is a unique chance to defining basic principles and interrelationships that constitute a substantial part of the modern legal system with strong social emphasis.
International and European legislation, which now governs the area of collective labour law, perhaps with some degree of simplification called legislative
chaos. The basic premise of the transnational nature of collective labour law is
the fact that almost no legislation exists. That few legislation which is trying
to establish generally acceptable conditions in the European context is characterized by at least generality, respectively, these acts contradict each other. The
quality of legislation and does not in the slightest real state of collective labour
law, nor the requirements of the social partners.
Basic principles of collective labour law can find in a number of international and European sources. In particular in following documents:
Universal Declaration of Human Rights,
International Covenant on Civil and Political Rights,
International Covenant on Economic, Social and Cultural Rights,
the Charter of Fundamental Rights of the European Union,
ILO Convention no. 87 on Freedom of Association and Protection of the
Right to Organise, no. 98 on the right to organize and bargain collectively,
no. 154 on Collective Bargaining no. 135 on representatives of employees,
the Treaty on European Union and the Treaty on the Functioning of the
European Union,
the Directive 2002/14/EC of the European Parliament and of the Council
establishing a general framework for informing and consulting employees
in the European Community,
Directive 2009/38/EC of the European Parliament and of the Council on the
establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the
purposes of informing and consulting employees.
Most of these legal documents contain only strict provisions and references
to general principles of collective labour law. The legislation governing labour
institutes at international and European level, however, does not exist. Retention this legislation, the national legislature did not yield positive results. The
quality of legislative basis for labour law in national conditions is always prefigures the ambitions of the national legislature to be modern and progressive
but the real strength of the social partners.
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261
Although the Treaty has brought to European labour law more positive
moments within the meaning of better quality and a wider involvement of the
European Parliament as the only direct representative of the EU population,
lags far unification of legislation e.g. in questions implementation of collective
action in a transnational scale. Equally unclear is the possibility of concluding
European collective agreements by the European social partners, which could
be the dominant source of European labour law.
In the studied countries collective labour law represents long term overlooked area of labour theory. About this fact does not indicate only acute shortage of quality literature, which in Slovak or Czech language version practically
devoid, but the lack of knowledgeable specialist scientific capacities that professionally and systematically deal with this issue.
The regulation of collective labour relations as a result of it, still suffers
several shortcomings, which in practice causes its actors insurmountable obstacles. The growing social processes occurring in other areas of law (such
as liberalization, modernization, and flexibilisation) as if remain outside the
collective labour law. Become the only silent observer of social change, which
is currently unable to respond effectively and deal with their consequences.
Collective labour law is a complicated multiple-layer complex of relationships that are characterized by particular complexity, the existence of a large
number of subjects, but also enhanced by the presence of psychological, emotional separately side of personality. The complexity of collective labour relations is reflected not only in the ambiguities in the definition of complex content
of collective labour law, but also in pursuit of the definition of its subjects and
methods of implementation (e.g. in the form of lack of regulation strike in
Slovakia).
Collective labour law passed nevertheless after the change of political system in 1989, by certain developmental changes that can be demonstrated on
the definition of the concept. The theory considers as the primary objective
of collective labour law protection of workers from employers because them
considered weaker subject of employment. This perception of the collective
labour relations has its basis in the mid-19th century. During this period, the
staff association first began to create a counterweight to powerful employers
representing negative signs of early capitalism, which does not entitle employees almost no rights, nor the means to protect them. Working conditions
for employees did not reflect the result of an agreement between two entities
of employment, but the unilateral decision of the employer.
As a result of fundamental changes in society and the labor market raises
the strong need for a new definition of content of collective labor law. New
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
objectives and tasks will become the future pillars in the development of focal
collective labor law.
For further development of collective labour law will be determinant, three
facts:
new subjects entering into regulation of collective labour law,
changed needs of employees,
new social processes.
Modernization, liberalization and a strengthening individualism fundamentally change the actual conditions at the workplace, which subsequently do not
correspond with prerequisite of the current legislation. The apparent increase of
atypical employment relationships, cross-border mobility of workers or trade
union membership decline in European Union Member States are evidence
of this. Mentioned processes are causing shrinking importance of collective
labour law. As a consequence is restricting activities of employee representatives in the daily representation of employees at the workplace or in collective
bargaining with employers. The result is always negative impacts on employment protection of employees.
Trade unions are one of the key pillars of the practical exercise of the protective function of labour law, at the same time, however, the most discussed
topic of each professional and non-professional debate on labour law. Employers consider trade unions as a relic of the last century and would prefer them
if not completely abolish, at least significantly reduce their competence in the
field of employee representation. In most post-Soviet countries prevails in the
area of labour law considerable confusion. Today often EU Member States
try to eliminate residues socialist and incorporate into its legal regulations the
requirements of European and international documents. Taking into account
the national legislation in the field of trade union membership their activity
look considerably schizophrenic. Although aware of the presence of a large
number of international instruments that grant wide powers of trade unions
in representing of employees, high-quality national legislation is practically
nonexistent. Unions constituted and developed for decades its activities on the
basis of general references and principles of various labour laws and various
civil and constitutional rules. They obviously are not capable to take into account the true meaning of liberalization and flexibilisation efforts in labour law.
