On behalf of the Czech Republic
Constitutional Court decided on 12 March 2008 in plenary in the composition
Stanislav Balik, Frantisek Duchon, Vlasta Formánková, Vojen Güttler, Ivana Janu,
Vladimir Kurka, Dagmar Lastovecká, Jiri Mucha, Jan Musil, Jiri Nykodým , Paul
Rychetský, Miloslav Vyborny, Elizabeth Wagner and Michael Židlická
about the group of deputies of the Czech Parliament, represented
prof. JUDr. Miroslav Belin, a lawyer based in Prague 1, Long
13, a group of senators of the Parliament of the Czech Republic, represented by JUDr.
Oldrich Benes, a lawyer based in Ostrava - Marianske Hory, Mojmírovců
41, the annulment of § 2 para. 1, § 4, § 13 para. 2
point. g) § 18 words "§ 48, 49 ', § 20, § 24 para. 2 second sentence, § 33 paragraph
. 3, § 38 par. 2, § 46, § 61 paragraph. 1, § 61 paragraph. 5, § 73 para. 1
§ 73 para. 2 beginning of the first sentence to read "Where the employer is another
legal or natural person than specified in § 33 par. 3, "§ 278
paragraph. 1 of the first sentence, the words ", in which no trade union organization
," § 281 paragraph. 1 end of the first sentence read, "in which
no trade unions," § 282 paragraph. 1 point. c), § 282 paragraph. 2
part of the sentence to read "until the conclusion of the corporate collective agreement"
§ 286 paragraph. 2, second sentence, § 287, § 305 paragraph. 1 of the first sentence amended | || ", for which no trade unions," § 305 paragraph. 1, second sentence,
§ 306 paragraph. 4, § 321, paragraph. 2, § 321, paragraph. 3, § 321 paragraph. 4, § 322,
§ 325, § 326, § 342, § 364 paragraph. 3 after the semicolon Act no.
262/2006 Coll., the Labour Code,
I. The provisions of § 2 para. 1 sentence, second, third and fifth, § 4, § 18
words "48, 49", § 20 first sentence after the semicolon in the words ";
It does not apply in the case of an act towards creation of employment or
conclusion of an agreement on work performed outside employment, "§ 24 par. 2 sentences
Second, § 278 paragraph. 1 in the words" u
which no trade union organization, "§ 281 paragraph. 1 the words" in which no trade union organization
"§ 282 paragraph. 1 point. c) and paragraph. 2 the words "until
conclusion of the company's collective agreement," § 305 paragraph. 1
part of the first sentence the words "for which no trade unions," § 305 paragraph. 1 | || second sentence, § 321, paragraph. 2, 3 and 4 and § 322 paragraph. 2 and 3 of Law no. 262/2006
Coll., the Labour Code, shall be abolished on the date of publication of this judgment in the Collection of laws
II. The remainder of the proposal is rejected.
First A group of deputies in accordance with Article. 87 paragraph. 1 point. a)
Constitution of the Czech Republic (the "Constitution") requesting annulment of the aforementioned
provisions of the Act no. 262/2006 Coll., Labour Code (the "
new Labour Code" or "NFA" ). In the opening
comprehensive justification of the proposal states that it is directed against the Act. No. 262/2006 Coll.,
Labour Code, which was adopted on 21. 4. 2006 and promulgated on 7. 6.
2006, after the Chamber of Deputies of the Parliament of the Czech Republic
first overrode a negative resolution of the Senate of the Parliament of the Czech Republic and
subsequently returning the act by the President. The new Labour Code was
apparently adopted without consensus between the social partners and the government coalition.
Draft of the new Labour Code was a while - according to the petitioners - from the very beginning
criticized. On the unconstitutionality of certain provisions
has already pointed out during the preparation and negotiation of government itself
draft of the new Labour Code. These objections are to some extent reflected in the opinion
Legislative Council of the Czech Republic on a draft of the new Labour Code
Second The new Labour Code, according to the petitioners'
be judged in terms of its constitutionality, and with respect to the reasons that led to
need for new regulation of labor relations. The petitioners emphasized that
need new legislation was unquestioned and was triggered by changing
situation and needs of society. This new legislation should bring
liberalization in these relationships, and reducing law-based
significant imbalance (asymmetry) between the subjects of labor relations. The former legislation
already reportedly did not respond to social needs, as it has its origins in the totalitarian regime
; its residues that persist into
present, do not have in place a democratic legal state.
The petitioners said that since state interference must always respect the principle
fair balance between the general interest of society and
protection of fundamental rights of the individual and therefore reflect changes in
company had a new Labour Code to remove the now
unfounded significant interference in constitutionally guaranteed rights and freedoms.
From the perspective changes to company needs and general interests, which should eliminate
illegally surviving Imperative labor laws and
baselined all areas of labor relations, as well as objectively unjustifiable favoritism
employees and trade unions against employers
it is therefore to be assessed according to the petitioners:
new legislation status of employer and employee status
trade unions, the relationship between employers and trade
organizations, trade unions position themselves, as well as representatives
workers in general, and the status of various employers and employees
each other; It is also necessary to assess the adequacy
interference in property rights, not only employers, and how the adequacy of interventions
to the contractual freedom of the Parties to the different relationships and scope
of contractual freedom and the proper way of modifications of contractual freedom in the new | || Labour Code, and its applicability, even in conjunction with the concepts enshrined
delegation of the civil Code. In view of the foregoing,
however, in the opinion of the petitioners should be noted that several provisions of the new Labour Code
- taking into account the current social and economic situation
- correspond to the needs of these changes (and therefore legitimate expectations
) and quite unreasonably, without reasonable and objective justification
interferes with constitutionally guaranteed rights and freedoms, such as
equality, property rights associated with contractual freedom, the right of businesses
right to personal freedom.
Third The petitioners also in the proposal under item II. They approached
specific constitutional arguments. First
claimed inconsistency of the contested provisions with the principle of the rule of law and the principle of contractual freedom
and argued that there was also interference in property rights (specifically mentioned
Art. 1 of the Constitution and Article. 11 paragraph. 1 of the Charter of Fundamental Rights
Fourth The current Labour Code had by petitioners from the outset
mandatory nature and was built on the principle "what is not allowed is forbidden
". Such modifications nature of labor relations based on
since its inception, and the different economic and social conditions
pre-November period. Changing both economic and social terms
sparked the need for change and the very nature of the Labour Code
terms of liberalization of labor relations and editing the opposite principle "
what is not forbidden is allowed," as this principle is formulated in Article .
paragraph 2. And Article 4 of the Constitution. 2. 3 of the Charter of Fundamental Rights and Freedoms (
as the "Charter"). The company apparently quite legitimately expected (in essence
) the introduction of contractual freedom in labor relations, where
should continue to have the legislation the mandatory character only where there
public interest and where it is really necessary to protect employees ;
The other would allow the Parties to the agreement so that it will continue
also possible closure and non Labour Code modified
contracts. Although the new Labour Code at first glance that his
treatment undergone a change in this direction, it is not so, since legislation
the principles contained in the provisions of § 2 para. 1 of the new Labour Code is inconsistent
, vague and indeterminate and ultimately inapplicable, but certainly not establishing
declared freedom of contract. In doing so alone
Constitutional Court has recognized a number of its decisions the principle of party autonomy and freedom of contract
constitutional dimension. In the Constitutional Court,
how they further argue that the petitioners [see Judgments. Nos. Pl. US 24/99
dated 23 May 2000, Reports of Judgments and Decisions of the Constitutional Court (hereinafter referred
"Collection"), volume 18, judgment no. 73, pp. 135, promulgated under No.
. 167/2000 Coll .; sp. Nos. Pl. US 5/01 of 16 October 2001, Reports
decision, volume 24, judgment no. 149, pp. 79, promulgated as no. 410/2001 Coll .;
et al. Nos. Pl. US 39/01 of 30 October 2002, Reports of decisions
volume 28, judgment no. 135, pp. 153, promulgated under no. 499/2002 Coll.]
Essential part of the democratic rule of law is protection of freedom
Contract, which is a derivative of the constitutional protection of property rights under Article
. 11 paragraph. 1 of the Charter (whose main component is ius disponendi).
Freedom of contract, the Constitutional Court confined itself to the right
ownership, although it is precisely in this context that it is enshrined in constitutional law
strongest. In its judgment. . I. ÚS 113/04 dated 4 May 2004
(Collection of Decisions, volume 33, judgment no. 63, p. 129) stated that
respecting the sphere of autonomy of the individual is a general condition for the functioning
the rule of law within the meaning of Art. 1, paragraph. 1 of the Constitution, respectively. Art. 2. 3
Charter. Individual's right to autonomy
corresponding requirement imposed on state power to recognize autonomous expressions of the will of individuals and it
appropriate conduct. If such conduct does not interfere with the rights of third parties
must state power (realized and law) expressions of individuals
only respect, or approve of. The interference with the freedom of the individual
can resort only in cases that are justified by certain
public interest, if such interference is proportionate (adequate)
with regard to the objectives to be achieved. The new Labour Code its legal
finish very basic rules and principles, such as this contractual arrangement
freedom and petitioners' view, completely contrary to the fundamental requirements
law and § 2 para. 1 brings the legislation || | imperfect, not only legally and factually wrong but also unconstitutional.
Fifth The new Labour Code in determining its nature (§ 2 para. 1), which is ultimately
again finish mandatory, apparently disregards
autonomous sphere of individuals and infringes the fundamental rights and freedoms without
this intervention is justified by the public interest and without respecting the principle of proportionality
. There may also violate the principle (Art. 2. 3 of the Charter)
according to the individual and his freedom of action in the rule of law have always
priority over state power realized by law. In addition to the inadequacy and
baselessness interference with fundamental rights and freedoms in question while
under the new Labour Code violates the principle of recognizability
legal status and predictability of legal decisions.
6th The petitioners refer to the provisions
1, first sentence, which states that "
Rights or obligations in labor relations may be adjusted
notwithstanding this Act if this Act expressly prohibits
or the nature of the provision that since it is not possible to deviate
". A degree of legal uncertainty has apparently raises determine cogency
legal norms so that it is to be inferred "from the nature of the provisions" without
would "possibly this was explicitly for mandatory" in the new Labour Code
intended or it directly resulted from his diction, which contains clear
command or prohibition. If Imperative certain standards specified using
wording "of nature provision that" requires Imperative or
dispozitivnost detect always up to interpretation with regard not only to
related provisions interpreted legal rule or regulation.