Correlation of employees and trade unions on the contrary can be described as one big uncertainty. Although employees in our countries feel to
the trade unions resistance or lack of interest because of their activity in the
6 Social dialogue
263
previous regime, in normal working life are finding that they have no other
comparable alternative. Works councils, even after the transposition of Directive 2002/14/EC, which granted them greater authority in the field of information and consultation of the employer, operates mainly formally. Often is full
compliance to decisions of the employer without creating a real opposition
of opinion. Trade unions on the other hand are still unable to cope with the
changed conditions in the labour market. Their action in recent years can be
generally characterized as a search for new positions and roles in labour relations. Although the theory of labour law considers trade unions as a social representative of economic and social interests of all employees ex lege, practical
fulfilment of this task in recent years more and more difficult. This is especially
loss of their own exclusive legal position of power in favour of other forms of
employee representation, but also substantial outflow of membership.
National regulations in EU countries differ significantly and show considerable deficiencies in the formation of trade unions, defining the relationship
between the forms of employee representation, assessing the representativeness
of a trade union and to establish clear criteria for entitlement to conclude collective agreements (the ability to collective bargaining). The prevailing dualism
of employee representation at the workplace through trade unions and works
councils acts disparate and formal, especially when most European countries
confers entitlement to collective bargaining solely in the hands of trade unions.
Comparison of European legal regulations shows that advanced modern
legal systems insist on the fundamental independence of trade unions not only
from the employer but also from public authority or other political representation. The theory of labour law considers cooperation union or federation with
its particular political party not only the inadmissible but also a fundamental
contradiction between the ideas of the existence of employee representatives.
Employee representation and protection of their interests cannot be applied
solely to the person of the employer, but also to other bodies working or economic market. Practice shows contrast that political involvement of trade unions is inevitable negative element of their activities and at the same time even
reason, which is signed for an overhaul tide membership. Joining unions and
political parties is vital to enforce their own policies and interests. An essential
issue for the union is not always determining the permissible extent of political
connections.
Indisputable argument is that unions are regarded as lobbying organization.
They act as a voluntary association of employed persons and therefore should
not surprise their efforts to promote their own goals by finding suitable partners.
With view of this fact it seems the orientation of political parties as the right
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
solution. The rate of their political connections is often directly proportional
dependent rigidity legislation and specific country.
Political engagement of trade unions should always be only a means, not
a goal of their efforts. Political relations are not the only way of achieving trade
objectives. Organization of pressure demonstrations, own representation in
parliament through elected representatives or the right to strike are traditional
modes of trade union lobbying. The degree political commitment, however,
brings to the debate on trade union political commitment the issue of the future
direction of trade unions. Political links threaten the essence of the existence
of a trade union as the representative of employees. The primary reason for the
existence of trade unions was to protect the interests of employees and their
representation to the owner of the means of production, namely employer. Nowadays, however, fail to see drastic promoting the interests of employees in
individual enterprises. Trade unions in Visegrad countries often do not reflect
the position or remain silent extras.
265
7
General conclusion
On the date of accession of the Czech Republic, Hungary, Poland and
Slovakia into the European Union began on apply their territory as primary
as well as secondary European law. The position of these countries in terms
of commitment of the EC/EU law has become exactly the same as position
of previous Member States and European law affects almost all areas of life.
The European Union is based on the law, many of its policies realizes through
legislation and is sustained by respect the rule of law. Success in achieving
its many goals that are required by the Treaty and legislation depends on the
effective application of Community law in the Member States. The laws do
not serve their full purpose, if properly applied and enforced.
Member States are obliged to implement EU law under specified conditions
arising from EU primary law. By checking compliance and accuracy acceptance of European law into the national legal systems of the Member States
are responsible for the EC Commission. There are three types of binding legal
instruments of the European Union: regulations, directives and decisions, and
two types of non-binding instruments: recommendations and guidelines. These
tools differ in the recipient, the extent of the application by the Member States
and the impact on national laws. Directives are binding only as regards the
reflection of the content and the objectives into national legislation. Directives
may be addressed to selected or to all Member States of the Union, addresses
are defined when issuing the directive. Member States are free to decide when
choosing methods such as content individual directives will transpose. The
transposition of EU law into the legal systems of the Member States is a complex process that affects many areas of our lives. European law in this way
gets into the legal order of the Member States to control certain relations was
identical in the European Union and not lose its meaning.
The aim of this publication was to bring the experience with the implementation and application of European labour law in the V4 countries.
Transposition is projecting of the formal requirements of EU law in the
transposition measures, which is a national law. Transposition and implementation of EU law does not take any special process, but the legislative process,
when the content of Directive is incorporated into national legislation. However, this process tends to be very tedious, which is usually also one of the
shortcomings in the transposition and implementation of EU law.