In this case, however, the final confirmation of the interpretation
either one of the parties, or even all, thus validating
relevant acts or provisions occur subsequently, retroactively,
court decision. Given that the parties can not have
such cases, the assurance of the correctness of his interpretation of the possible
dispozitivním character of the standards until a final decision
court is disturbed by the principle of recognizability legal status and legal predictability
decision; It may seem like contradictory
not only with the principle of legal certainty (Art. 1, paragraph. 1 of the Constitution), but in its
result of this could be in conflict with the constitutional guarantee of the right to a fair trial
(Art. 36 para. 1 of the Charter), since one of its aspects is
just postulate a minimum level of predictability
court decision (judgment I. ÚS 654/03, Collection of decisions, volume 32, No.
finding. 27 pg. 255). However, this is not - according to the petitioners' view - from the point of view of legal certainty
editing dispozitivnosti / kogentosti the Code
work only and most important problem and the problem of legal certainty by not
exhausted. Legal recognizability and legal security is at such a fundamental
provision, which is to define the nature of the regulation (in terms
dispozitivnosti or cogency), contradicted numerous other
Fact that ultimately leads that this legislation
meets the requirement of "foreseeability" as predictable is only
if origi- nal formulated with sufficient precision to enable any person
- if necessary with the help of knowledgeable advisors - to adapt her
their behavior (see the ECHR decision: Malone v United Kingdom;
decision Amann against Switzerland, Rotaru against Romania; Gorzelik and other
against Poland). In the opinion of the petitioners in the case of legislation
new Labour Code is not only not "every" person is able to "predict"
what legal standard sets, but do not reach a clear conclusion nor
"knowledgeable advisors". They recalled that the Constitutional Court also constantly reminds
connection between the principle of predictability implications of the legislation with
principles of the rule of law (cf. Judgment Pl. ÚS 6/2000, Collection of decisions
Volume 21, judgment no. 22, p . 195, promulgated under no. 77/2001 Coll.). In other findings
sp. . I. ÚS 337/99 (Collection of Decisions, volume 20,
judgment no. 170, p. 205), and sp. Ref. IV. US 34/97 (Collection of Decisions
Volume 8, judgment no. 49, p. 11) states that "The Constitutional Court shares the opinion of our legal
theory that one of the essential characteristics and assumptions
law and legal certainty, such an arrangement is the state in which
every natural person and a legal person can have confidence in the law.
The first prerequisite of certainty in the application of law is the recognizability
legal norms, respectively. recognizability legal status and legal predictability
7th By design, the recognizability presumption of legality and legal certainty
further erodes the new Labour Code in its § 2 para. 1, followed
combination of other, mutually not corresponding definition
kogentosti / dispozitivnosti laws and the nature of the new Labour Code
as well as their vague and ambiguous definition.
The new labor code is as above (§ 2 para. 1 first sentence)
in defining mandatory rules does not stop and in § 2 para. 1
expressly provides that "
Rights or obligations in labor relations can not be adjusted
notwithstanding this Act in the cases specified in § 363 paragraph.
Second "; stipulating that it is not possible deviation from
expressly specified provisions (similar to the regulation of the Commercial Code).
This wording corresponds to the principle according to which it is possible to derogate from all
provisions of the new Labour Code, except explicitly specified
sections, but it alludes to the provisions of § 2 para. 1 first sentence. The question
inducing interpretative ambiguity is whether the first sentence of the last sentence
provisions of § 2 para. 1 denied and is therefore meaningless, or whether they are to be interpreted
8th The petitioners argue that the new Labour Code in defining
cogency, however, does not end there, as well as in its
§ 2 paragraph. 1 sentence of the third and fourth sets
Deviation is also possible by provisions imposing an obligation, but it
apply if the terms of diversion in favor of the employee.
Deviation from the provisions contained in § 363 paragraph. 1, which are incorporated
regulations of the European Communities, it is not possible, this does not apply when it comes to
diversion in favor of the employee.
". These provisions supposedly raise further doubts in relation to the above-mentioned two
(new Labour Code has been used simultaneously)
ways of defining cogency. Very problematic is then said to diction "
This does not apply when it comes to diversion in favor of the employee.
". Whether it will be a "deviation in favor of the employee 'is a
absolutely unrecognizable as they depend" on your perspective "and always
on this matter will vary views of employers and trade
organizations, including in a situation where the employee and employer to present
'deviation' agrees and agrees with him. In this case, it is
recognizability legal standards and greater predictability of legal decisions
impossible, preventing participants of labor relations
foresee the consequences of their actions and to adapt their behavior.
9th According to the petitioners, all this unintelligible, vague and unconnected to each other
provision contained in § 2 para. 1 was then completed another
definition of cogency provisions of the new Labour Code, and it's completely
innovative and unconventional concept of delegation for binding civil and
labor law. provisions
§ 2 paragraph. 1 second sentence
specifies that "
Deviation is no longer possible since adjustments in employment relationships, since
provisions that refer to the use of the Civil Code, unless
in this Act specified otherwise in damages.
". From § 4 shows that the Civil Code (hereinafter "CC") is
to labor relations under this Act apply only if
this Act expressly provides. Said mandatory treatment
new Labour Code in relation to the delegation of the Civil Code
causes additional problems of interpretation, since the mandatory provisions of the new Labour Code
link, without the possibility to derogate on
dispositive provisions of the Civil Code. The new Labour Code specifies
then the provisions of the Civil Code, the labor relations
apply, especially in § 326 and § 18th utilization concept
delegation in connection with several ways of defining dispozitivnosti and cogency provisions
the new Labour Code and resulted in the opinion of the petitioners in the legal
treatment not only factually incorrect but also pointless, incomprehensible and
founding inapplicability of many provisions of the new Labour Code.
First said it should be stressed that from the (now under consideration here alone
) provisions that can not be used any adjustments
institute any legal or contractual type contained in the Civil Code
if they specifically not to refer the new Labour Code. In such a situation
completely loses content and meaning of the provisions of § 2 para. 1
trying to defend the new Labour Code dispositive nature of this legislation, because
derogation can not agree basically nothing other than what is || | contained in the new Labour Code or in the organization, which is expressly
new Labour Code refers. The concept of delegation prepared a new Labour Code
banning the use or modification of legal provisions
which are not included in the new Labour Code and the provisions to which it refers
, and therefore does not give any room for contractual freedom of the parties || | labor relations. In conjunction with other prohibitions depart from
certain adjustments to the new Labour Code then in addition the concept of delegation
(enshrined in § 4 and related provisions NZP) ultimately leads to
sheer cogency of the whole new Labour Code; It does not correspond
individual provisions (alone), nor
proclaimed intention of the creators of the new Labour Code nor the legitimate expectations of society, and even
nor the public interest and social needs. The new Labour Code therefore does not meet their declared
dispositive nature or formally.
This, however, it is not in the new Labour Code nor substantively filled. In application of § 2 paragraph
. 1 in connection with the remaining provisions shows that
declared dispositive nature, which should be in § 2 para. 1 NZP
adjusted, is only "apparent" and can even say that "bogus", || | because constitutionally guaranteed freedom of contract under Art. 11 paragraph. 1 of the Charter
can not modify and enforce just by being verbally declared
in some of the provisions of the Act, but it must be secure and allow even through
other statutory regulation.
10th As a result of the aforementioned adjustment according to the petitioners' disturbed
requirement of legal certainty and the requirement so.
Quality Act, defined by the European Court of Human Rights, but also legitimate expectations.
Subject-matter gets into conflict with the constitutional guarantee of the rule of law in Article
. 1. 1 of the Constitution; while this adjustment is unreasonably interferes
into freedom of contract and in connection with it and the property rights
in employment relationships. The new Labour Code was apparently still trying
, maybe even more than before, on baselined if possible, all
areas 'labor' life; such an effort, however, as the Constitutional Court
in judgment file. Ref. II. US 192/95 (Collection of Decisions, Volume 4,
judgment no. 73, p. 197) noted the inherent totalitarizaci
company. Democratic rule of law is based not on legislation that would
znormovala all areas of life, but on the legislation
which defines only the basic structure within which free
11th The new Labour Code modified concept
delegation of the Civil Code establishes the legal uncertainty and instability also in the sense that
Time Adoption of the new Civil Code comes
need substantial amendments and the new Labour Code. The concept of delegation
additionally delivers significant application problems, contradicts the principle of so-called.
Quality and denies the rights and confidence in the law. These can result from the simultaneous existence of two
otherwise unrelated and not corresponding provisions
new Labour Code and the Civil Code, which must also
(not the subsidiary) to apply due to the (mandatory)
reference to the new Labour Code . May occur even situations that the drive without any
provisions or principles on which the new Labour Code does not expressly (
and therefore should not be used), you can not explain a situation and
arrive at legal decisions particular case.
Given treatment then leads to the fact that if the courts should decide, they will have
"breaking away" from the wording of the relevant provisions of the new Labour Code and
not to look for them. Such legislation, however, does not correspond with
legal certainty as one of the characters and assumptions law.
12th Interpretation problems can cause, for example, and the application of § 573 of the Civil Code
(consequences decommitment) or the provisions of § 575
(impossibility of performance and their consequences) in relation to employment and labor relations
others who also founded
significant legal uncertainty. In the case of § 573 is the first question whether it is really possible
from this adjustment deviate, even from the perspective of the Civil Code
is a dispositive provision; subsequently, however, the question arises
applicability of § 573 follow-up to § 572 paragraph. 2
currently in an employment relationship. Significant legal uncertainty then allegedly
application invokes § 575 for a case where it becomes impossible
performance of either party to an employment relationship, since under § 575
this case agreed commitment expires, the law at the moment,
the impossibility of performance occurred. While for the impossibility of performance within the meaning of § 575 OZ
is considered apart from the impossibility of objective impossibility subjective. For example
subjective impossibility of performance within the meaning of § 575 is given while
situation where permanently impaired health condition of the debtor prevents him to fulfill the commitment
purely personal. While an example of commitment to a purely personal nature
is the performance of work for the employer in the employment context.
The question then might be, how it will be applied at extinguishment and described
subjective impossibility of performance (see § 575 of the Civil Code § 326
over new Labour Code) in the case of restricted employment, and therefore whether
may occur in this case (no more) to termination of employment
relationship; if it were not so, it is not apparent why, if
new Labour Code in its § 326 provides an explicit reference to that provision
§ 575 of the Civil Code. Legal uncertainty is further
reinforced by the new Labour Code does not regulate at all to do if they would
between the parties was the question of termination of employment questionable;
while it is not and can not be an argument for that, would thus for employment
not the provisions of § 575 of the Civil Code (in conjunction with
§ 326 of the Labour Code) apply, but rather demonstrates the unsuitability and | || inability to use the concept of delegation of the civil Code
13th The petitioners asserted that, due to bans 'deviation'
contained in § 2 para. 1 and enshrined the concept of "delegation"
interpretation problems arise even in the provisions of § 491 paragraph. 2 of the Civil Code, on which
it is in § 326 of the Labour Code also explicitly referenced.
Under this provision should be used analogies
Civil Code (ie. U unnamed contracts analogous application of the provisions of the Civil Code
governing contractual legal relationship of the content and purpose of his closest
), which, however, faces on the above-mentioned principle "delegation"
(see § 4) and the inability of other provisions of the civil Code
than that NZP is explicitly referenced.
14th Huge intervention in the legal certainty of participants
employment relationship is, according to the petitioners, the newly established the "
withdrawal from the treaty." The new Labour Code in its § 18 provides for the possibility
withdrawal for reasons specified by law or agreed upon in the contract
. § 18 expressly refers, among other things. To § 48
Civil Code, which provides that "
The contract participant may withdraw if it is in this Act
specified or agreed by the participants.
". Moreover, it should be emphasized that the legal effects of the contract
contract rescinded arise ex tunc, unless the law provides otherwise or
participants agreed otherwise (cf. "
Withdrawal from the contract is from tunc ...
"). § 18 in connection with § 48 of the Civil Code therefore allows
arrange for labor relations, the possibility of withdrawing from the contract, and it
without any exceptions, which apparently - according to the petitioners -
leads to the conclusion that the possibility of withdrawal can be arranged in the employment contract.
Legal conclusion that according to the legislation of the new Labour Code can withdraw
and the employment contract, evidenced by the fact that the new Labour Code itself
longer limited [as § 245 par. 4 Act no. 65/1965 Coll., the Labour Code,
amended, (the "LC")]
option of withdrawing from the contract of employment, only in cases where the employee failed to start
employment (§ 36 para. 2) . The new Labour Code and in § 36 para. 2
covers only one (legal) reason for withdrawing from a contract of employment, but does not eliminate negotiation
resignation (and other reasons)
or use other statutory withdrawal options. The above
legal conclusion is not interfered nor to § 19 para. 2 of the new Labour Code
according to which it can not be a legal act invalid employees
harm if it is not caused solely by himself, as in the case of using the law || | prescribed possibility of withdrawing or use the law afforded negotiation
possibility of withdrawal is given, none of the grounds of invalidity of a legal act.
15th As already stated, the provisions of § 18 of the Labour Code in connection with
provisions of § 48 of the Civil Code is not the only provision
new Labour Code, which allows withdrawal.
Possibility of withdrawal states and § 49 of the Civil Code, to which expressly refers
§ 18 of the Labour Code and § 497 CC, § 517 par. 1 Civil Code, § 561 paragraph.
OZ 2 and § 575 paragraph. 3 OZ, which expressly refers to the new Labour Code in its
provisions of § 326. in addition to the general provisions of § 48 OZ, which regulates
secondly the possibility of withdrawing from the contract for legal reasons and secondly
provides opportunity to negotiate withdrawal
participants themselves, are due to an express delegation contained in the new Labour Code
(§ 4 and 18, referring to § 49 and § 326 OZ NZP
referring to the provisions of § 497 Civil Code, § 517 par. 1 OZ, § 561 paragraph. 2 OZ and § 575 paragraph. 3
OZ) directly established and legitimate reasons to terminate contracts in
labor relations. (Eg. If the employee fails
its debt to the employer or in an additional reasonable period
employer had provided, the employer will have the right under § 326
Labour Code in connection with § 517 par. 1 OZ resign and from the work
contract.) Legal uncertainty is intensified especially in cases
statutory withdrawal from contracts (as well as in cases where the contracting parties
not use the legal option to agree otherwise
effects of withdrawal), as then these employments void from the beginning (and the
law without the possibility to agree otherwise); Thus, for example.
at the legal withdrawal from the employment contract would be the employment contract canceled by
beginning, and will therefore be regarded her as if she were closed, which is
significant intervention into the legal security of participants of the employment relationship, and
not only in terms of labor law, but also the rights of the public, from the viewpoint
pension insurance and social security.
This is a significant intervention into the social security of participants in this
employment relationship. Withdrawal from a contract of employment with ex tunc would supposedly could lead
precisely in relation to the social security system to serious legal
konsekvencím because the social security system with this eventuality
count and not the possibility of such adjustments || | labor relations in any way ready. According to the petitioners
it is therefore crucial question is whether such an adjustment in its consequences
could lead, for example. To challenge the establishment entitlements of employees (concerned
withdrawal from the employment contract with effect ex tunc) for pensions,
and thus also to intervene in social security and social rights
Security guaranteed in Art. 30 Sec. 1 of the Charter
the Laws (sic - Ed. Ed.).
Use the negotiated withdrawal from contracts of employment for any reason or usage-based law
due to withdrawal from a contract of employment with effect ex tunc
which has resulted in the fact that the employment relationship, which was founded and existed
between employer and employee must be a number of years,
retroactively canceled and he is treated as if they never existed, thus
it represents a substantial interference in the rule of law.
16th According to the petitioners, NZP is built on the principle of relative
invalidity of legal acts (§ 20 of the new Labour Code).
The new Labour Code is not listed exhaustively list the cases
relative nullity, and this is not generally built on absolute nullity
specifying the reasons for having the nullity of a relative, but
relative invalidity of legal acts in this
provision formulated in reverse, ie. general, generally narrow (and in this context, in addition
illogical) defining exceptions; It follows that, according to the legislation
NZP (Except as noted - "in case of an act towards
commencement of employment or an agreement on work performed outside employment
") all legal acts made in an employment relationship
deemed valid if it is someone who is such an act of prejudice,
pleaded invalidity of legal act (cf. "
if it is a ground of invalidity of a legal act, it shall be
legal action as valid if the person who is such an act of prejudice, invalidity
. "In effect, this means that a priori every legal act
valid and invalid by It could only happen in the event that it is he who is
such act offended permits. at the same time, however, it should be emphasized that
"nullity can not reach the person who he has caused." Given
provision is not interpreted so that the invalidity
could reach only those who caused it himself, meaning "exclusively" but he
who caused it and together with another person. Given the nature of contractual relationships
is then necessary - in the opinion of the petitioners -
lead to the general conclusion that the possible invalidity according to the text of § 20 is not possible with
contracts call (up to in § 20 NZP specified exception ie. until the legal
acts leading to the creation of employment or for the conclusion of
work performed outside the employment relationship), because of the nature of things it invalid
caused both (ie. all) Party, and therefore here legally
no one is entitled to invoke the nullity. The wording of § 20
heads said that all legal acts within the framework of labor law
be invalid (and for such reasons that the other private
relations would be considered null and void) will be from
terms of the new Labour Code considered valid, and in many cases even without
opportunities to reach their invalidity, which is incompatible with any
principles of democratic rule of law. This unconstitutional is complete
fact that the right to invoke the relative nullity expires, in
three-year limitation period which starts to run from the moment when the right could be exercised for the first time
. On this point, the petitioners add that although
So the new Labour Code refers in § 18 of the provisions of the Civil Code
, many of which regulates and establishes the grounds for invalidity of the
legal acts, namely, the Civil Code invalid | || absolute, it is obviously necessary with respect to the wording of § 20 ( "
case on grounds of invalidity of a legal act, it shall be a legal act under valid ....
") arrive concluded that the NFA would imply only reasons causing
annulment ( "on grounds of invalidity"), but not establishing invalidity
absolute but relative.
17th Similarly, it is also said NZP provisions themselves, which claim
an act invalid. A prominent example can then be provision
§ 19 paragraph. 1
which states that "
Invalid is the act whereby the employee waives his rights
". From the perspective of § 20 NZP would this legal act (
waiver of their rights in advance) is considered valid if it is someone who is affected by it
, he pleaded. Concerned by this legal act by the employee
that he can not plead because he is the one who invalidity
This act caused. Despite the rules contained in § 19 para. 1
can therefore conclude that if under the new Labour Code the employee in advance
waives his rights, it will be (always and forever) legal act
valid, because there is no eligible person who could call a relative
invalidity; employee alone caused an invalid and can not therefore rely
her, and there is no one else would this act was
affected. The fact that abandoning the employee in advance of their rights, it
is always a valid legal act that can not be disputed by the petitioners
clear evidence of interference generally respected
legal rules and principles.
18th Given the above, it is apparently very doubtful possibility
application of § 41a of the Civil Code, to which § 18
among other points. The first prerequisite advantage of this provision
fact that there is an invalid legal act, which is considering
said the wording of § 20 itself may seem impossible. The provisions of §
41a OZ while states in paragraph 1 that "
If an invalid legal act requirements of other legal acts, which is
valid, it can be invoked if it is clear from the circumstances that expresses the will of the acting person
"And in paragraph 2 that"
To be a legal act is to hide other legal action, pays the other
act, if it corresponds to the will of the parties and met all its requirements
. The invalidity of such legal act can not be relied
against the party who considered him undisguised.
". Other legal uncertainties then, however, this provision raises again
terms of delegation of the Civil Code, the new Labour Code;
this provision contradicts the concept of delegation and § 4 of the Code
work that you can not use other provisions contained in the Civil Code
if Labour Code expressly states (would it not be considered legal
act as valid, even if he essentials else
valid legal act which expresses the will of the acting person or persons
revised Civil Code, if the provisions in question would
new Labour Code explicitly referred to).