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Implementation and Enforcement of EU Labour Law in the Visegrad Countries
The basic prerequisite for the proper implementation of the Directive is to
achieve full compatibility of national law with aim and the requirements within
the prescribed period. Another requirement is to make clear and accurate notification of the national transposition measures to the European Commission. The
notification must include information clearly, and texts of laws, regulations and
administrative provisions or any other provisions of national law and, where
applicable case law of national courts, in the opinion of the Member State shall
ensure the fulfilment individual requirements imposed on them under the Directive. In case, where directive requires that, is necessary to ensure the fulfilment
of non-legislative aspect of transposition – sending various information, such
as reports, analyzes, correlation tables, and data relevant implementing bodies.
Based on our findings, it can be stated that the law governing labour laws
conform to European standards. However, Member States sometimes do not
pay enough attention to the correct interpretation and application of the law or
have a delay in the implementation and communication of national transposition measures. Member States may encounter difficulties of interpretation and
choice of procedural options. May transpose the directive or interpret a regulation in a manner that is not consistent with that action by the Community.
These differences and difficulties of interpretation can be replicated at regional
and local level. In some cases, legal provisions may be vague or difficult to
implement. The large volume of correspondence or infringement of certain
legislation in several Member States can reflect the far-reaching content or
scope of the instrument or stakeholder interest, but may also reflect the provisions for which the Member States must expend extra effort to implement or
apply or understand.
Sometimes there is an application problem that arose during the implementation of EU law into national law, for two reasons. Implementation of certain
issues wasn’t content, or legislative managed, but often the quality of several
directives generated many problems.
In V4 countries prevails effort prompt transposition into domestic law well
prepared, however, shortcomings arise in implementing the law because of
poorly functioning institutions and the implementation process. These failures
are affected by the economic situation of countries, weak civil society, low
awareness of European law and the lack of organization of labour inspection.
The causes may be sought in weak control mechanisms of the EU institutions
in relation to monitoring the implementation of the Directive. As a result there
is a condition in which countries have poor motivation promptly report formally
7 General conclusion
267
sufficient and early transposition without prejudice to the wording of the directives really implemented.
In general, it can be stated that the analyzed regulations are formally in accordance; however, problems may arise in the application of standards for the
courts. For example courts often do not solve cases of discrimination, which
can be put down to relatively poor knowledge of those involved as the society
is not familiar with the possible solutions of such cases through courts. It can
also be attributed to the fact that the victims often prefer out-of-court settlement
as they are afraid of large sums of money that have to be paid in cases when the
victims lose the case. Current legislation still lacks an effective means through
which the discriminatory behaviour could be proved. But on the other hand can
be stated, that many principles has been enshrined in the new regulation makes
the current legal regulation better arranged and structured. The position of the
victims of discrimination is also better due to the institute of shifting of burden
of proof on the defendant as the victims are in a much better position when
seeking their rights. Without these changes made recently, such discrimination
cases would be practically unsolvable.
KATALOGIZACE V KNIZE – NÁRODNÍ KNIHOVNA ČR
Križan, Viktor
Implementation and enforcement of EU labour law in the Visegrad countries /
Viktor Križan et al. – 1st ed. – Olomouc : Palacký University, 2014. – 267 s.
Nad názvem: Univerzita Palackého v Olomouci Právnická fakulta
ISBN 978-80-244-4026-2 (váz.)
349.2 * 342.724 * 340.137 * 341.171(4) * (4-191.2)
– labor laws and legislation – Visegrád Group countries
– anti-discrimination law – Visegrád Group countries
– harmonization of laws – Visegrád Group countries
– European law
– collective monographs
– pracovní právo – zem Visegrádské skupiny
– antidiskriminační právo – zem Visegrádské skupiny
– harmonizace práva – zem Visegrádské skupiny
– evropské právo
– kolektivní monografie
344 – Labor, social service law [16]
349 – Pracovní, sociální, stavební právo. Právo životního prost edí [16]
JUDr. Viktor Križan, PhD., et al.
Implementation and Enforcement of EU Labour Law
in the Visegrad Countries
Výkonný redaktor doc. PhDr. Vlastimil Fiala, Ph.D.
Odpov dná redaktorka Mgr. Hana Pochmanová
Technická redaktorka RNDr. Anna Pet íková
Návrh obálky a grafické zpracování obálky Ji í Jurečka
Publikace ve vydavatelství neprošla redakční jazykovou úpravou
Vydala a vytiskla Univerzita Palackého v Olomouci
K ížkovského 8, 771 47 Olomouc
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První vydání
Olomouc 2014
ISBN 978-80-244-4026-2
Neprodejná publikace
VUP 2014/190
JUDr. Viktor Križan, PhD., et al.
Implementation and Enforcement of EU Labour Law
in the Visegrad Countries
Editor-in-chief doc. PhDr. Vlastimil Fiala, Ph.D.
Executive editor Mgr. Hana Pochmanová
Technical editor RNDr. Anna Pet íková
Cover design and layout Ji í Jurečka
The publisher did not provide the editorial stylistic revision of this publication
Published and printed by Palacký University, Olomouc
K ížkovského 8, 771 47 Olomouc
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First edition
Olomouc 2014
ISBN 978-80-244-4026-2
Not for sale
VUP 2014/190
Michał Barański