19th According to the petitioners, is a series of provisions that should be according
mandatory provisions govern NZP obligations in labor relations,
inapplicable because it alludes to other mandatory provisions. For example
link - see
§ 326, to the provision of reinsurance (liability) provided in the Civil Code § 544, paragraph
. 1 and 2 and § 545 (a penalty) alludes to § 13 paragraph
. 2 point. g) of the Labour Code, according to which "
Employer may not require or arrange ensure commitment
employment relationship, with the exception of the non-competition clause and deductions from income
employment relationship ". Consideration should perhaps come the argument that the reference to § 544 paragraph.
1 and 2 and § 545 OZ related to the exception set forth in § 13 para. 2 point. g)
however, this argument is unnecessary. Even if it is meant to be, then
arise just another application problems in addition to the fact that
payment of the contractual penalty has different legal consequences according to § 310
paragraph. 3 of the Labour Code and under § 545 OZ, which refers to § 326
. While according to the regulation § 310 paragraph. 3 employee commitment (which
employee breaches, which resultuje penalty)
payment of contractual fines Cease § 545 OZ for a different result, and provides that
Borrower is obliged to fulfill the obligation whose fulfillment ensure
contractual penalty, even after paying
". It must be said and emphasized that the reference to the provision of reinsurance
enshrined in the Civil Code in § 544 paragraph. 1 and 2 and § 545
alludes also to § 13 par. 2 point. f) NZP, according to which "
Employer not the employee for breach of duty arising from his employment relationship
impose monetary sanctions nor is it to ask ...
"; in this context, then they are also unusable eg. the provisions of §
516, paragraph. 3 of the Civil Code and § 572 paragraph. 1 OZ. Due to the above-mentioned principle
enshrined in § 13 par. 2 point. f) NZP then arises
unclear legal situation and about the rights of the employer to require the employee
example. default interest that would otherwise arise under the provisions of §
517 par. 2 CC, which expressly refers NZP again.
20th Legislation such as examples only those provisions NZP
Concerning the organization of nature (dispositive / mandatory) new Code
work and a delegation of the Civil Code does not satisfy the petitioners, therefore, according
assumption of legal certainty forming a democratic state of law, for which the
Czech Republic in Art. 1 of the Constitution declared.
21st Flagrant interference in property rights (Art. 11 of the Charter)
according to the petitioners, enshrining the principle of § 13 para. 2 point. g) NZP, according
Employer may not require or arrange ensure commitment
employment relationship, with the exception of the non-competition clause and deductions from income
employment relationship ". There is no legitimate reason why that should be an employee
(as borrower) is protected in the event that behaves and acts unlawfully.
There is no reason to employee benefits compared to other borrowers
failing to meet their obligations. Absolutely unjustifiable, it is then for
situation where there is interference with the constitutionally guaranteed right
employer (as lender) - into his ownership rights. Provisions
§ 13 paragraph. 2 point. g) represents a significant intervention into the contractual freedom
as such, because the denial of the possibility of taking out a security commitment is
de facto dehonestaci contract. There is no reason why
owned by the employer, who can not arrange ensure
commitment to their borrowers, should be protected less than
property of other persons who do not have this restriction, thereby also || | interference with the constitutionally guaranteed principle of equality.
22nd The petitioners state that interference in the rule of law (Art. 1
paragraph. 1 of the Constitution) and the right to property (art. 11 of the Charter) as well as the rights
business (Art. 26 of the Charter), is also ambiguous treatment
transfer of rights and obligations of labor relations in the event of death of the employer,
who is a natural person, under § 342 paragraph. 1 of the new Code
work. Under this provision, the death of the employer's employment relationship terminates
Except in cases of continued trade according to § 13 para. 1
Trade Act ". It is not clear, however, what these "cases" continue to be a trade
act if § 13 para. 1 of Act no. 455/1991 Coll., On
Trades (Trade Act), provides only case | || only, and that continued trade in the event of the death of a businessman until
time of the trial to discuss heritage. In this context,
problem arises concerning the legal status of the employment relationship until
than authorized persons [§ 13 para. 1 point. a) to d) of the Trade Act]
possibly notify the Licensing Office continued operation
trade, which can take up to three months after the death of the employer.
Legal regime of the new Labour Code does not reflect this fact at all.
Employment relationship does have under § 342 paragraph. 1
disappear from the law, and that the death of the employer, except in cases of continued
trade in accordance with § 13 para. 1 of the Trade Act, but the continuation
trades can "decide" even after several months. Such an arrangement is again
interference with the legal certainty for players, especially
employees because of the provisions of § 342 par. 1 can conclude that the demise of labor relations
death employers can be determined always to
back, and it even for a relatively long period. This question is not Code
work ever dealt with. Moreover, it is unclear what the legal consequences would be for
employment relationship termination probate proceedings, since
resume trade after the inheritance proceedings is governed by § 13 paragraph
. 4 Trade Act, on which, however, does not refer to the Labour Code.
What will follow regarding labor relations after the proceedings
heritage and what the legal situation is, however, no longer governed by NZP;
arises here is the legislation vacuum, which means not only interference with the legal certainty
heirs of the deceased employer-natural person, but especially
significant intervention into the legal security of the employees. In effect, this may
provisions of § 342 paragraph. 1 also appear as inapplicable.
23rd The principle of legal certainty and legal stability
contradicted by the petitioners that the NFA was adopted speedily, without links to related legal norms
(an example is the so-called missing.
Discrimination Act), which ultimately can lead to give
Unstable and unpredictable regulatory environment
labor relations. These principles are contradicted by the fact that NZP
was adopted despite an unfavorable opinion of the Czech Senate and the President of the Republic
no consensus among the governing coalition, but especially without
agreement between the social partners "users" of this standard, ie. without
consensus of employers and employees, respectively. their representatives, ie.
unions. Alarming in this direction then allegedly were the words of Deputy Prime
and Minister of Labour and Social Affairs Zdenek Skromach in the Chamber of Deputies on 21
4. 2006 on the subject of constitutional doubts in the draft
(cit.): "|| |
I consider that fails if to dispel the doubts raised, will
period vacantia legis Labour Code provides space for a possible correction
"as well as words spoken by the same person after the general debate in | || Senate as an expression of the petitioner to the general debate (cit.): "
As regards § 24 treatment approved in the House is not perhaps ideal, and
I think about the matter will need to act. Code efficiency is to
first 1, 2007, there certainly is room for it.
". These words said to support the conclusion that the NZP
failed to build a stable legal regulation of labor relations in the Czech Republic
. The actual claimant Act was therefore evident that a series of provisions
NZP will need immediately after its adoption amend, but nonetheless
advocated its adoption in the present text. The above legislation
so denies the principle of legal certainty, the requirement of stability and predictability
rights, which are essential attributes
law (Art. 1, paragraph. 1 of the Constitution).
24th In another part of the proposal (under point III.) Is challenged by the alleged inconsistency
NZP with Art. 1, Art. 3. 1 of the Charter and Article. 11 paragraph. 1 of the Charter, with the constitutional principle of equality and
criticized interventions property rights.
Contended inequality as employers and trade unions as regards the provisions
§ 321 and 322 NZP
. According to the petitioners, NZP that entrusts the trade unions
supervisory powers in conjunction with other obligations of the employer and
in conjunction with the power of trade unions to demand a binding
instructing employers to eliminate defects in operation on machines and equipment
, of processes, in case of imminent
risk to life or health of employees prohibit further work, as well
prohibit overtime and night work (that would threaten the safety and health of workers
), also based in consequence
unequal status between the employer and the union, which is associated with interference with property rights
employer. Such adjustments unduly favor
unions in collective bargaining, which are to be
these entities of equal status, because this negotiation
concerns and issues and sets of problems over which they exercised trade union
supervision, and trade unions so they can also benefit from this relationship
parallel relationship else. As a result of the delegation of such powers of control
unions and the possibility for employers to issue binding
measures and for employers where the union operates
leads to the establishment of an unequal position in contractual relationships within
collective bargaining; It may also interfere with the property rights
employer. The employer himself has no choice, either in terms
themselves whether to enter into contractual relations with the trade union organizations
or not, nor to the choice of the contractor. Additionally
exercise of the competences conferred upon § 321 and § 322
trade union organizations does not match the principles of impartiality and objectivity. When applying
exclusion clause for bias (when checking in administrative proceedings)
would be at the level of the organization who did not practice this
carry out the activity, as appropriate representatives of trade unions are
all because of their membership of a trade union, which is
"counterparty" employers in collective bargaining biased because
this reason they have "attitude toward things, eventually. parties "and therefore
interest in the outcome of the proceedings. The absence of objective and reasonable grounds for entrusting
inspection authority and lordship of imposing mandatory
instructions and prohibitions on trade union organizations working for the same employer
(With whom they have parallel, this time on an equal footing, entering
private relations) document said the fact that the same control
activity and the ability to impose those measures is also empowered under the exercise of state power
the scope of labor inspectorates according to law no.
251/2005 Coll., on labor inspection. It is therefore a duplication and
"competitive performance" of work. The relevant provisions § 321 and 322
NZP is therefore unconstitutional because the law is arbitrarily, without objective and reasonable
reasons, not due to public interest and the protection of public
values based right of trade unions against employers, without
should respect the principle of proportionality (Decision Ref. Nos. Pl. US 22/92, Collection
resolutions and judgments of the Constitutional court of the CSFR, judgment no. 11, p. 37, and
following extensive and stable, with the already mentioned
corresponding findings of the Constitutional court; further example. ECtHR cases
Abdulaziz, Cabales and Balkandali of. 1985 concerning Lithgow from r. 1986
or engi from r. 1987). The aforementioned powers to trade unions while
go completely beyond the legislation of the European Communities, which in principle
based solely on employees' right "information and consultation".
In the field of occupational safety and health then right
European Communities also restricts only the right of employees to information and consultation
, if necessary. submitting proposals to mitigate the risks
or remove sources of danger and the right to address the institutions
responsible for occupational safety and health, but does not give the employees' representatives
supervisory powers with the possibility of adopting measures for mandatory
25th The petition also contended unequal status of employee representatives,
and trade unions and works councils - provisions
§ 278 paragraph. 1, § 281 paragraph. 1, § 282, paragraph. 2, § 286 paragraph. 2 and § 287
new Labour Code. This applies to both the creation and existence (incl. Termination)
these bodies as well as their scope, which ultimately establishes a
unequal status among employees. Legislation NZP
especially not allow abreast act works council and trade unions
, although, as follows from a comparison with other states
simultaneous existence of works councils and trade unions within a single employer
it is not only possible, but also in other states as well
usual. Employees in the Czech Republic can under § 281
paragraph. 1, first sentence NZP elect council employees only for the employer with whom
no trade unions. The Council of extra staff ceases from the date of closing of the Act
company's collective agreement - § 282 paragraph. 1 point.
C). This adjustment is yet substantiated either by a European law that
require that ceased to exist council, eventually.
other representatives of employees if the employer starts to work at union
organization. Legislation of the European Communities mentions only
obligations of employers to "representatives of employees" without
define what body should in relevant cases, employees
represent. Besides the already mentioned inequality in terms of the creation, existence and extinction
Works Council, is also unjustified inequality
scope of works councils and trade unions. Council staff
ensure only the right to information and consultation in cases specified
NZP, while trade unions have a broader range
permission to information and consultation before council, if necessary.
other employee representatives (cf. § 287). Legislation NZP is, according to the petitioners
inconsistent with the constitutionally guaranteed freedom of coalition (resp.
Coalition negative freedom).
26th Regarding the scope of information and consultation, based apparently
NZP provisions of the legislation contained in the regulations of the European
community, in particular Directive no. 2002/14 / EC; That, however, this area
regulates only generally and mainly arises from the right to information and consultation in the areas
company's financial situation, development
employment and work organization. Among other labor law directives
then goes right to information and consultation in connection with the mass
redundancies, business transfers and health and safety at work
. The specific method and extent of the right to information and consultation in
thus defined framework is again left to national legislation; However,
Should be stressed that the directives governing the obligation to inform and discuss
generally to "employee representatives", without distinguishing between them
any distinction or simply suggested the possibility and the merits of various
range of responsibilities to various employees' representatives (x
union councils). The new Labour Code therefore constitutes unequal status
between employees and prevent those employees who do not want to be unionized
organized and represented by unions, according to his
own will and choice left to the employer (collectively) represent | || just EWC; despite the fact their new Labour Code is mandatory
designates a representative from the trade unions. While the mandatory representation
non-unionized employees may occur even against their will,
even in the situation if the members of this union has been less
employees of the employer than those who are not unionized
27th According to the petitioners, favoring labor unions
compared to other representatives of the employees (who are not unionized)
there is an indirect coercion to membership in trade unions, and therefore
violation of another constitutionally guaranteed right, namely the right to freely
associate enshrined in Art. 27 of the Charter. Freedom of association (ie.
Freedom Coalition) is active not only includes the right to freely associate
(just like eg. A trade union), but also has aspect
opposite, thus right not to join any association or from a
associations (unions) to get off; it was then called.
negative freedom of association. No one therefore can not be directly or indirectly compelled to
make eg. Trade unions brought together. Legislation NZP
therefore constitutes unjustified unequal status of trade unions and employee councils
coalition and violates freedom enshrined in Art. 27 of the Charter and
that also prevents those employees who do not want to be unionized and organized
represented by unions, according to his own will
left to the employer (collectively) represent just
council employees and mandatory (without options) defines them
representatives from trade unions.
28th In the next part, the petitioners alleged attack
discriminate between different trade unions and favoritism of certain
trade unions (Art. 27 paragraph. 2 of the Charter); terms of § 24 paragraph
. 2 of the Labour Code. This rule excluding intervention in Art. 1 and Art. 3
paragraph. 1 of the Charter and of the constitutional ban on preferential treatment of certain
trade unions (Art. 27 paragraph. 2 of the Charter) violates
for the lack of predictability, certainty and integrity and the rule of law in accordance with Article
. 1. 1 of the Constitution. According to § 24 par. 2 NZP
Although the employer must bargain collectively with "all trade union organizations
" that "
Act and act with legal consequences for all employees
together and in concert, unless they agree among themselves and employer otherwise
"but if that 'unions disagree" on
common procedure, the employer may "
Conclude a collective agreement with the trade union
or more trade union organizations, which have the largest number of members
. "This is given by the possibility that in case of disagreement smaller trade
Organization (resp. Smaller trade unions) eg. a proposal
collective agreement, this trade union is excluded from further
collective bargaining and collective agreement was concluded with
majority trade unions. A problem is said to be very
fact that § 24 par. 2 does not "genuine"
principle of representativeness; the text of § 24 par. 2 shows that
NZP is going to be used in the event that the trade unions
agree on the procedure of the first sentence of § 24 para. 2, because according to § 24 para. 2 | || employer has from the outset to deal with only
representative trade union organization (or organizations), but with all unions, which
u treated. Legislation NZP then, however, does not at all
conditions under which an employer may "conclude a collective agreement with the trade union
or more trade unions, which have
largest number of members in the employer", except for the condition that | || unions fail to agree on joint actions. Such an arrangement apparently
May lead to the practical exclusion of "small"
labor unions from collective bargaining and sometimes to the exclusion of most numerous
unions. The above provision indicates, when it
it can be considered that trade unions can not agree on a common
process, nor on what basis can have such a proven fact.
Legal certainty is undermined by the fact that it is not clear when to stop
apply the principle of absolute pluralism and the principle should be applied
representativeness. At the same time NZP does not specify what action is required by employers in the
situation where it finds that the trade unions in
practices are not progressing.
29th The above modification NZP (§ 24 para. 2) is, according to the petitioners
vague causes and consequences of unpredictability, which produces and
does not allow participants to adapt their behavior to her. Such an arrangement apparently
while giving rise to situations where a trade union with the largest number of members
from the outset of collective bargaining
will have no will and desire to act together and in concert with others, numerically weak
trade unions, in order to "disagree with them"
and achieve a collective agreement separately with the employer
procedure according to § 24 par. 2, second sentence. Such negotiations
"big" trade unions and employers on the one hand
was formally in line with the current wording of the Code
work, on the other hand, would not entirely eliminate absolute
principle of pluralism of trade unions, which It seems to be well under the new legal regulation
sort of foundation or starting point for collective bargaining.
§ 24 par. 2, first sentence would become obsolete.
If the legislature had intended to cause such effects, it is then the question of why
failed to provide to the NZP principle of representativeness directly, without a hint of further
30th The very definition of the principle of representativeness in § 24 paragraph
. 2, however, encountered by the petitioners that the requirements of § 24 paragraph
. 2 provided a "representative" trade union (or more
"related" trade unions) to be truly representative
seem. According to the rules contained in § 24 para. 2 is considered representative
trade unions and trade unions have regarded
one or more organizations with a relative majority (which derives from the phrase "
trade union organizations or trade unions, which have the largest number of members in
employer ") and not the least a simple (simple) majority
associated unionized employees (ie the so-called. absolute majority).
It is a very harsh treatment compared with other, not small, but smaller
trade unions. § 24 par. 2 establishes the application of the principle formulated here
possibility of situations where trade union
which only has more members than any other employer in operating
unions (but not the absolute number of members), " eliminate "
of a collective agreement other trade union organizations in
aggregate, may have just the absolute number of members-employees.
In this case we can hardly speak of representativeness.
Then given treatment can lead to practical forcing other trade union organizations, which would
numerically surpassed the most numerous (but not absolute
) trade union, mutual
action against this trade union, which does not seem the fact constitutional.
On the other hand, such as new legislation comes into consideration the situation that
trade union with the largest number of members in the employer will
her conclusion and the result practically "excluded" from collective bargaining
if collective bargaining connects more "numerically smaller
'trade union organizations operating at an employer and they will
together have more members than the numerically strongest trade union organization.
31st The proposal in the next section defines apparently against inequalities
between employers and therefore challenging the provisions
§ 33 paragraph. 3, § 305 paragraph. 1 and § 306 paragraph. 4
Labour Code. The provisions of § 33 para. 3 regulates different position
so. "State" and "non-state / private" employers when concluding
employment for senior employees and related consequences
including the possibility / impossibility of dismissal of the head of its employees
Functions; it constitutes unequal position themselves
senior staff working at these two "types" of employers.
Challenged legislation relating to the formation and termination of employment, if necessary. Only
performance features, as well - as opposed to the current legislation - more
protects employees at the expense of the employer, and do so only illogically and unreasonably
, so-called. the private sector, and deepens unequal position
employers and employees. According to the provisions of § 33 para. 3 (note:
contested wording, ie. Before the coming into force of Law no. 362/2007 Coll. -
Closer cf. Section. XI., Para. 164) may be your job
ratio based appointment only "
Heads of government departments, heads of organizational units
government departments, directors of state enterprises, leading
organizational units of state-owned enterprises, managers of state funds,
if it is in the forefront of their individual body, leading contributory || | organizations, managers of organizational units and contributory organizations
Directors at school legal entity, unless a special legal regulation stipulates otherwise
". Unlike the existing legislation (§ 27 para. 4) when working
relationship could be established for senior employees pursuant to § 27 paragraph
. 5 ZP appointment to any employer will not have this option
all employers, but only so employers.
"State"; It also brings subsequently differentiated legal status
option to terminate the duties of the employee by the employer
(ie. the possibility of appealing employee from office and possibly subsequent
termination of employment). In this case, then there is no possibility of appointing
given only to employees so. Government, but it also applies to employees
employers in the economic sphere (eg.
State enterprises), although they are also associated with "state sphere ".
32nd According to the petitioners, is not given a legitimate reason can and does exist
institute "named executive employee" with him
appeal within the "state" of employers, but not for longer
employers 'private'. The explanatory memorandum to the grounds of NZP
differentiation does not address. In terms of "private" employers are
while employers 'public sector' favored by staff at
so. appointed position can flexibly appeal even in a situation where, although
this employee did not breach its duty to work, but its peak
function does not perform properly if its incorrect procedure or deciding
"leads" employers to poor economic
results. As a result of this adjustment, then - according to the petitioners' -
also an interference in property rights protected by the employer
Art. 11 of the Charter; It may mean limiting its competitiveness.
33rd The petitioners summarize that the legislation NZP totally unjustified
constitutes unequal status between "state" and "private" employers
(favoring "government" of employers) between the workers' state "and
" private "employers (concessional employees 'private'
employers) and between employers and employees in the so-called.
private sector favoring employees. It means even more pronounced and
interference in property rights, "private employers".
34th The petitioners also argue that the new Labour Code also establishes
unequal status between employers where acting
trade union organizations and employers, where trade unions are not working.
The fact that the employer with no trade unions,
means for such an employer is lesser scope of responsibilities "to inform and discuss
". The new Labour Code also creates the employers with whom
no trade unions, less interference with property rights
related control activities of trade unions and their ability to issue
against employers binding instructions and prohibitions. For such an adjustment
There is no objective reason, although it carries a significant interference with the rights
one of "groups" of employers, and those in which it operates
trade union organizations.
35th Differences in status and interference in the property rights of employers
depending on whether they trade organizations operate or not related to the provision
§ 305 paragraph. 1 and § 306 paragraph. 4 of the new Labour Code
. According NZP (§ 305), the employer may issue an internal regulation just in case
that for him, no trade unions, with the exception of only
event that it is in the collective agreement stipulated that the determination of wage or salary rights
and other rights are transferred to the internal regulation.
Compared to current regulations (§ 21 ZP) results in a restriction based on NZP
that could still wage internal regulations or travel
substitutes exist independently of the existence of a collective agreement;
according to the new regulation is a prerequisite delegation modifications of these rights in the internal regulation
arrangements in the collective agreement. The provisions of § 306 paragraph. 4
(current § 82 para. 3) also restricts the employer with whom
a trade union to publish certain "internal" document
/ regulation stipulating that the employer can
issue or change the conditions of employment only with the prior written consent of the trade union organization
36th According to the petitioners, however, no objective reason to legal
treatment prohibited issuing internal regulations for employers whose
a trade union, respectively. divided in this direction employer
those whose work or no trade unions, because it
contravenes the constitutionally guaranteed equality and unduly restricts ownership rights
employers where trade unions operate.
Relation to collective agreements and internal regulation with one employer may
allegedly stated that if the unions want the rights of employees
not govern internal regulation, but a collective agreement, then let it within the framework of collective
negotiation agree, and promote the area or claim
adjusted in the collective agreement. The simultaneous existence of internal regulations and collective agreements
side by side with one employer is not right
European Communities ruled out, and vice versa is customary in many states.
There is no reason why the fact he had a new labor code prohibit,
and thus interfere with the constitutionally guaranteed rights of employers.
37th These provisions of § 305 paragraph. 1 and § 306 para. 4 in
ultimately interfere with the property rights of an employer who does not (unlimited, free
) able to adjust to each wage or salary rights and other rights
labor relations, of which the employee is entitled. To
This requires the consent of the union which so interferes
ownership of this company (Art. 11 of the Charter). For
very problematic then be challenged in the application of adjustments
considered "enterprise-wide" particular salary adjustment for workers' rights in a situation where
collective bargaining is not concluded
collective agreements, and therefore is not allowed Migration
modifications wage conditions to internal regulation, which ultimately extends into
interests of the employees themselves.
38th In the next part, the petitioners attacked in particular the alleged invasion of privacy
and personal freedom; refer to Art. 7, paragraph. 1, Art. 8, paragraph. 1 and Article
. 11 paragraph. 1 of the Charter and Art. 1, paragraph. 1 of the Constitution. provisions
§ 46 and § 61 paragraph. 1
lays down the obligation of the employer to discuss with the trade union organizations
transfer the employee to another job (§ 46) or
notice or immediate termination of employment (§ 61 paragraph. 1), even
employees who are not members of the union.
The petitioners point out that the provisions in question unduly extend into
individual, constitutionally guaranteed rights of individual employees by
that the employer is obliged to discuss the situation with the trade
organizations, and even if if the employee's express wishes.
In these cases, an invasion of privacy and personal freedom
- employees. Even if I was interested in the legal interpretation that the above
provisions are dispositive in nature and that the derogation from the obligations set
NZP is "in favor of the employee" (otherwise, there
again a violation of freedom of contract - Article . 11 paragraph. 1 of the Charter), and therefore
that the employee may agree that it does not want the employer
matters specified in § 46 and § 61 paragraph. 1 with the trade union
discussed, hints for such case on the problem of incompleteness and uncertainty
legislation. Of NZP is not clear when and how the employee in question
express his willingness to avoid discussing
The facts concerning his person
employer with the trade union organizations. The aforementioned uncertainties and consequent legal uncertainty and incompleteness
adjustment might contradict the principle of predictability of the legislation and its
certainty and clarity, which is the guarantee of democratic
concept of the rule of law. It is by design should be emphasized more
problems associated with the aforementioned "dispozitivním"
interpretation of particular provisions of § 61 paragraph. 1, it is unrealistic to receive the employee's request for
did not discuss his testimony or immediate termination of employment || | union body in advance, ie. before the actual termination or
immediate termination of employment. Furthermore, even if this interpretation (based on
dispozitivnosti of the provisions) are transmitted concern that
no violation of his privacy and personal freedom for itself
39th Constitutional Court was delivered also
petition from a group of senators of the Parliament of the Czech Republic to annul part of § 305 paragraph. 1
Act no. 262/2006 Coll., The Labour Code, sounding "
Where no trade unions
"part of § 322 paragraph. 2 point. a) reads "
And in case of imminent danger to life or health of employees
ban further work "and § 322 paragraph. 2 point. b) of this Act. Since both proposals
- both above proposal of a group of deputies, as well as the proposal
group of senators - both are challenging the provisions of the same law (although the proposal
group of MPs challenging several provisions) was (for reasons of efficiency and || | procedural economy) Resolution of the Plenum of the Constitutional court of 9 1. 2007
sp. Nos. Pl. US 83/06, decided to join the two proposals on the Common
40th A group of senators essentially argues as follows.
41st Contested part of
§ 305 paragraph. 1 NZP
violates the principle of equality in rights pursuant to Art. 1 of the Constitution. This principle is
allegedly violated by the employers where a trade union organization
excludes issuing internal regulations that would
adjusted wage or salary or other rights in labor relations
(§ 305, paragraph. 1, first sentence). This constitutes unequal status
employers depending on whether they work or no trade union organization
. Compared to the current legislation there is a limit, because
when it came to labor regulations or on travel expenses, the
may exist alongside collective agreement. According to the petitioners
constitutional principle of equal rights belongs to those fundamental human rights that
constitute the value system of modern democratic societies. It is a legally
philosophical postulate, which is the level of positive
rights guaranteed by the prohibition of discrimination. Equality is not an unchanging category, as
undergoes development which its content, particularly in the area of political rights and social
considerably notes. The petitioners recalled that the Constitutional Court
in many of its decisions (eg. The findings in the cases registered under file no.
Nos. Pl. US 16/93 from 24. 5. 1994 Collection of Decisions, volume 1, judgment no.
25, pp. 189 et seq., promulgated as no. 131/1994 Coll .; sp. Nos. Pl. US 36/93
17th 5th 1994 Collection of decisions, volume 1, No. findings . 24, pp.
175 et seq., promulgated as no. 132/1994 Coll .; sp. Nos. Pl. US 5/95 from 8. 11.
1995, Collection of decisions, volume 4, finding no. 74, pp. 205 et seq.,
promulgated under no. 6/1996 Coll .; sp. Nos. Pl. US 33/96 4. 6. 1997 Collection
decision, volume 8, judgment no. 67, pp. 163 et seq., published as no.
185/1997 Coll.), the content of the constitutional principle of equality.
Aligned in them, with the understanding of equality as expressed by The Court has in its judgment of 8
10th 1992 sp. Nos. Pl. US 22/92 (published in Volume 96/1992
Coll., And published as no. 11, Collection of Decisions of the Constitutional Court
of Czechoslovakia). The Court has in him understood equality as a relative category, which requires
removal of unjustified differences.
Principle of equal rights must be understood such that legal differentiation in the approach to
certain rights may not be a manifestation of arbitrariness, it does not follow, however, it concludes that
everyone must be granted every right. This conclusion follows from
adjustments in Articles 1-4 classified under the general provisions of the Charter.
Article 1 of the Charter, the violation of which is expressly pleaded, can not be interpreted in isolation from the other general
Articles 2-4 of the Charter, but on the contrary, it is necessary to hold
Them as a single unit. Of these general provisions, it is clear that
fundamental protected values listed in Article 3 of the Charter
framers did not conceive as absolute. The same is also reflected in the provisions of Article 4 of the Charter
which directly implies the existence of statutory obligations and
restrictions but also Article 2, paragraph. 3 of the Charter, in which it foresees the possibility
impose certain obligations and restrictions. Likewise, international instruments on human rights
and many decisions of international supervisory bodies
based on the fact that not every unequal treatment of different subjects can be
qualify as a violation of the principle of equality is, as illegal
discrimination against one group of subjects compared to the other. In order to
violation has occurred, it must be subject to certain conditions: eg. The various subjects
which are in the same or a comparable situation are treated
different manner without any objective and reasonable grounds for | || applying a different approach.
42nd The regulations contained in § 305 paragraph. 1 of the new Labour Code creates
according to the petitioners, inequality between employers. As discrimination
employers depending on whether they operate a trade union because
there are no objective and reasonable grounds for different treatment
employers. The key position here is also the principle of proportionality.
It should be said to ask whether it is a bigger problem inequality
employers or employees inequality, whether in terms of arbitrary discrimination or a
measures to compensate for the unequal status
employees, depending on where a trade union. It should also
assess whether new legislation appropriate means, whether it really exists
danger of restricting the rights of trade unions (collective bargaining agreement) with
internal regulations, or whether on the contrary, there is no valid reason for such concerns
(protection of workers), and it is only a lawmaker
attempt to empower unions.
§ 322 paragraph. 2
is affected areas proposed for repeal, since it establishes the right of trade unions to ban
work in case of danger
terms of health and safety, or right to ban (NB .: if
such danger) overtime or work at night. That said
basically means the state administration. Monitoring of compliance with laws and
decision to ban overtime and issuing binding instructions to eliminate defects
is entrusted to trade unions, ie.
Legal persons of private law. The new Labour Code not say enough
specified legal relations and procedures for exercising that authority, ie.
No rules for the performance of such activities, as foreseen in Art. 2
paragraph. 3 of the Constitution. Act no. 552/1991 Coll., On state control, can not be
this type of the control apply because it only applies to
administrations and the state does not control exercised
trade union organizations. Not determined which persons are, respectively. can for union organization
control activities carried out; whether members of trade unions
or its employees or other trade union delegate and what
qualification prerequisites for inspection activities, these persons must comply
, if - as in this case - a professional activity. In
NZP also lack adequate treatment in the event of a collision. If
control activities conducted by the trade unions (including imposing mandatory
work instructions and prohibitions) delegated powers of the state, then it
means that the process of trade unions in accordance with § 322 paragraph. 2 will || | administrative procedure apply (see § 1 para. 1 of Act no. 500/2004 Coll., administrative procedure
, as amended). The adjustment referred to in NZP is not clear,
regarding the procedure for review of the decision if the Board
authority of the labor inspectorate or other special body, which refers
§ 322 paragraph. 3 of the new Labour Code . As for the actual performance of these skills
unions, is also very questionable whether the procedure
trade union bodies will be sufficiently objective and impartial, because
principle stands trade union organization on the part of employees, and yet should
control the activities of the employer in which they operate, and maintain a
him or administrative proceedings. When applying exclusion clauses for
bias (when checking in administrative actions) would be at the level of the organization
apparently virtually no one to this activity
Perform. In light of the foregoing, and lack of compliance with Article. 2 of the Constitution
petitioners propose relevant portion of § 322 paragraph.
2 new Labour Code to cancel.
44th The Constitutional Court sent the petition to open proceedings in accordance with
§ 69 of the Law on the Constitutional Court the parties -
Chamber of Deputies and the Senate of the Parliament of the Czech Republic. Furthermore, even
requested the opinion of the Ministry of Labour and Social Affairs, the Confederation of Industry and Transport
Czech Republic, the Czech-Moravian Confederation of Trade Unions and
Confederation of Employers and Entrepreneurs' Associations of the Czech Republic
(§ 48 para. 2, § 49 paragraph. 1 of Act no. 182/1993 Coll., on the Constitutional court).
Aside from the Ministry of Labour and Social Affairs, which only briefly
stated that identifies with the views set out in the group of Deputies, the other institutions
Constitutional Court very comprehensive statement or opinion
. Counsel for the petitioners deputies
proceedings before the Constitutional Court subsequently asked to send a copy in question
statements and opinions, and were to accommodate him. In a further submission stated that the petitioners
consider it necessary to respond to an opinion
Czech-Moravian Confederation of Trade Unions and sent to the Constitutional Court extensively replica
which, according to its contents to some extent be regarded as supplementing the petition to open
governance and constitutional arguments in the matter
45th In a statement the Chamber of Deputies on the proposal of deputies is
noted that the Labour Code was submitted to the Chamber of Deputies by the government, which
in the explanatory memorandum to the bill stated that the proposal is based on
Czech Constitution and the Charter of Fundamental Rights and freedoms.
While the government assured that in preparing NZP careful not to
organically fit into the legal order of the Czech Republic. It also guaranteed that
NZP is in accordance with European Community law. During the discussions in
Deputies with the draft Labour Code dealt with the constitutional
Committee, which at its 78th meeting on 19 January 2006 adopted Resolution no.
234, which recommends the Chamber of Deputies to the government's proposal Law
approved. When discussing apparently been removed doubts about the constitutionality
control of trade unions regarding health and safety at work
. It was "adopted" a change in the sense that the trade union
authorities are not entitled to intervene directly in the activities of the employer, but have
authorized to submit requests to remove the defects found.
When it comes to unequal status between trade unions and
address the situation where it is not possible to contract because it blocks some
trade union against the wishes of other organizations operating
with the employer opted to Deputies in accordance with
international conventions, in particular the Convention of the International Labour Organisation
no. 98 on the Right to Organise and Collective Bargaining, and
recommended by the International Labour Organisation. 163 (1981)
collective bargaining, the definition of majority representative union.
During consideration of the Bill of Deputies was also
discussed the issue of freedom of contract in relations
which also point proposers of the draft. Deputies have
was aware that one of the fundamental objectives of labor standards is
perform a protective function in relation to the employees. The employment relationship is
mandatory provisions of the Labour Code guaranteed to employees
relatively solid position that it provides adequate
working conditions, limited period of work in relative rest
compensation for damages and protection against unilateral termination of employment .
The new Labour Code in this respect - according to the -
compliant with international standards stemming from international instruments, particularly
relevant conventions of the International Labour Organisation. The explanatory report
Labour Code moreover shows that NZP strengthen the principle of liberalization
freedom of contract in employment relations
while respecting the principle of equal treatment; peremptory norms
employees are guaranteed basic rights and working conditions in other matters
creates a space especially for contracting arrangements.
The adoption of the legislative Chamber of Deputies stated that the proposal
Labour Code was approved by the Chamber of Deputies on 8 February 2006
when the 182 deputies present in the required number by 92 votes for him
voted 104 deputies. The Senate draft Labour Code 29 March 2006
dismissed. Chamber of Deputies on April 21, 2006 draft of the Labour Code approved
again, because of the 178 present vote for it
106 deputies. The president did not sign the labor code.
Chamber of Deputies on 23 May 2006 remained the returned labor code, as
of the 179 present voted for him 107 deputies. This was the Labour Code
after a properly conducted legislative process adopted was signed
appropriate constitutional officials and promulgated in the Collection of Laws as Act No.
. 262/2006 Coll. In this situation, not in the words of the Chamber of Deputies
than to express the opinion that the legislature acted in
belief that the law is in accordance with the constitutional and legal order
46th In a statement to the Chamber of Deputies of the group of Senators is
particular that under the Labor Code is an internal regulation, among other things
intended to modify their employer labor demands
employees that are under employment legislation to modify || | collective agreement. Earlier legal status valid until 31 December 2006
allowed to issue such an internal regulation only employer for whom
not given rise to a trade union. (Otherwise, it would be such
regulation invalid.) An internal regulation can also now issue the employer with whom
trade union organizations do not. Unlike previous legal status
however NZP permits issued an internal regulation and such
employer where trade union organization operates, in case
it on him the collective agreement transferred. However, it still can not give the employer
own internal regulation in a situation where for him
trade union organizations operate, but there is no collective agreement. The fact that this
employer can issue an internal regulation, while
employer, in which trade union organizations do not operate such internal
prescription issue can not be said, however, viewed as unequal status
employers, but it is necessary seen more as a consequence of the strategy and tactics
collective bargaining one or both sides.
The petitioners further argued that § 322 paragraph.
2 is unconstitutional because it enshrines the right of trade unions in particular
prohibit job. In a statement to be true, namely that during
discussing the bill in the Chamber of Deputies was designed
change in the sense that the trade union bodies are not entitled to intervene directly in
employer's activities and that they had permission to submit requests
to rectify the shortcomings noted; Nevertheless, the prevailing opinion was that
with regard to the immediate threat to life or health of employees
should be left to the trade union the right to prohibit further work, with an obligation to review the measures
union body labor inspection authorities on the basis of a request
47th Czech Senate, in its response to the petition
group of MPs said that the draft Labour Code has been addressed already
period of its discussion in the government. September 15, 2005 The Senate decided to hold
8th Senate public hearing on the topic "New regulation of labor law", with
order to hear the arguments of all stakeholders, to focus on
them and prepare as best in discussing the draft Code
work in the Senate bodies. At the public hearing held on 4 October 2005
were invited representatives of the Ministry of Labour and Social Affairs
employers, trade unions, departments of labor law legal
faculties and the judiciary. It was attended by 104 participants and 18
senators. The present application of the Labour Code were presented
very opposing views.
48th By representatives of the employers were to draft Labour Code
expressed reservations about the following lines:
- Preparing the draft Labour Code took place unpredictably because the
paragrafovanému processing acceded without being settled
comments on the draft proposal of NZP, and therefore no consensus
basic approaches to the preparation of the new Labour Code
- Proposed change after 15 years of discussion and preparation does not meet
Expectations fundamental and conceptually new regulation, simple and understandable
which provides only the basic rights and obligations for employers and employees
following the relevant international documents
- Draft Labour Code mostly only amends existing
legislation, in many cases almost literally taken over the original text and
consequently remain mothballed
principles based on different economic and social conditions | ||
- The proposal does not meet the requirement for complex and self-regulation,
it is processed by the delegation in relation to the roughly 130
existing provisions of the Civil Code, which should be at
modifying labor relations used, leading the necessary changes in
adoption of the new civil Code
- Proposed labor code was apparently disguised as a dispositive norm, but
addition to numerous prohibitions of users in a truly dispositive
standards offer many; Labour Code does not take into account that most
employers are small and medium enterprises and if he had to fulfill all the obligations
which it recently established, there will be a big
have problems, they substantially more difficult business
- Did not meet the requirement for a fundamental reconsideration of the status quo
employee representatives, trade unions and works councils.
Current legal situation - what the position of trade unions - is said to have strengthened
regardless of their actual position, particularly with regard to strengthening
contractual principle and the negotiation of other working conditions
in collective agreements. Employers continue to require determination
certain criteria, from which it was clear will of the majority
team of employees for which the employer unions will partner
- The proposal is considered by the experts, including the Legislative Council
government, some provisions unconstitutional.
Question of constitutionality is connected with the role of trade unions; On the question of the representativeness of trade unions, since few
representative trade union is able to prevent the owner of
realization of his property rights. It leaves the union representing
against outsiders, not only in the area of collective bargaining in
information and discuss general issues, but also in matters
individual, in testimony immediate termination of employment,
transfer to another job , even against their will.
Unconstitutional shall be deemed to control permissions unions, particularly as regards the possibility
prohibit overtime and night work.
49th Against it were from the Ministry of Labour and Social Affairs and
trade unions presented arguments suggesting that
- Preparing the draft Labour Code was preceded by analysis of the existing legal
treatment was available to the legislative intention, even though the government unapproved, was
award based on the Government Policy Statement
- During the drafting process was the situation that representatives of employers associations
from the beginning opposed the draft Code
work as a whole, refused to participate in its preparation
demanded the cessation of work activity and showed up just
before proposing the bill to the government and in the course of its discussion in the government.
Submitted yet demonstrated the willingness and in consideration of the Bill in the Government
been numerous comments from employers' associations rejected
- Draft Labour Code clearly relaxes contractual freedom and creates
liberal environment in labor relations than the current Labour Code
- Adjustment related to the Civil Code in terms of the principle of subsidiarity or delegation
not entirely clear views even
Legislative Council of the Government; apparently the majority opinion for the principle of subsidiarity, however, were
opinions for better application of the principle of delegation, who was elected by the promoter
- The issue of greater liberalization proposed modifications had to be based
that certain standards that the state is obliged to guarantee the terms
EU membership, but also the constitutional principles of international conventions etc., must || | be secured in law, as the second possible and widespread in Europe
way in the form of collective agreements is said in our conditions
possible only to the extent of 30%, since only about 30% of employees are "covered" collective
contracts, while in Western Europe it is 80-90% of employees
- Draft Labour Code strengthens the current status of trade unions, their
position remains at the current level
- Reviews the constitutionality of legislation under which the unions act as well as outsiders
not in the opinion of the Government Legislative Council expressed clearly so
that's unconstitutional, it was recommended to consider the revision of relevant provisions
. It is a principle common EU
- Adjustment control permissions and privileges to ban unions in certain cases
to work overtime or at night (§ 321, 322 of the draft Code
work) is contained in the current Labour Code; this adjustment has not yet
terms now alleged unconstitutionality challenged. That adjustment
authorized union has also raised the idea that it is a power which
based inter alia on international conventions on the status of trade unions and
fulfillment of rights that unions are recognized internationally for the protection and representation
50th According to the Senate aforementioned objections and arguments against them
echoed in much the same even when examining the draft Labour Code
(approved by the Chamber of Deputies) in the relevant Senate committees and the full Senate
. Acknowledging that this is a treatment that directly
affects several million people, clearly outweighs the opinion that
bill Deputies forwarded to the overall concept
does not correspond to the basic principles of the rule of law, including the principle
predictability of law and its comprehensibility;
some of its provisions can reasonably be considered unconstitutional. Because it was not a reservation
which, in all its aspects can be addressed by any
amendments in terms of time, in which proposals
laws debated in the Senate, the draft Labour Code in the version passed on by the Chamber
Deputies rejected. From the above, it is quite
clear that an overwhelming Senate's opinion on the problematic provisions
discussed draft Labour Code was in general position identical to that
what is expressed in the proposal to repeal certain provisions of Law no. || | 262/2006 Coll., the Labour Code, submitted by a group of deputies.
51st In a statement from the Senate to the group of Senators on the repeal of certain provisions
Labour Code only refers to statements that have already
Senate sent to the group of Deputies to repeal certain provisions of the Labour Code
52nd Confederation of Industry of the Czech Republic in its opinion
notes that the content of the proposal to repeal the Labor Code in principle
consistent with his views, which applied at the time of preparation and during
debate on this draft law. Given the overall objectionable content
Labour Code considers the proposed listing of its provisions to repeal
minimal. Confederation of Industry
give maximum attention to the preparation of the proposal NZP in the expectation that it will be ready
draft law that will conform to the requirements of the 21st century and fully reflect
economic and social change in our country. In contrast
it approved a bill that does not reflect the societal need fundamentally new
conceptual modification, since its content has been incorporated almost verbatim
existing legislation without significant modernization. The NZP are still preserved
legal principles based on completely different
economic and social conditions of the sixties of the last century.
As regards the preparation of draft NZP, it can be described as the opinion
absolutely substandard, especially because it was a bill
form of a code. Submitter apparently not carried out any analysis or evaluation
existing legislation lacked professional discussion, including
assessing the possibility of using foreign experience. In preparing the draft
full wording NZP has not been used already approved legislative intention
Labour Code, as the comments to him were completely omitted.
Therefore not consensus of the social partners over the basic approaches and concepts
new regulation. In preparation NZP also not been solved
situation where one of the social partners (employers' representatives,
represented on the Council of Economic and Social Agreement of the Czech Republic)
a draft of the Act disagreed, and yet he was such | || proposal also presented and discussed, without achieving social peace
. Such a procedure Confederation of Industry considers it
Unprecedented and the Constitution nonconformist. Confederation of Industry
both during the preparation of the new Labour Code, as well as in various stages of the legislative process
applies requirements for fundamentally new concept,
simple and straightforward legislation that would establish a fundamental rights
and obligations for employers and employees
connection to the legal order of the Czech Republic, the relevant international
documents, enabling a high degree of agreement between the employer and the employee
satisfying the requirements for flexibility in exercising
job. Through his representatives also participated in many
negotiations in legislative bodies of the government, the committees of the Chamber of Deputies and the Senate
Chamber of Deputies of the Czech Republic, including the eighth
public Senate hearings on the topic "New regulation of labor law
( recodification of the Labour Code). " At these meetings we were presented
his dissenting opinions essential content of the draft NZP, including
doubts about the constitutional conformity will this proposal. The basis for these observations were
factual arguments leading experts working in the field of labor
, including members of the Legislative Council. When
final decision on the content of NZP, however, it was only crucial aspects
political, not factual and professional.
53rd Confederation of Industry and Transport is considered as one of the fundamental problems
entire NZP particular, that it failed to effectively fulfill the basic
constitutional principle set out in Art. 2. 4 of the Constitution of the Czech Republic and
Article . 2. 3 of the Charter of fundamental rights and freedoms, that is.
that everyone can do what is not prohibited by law and nobody may be forced
do what the law does, that "what is not forbidden is allowed." This
constitutional principle should be fully reflected in the content of NZP as
proclaimed in the explanatory memorandum to the government draft of this law, and should be strengthened
principle of liberalizing and expanding contractual freedom.
Proclaimed ambitions but NZP does not meet, because in paragraphs 396
is one of the participants in labor relations, ie. The employer
saved about 450 obligations, while the legal status of the other party and
its representatives, trade unions, it is asymmetrically strengthened.
Also touted as the liberalization and expansion of freedom of contract
labor relations are due to the provisions of § 2 para. 1 of the Act
basically unworkable, because the law
declared freedom of contract does not already by directly fixing
for almost half the provisions of prohibition different rule. The provisions of § 2 para. 1
Although the possibility of further divergence from the Labour Code
admitted in cases where "the nature of the provision that since it is not possible to derogate
", but this legislation is to
application practice almost useless because it is vague and incomprehensible. For more constitutionally
maverick Labour Code provisions deemed Confederation of Industry
particular the provisions of § 33 paragraph 3, § 305 paragraph. 1, § 306 paragraph. 4 and § 364
paragraph. 3 of the Labour Code, which constitute unequal status between
employers, and consequently the staff in general, specifically
then depending on whether they work at the employer or no trade union organization
. Are unconstitutional and said the provision defining the scope
trade unions, particularly in terms of their
representativeness, their scope of collective bargaining and
consequently the binding nature of collective agreements for all employees.
Leaving monopolistic trade unions and for unions representing
outsiders not only in collective bargaining and in
information and discuss general issues, but also questions purely
individual (eg. During the testimony, immediate termination of employment
ratio when moving to another job), even against the will outsider
unions can be considered unconstitutional. The Labour Code
therefore undermines the constitutionally guaranteed rights and freedoms, without requiring that the general interest.
Significantly violates the principle of equality between all stakeholders
labor relations. Despite the declared intentions of the original new Labour Code
adjustment largely mandatory in nature and ignores the principle
party autonomy and freedom of contract. In this context
Confederation of Industry of the Czech Republic also emphasizes that the new legislation
unreasonably interferes with a wide range of constitutionally guaranteed fundamental rights and
Freedoms, denies the principle of legal certainty, the requirement of stability and predictability
law and is necessary in accordance with the constitutional guarantee
democratic rule of law, as laid down in Art. 1, paragraph. 1 of the Constitution
54th In the opinion of the Confederation of Employers and Entrepreneurs Unions
Czech Republic (hereinafter "KZPS") is the provisions of § 2 para. 1
Labour Code specifically provide that employees are not able to lead
expert discussion on the legal nature of the various provisions of the Code labor
ie whether the particular provisions may or may not deviate.
Nor the employers can not ask that in normal working process, if it
from the wording of the law clearly dictates, investigated whether a specific provision
nature of mandatory or optional. The matter is complicated by
that the law limits the possibility of waiving some mutually neprovázanými
ways. Among others. this issue further states that it is not possible deviation from
provisions imposing an obligation, which does not apply when it comes to
diversion in favor of the employee. The authors opinion it is not clear who will
in individual cases and specific employees
assess the "benefit of the employee." Furthermore, given that in § 4
Labour Code expressly provides that "the Civil Code
labor relations pursuant to this Act shall apply only if
this Act expressly provides," is the question , how can they be
rights and obligations in labor relations regulated notwithstanding Code
work, and under which legislation in these cases divergent
adjustments proceed if under the civil Code (as a basic
private standards ) it is only in cases where it
Labour Code expressly authorizes, and in no other. It follows the opinion
thing - a departure is not possible and the first sentence of § 2 para. 1
NZP is only the proclamation aiming to be formally charged with the need to build
Labour Code to the principle "what is not forbidden is allowed. "
55th The Labour Code, in the opinion not only brings legal certainty for all participants
labor relations, but rather to an unacceptable extent
interferes. It is an incomprehensibility, vagueness, each unlinked
editing and factual impossibility applications with all the consequences that such
state has (violation of the principle of legal status and recognizability
predictability of legislation. No one apparently will have even thought
proclaimed the possibility to deviate from the rule and will do exactly
just what Labour Code expressly permits, but it was not, in many cases
is unclear, because the law is not only linked with other
finish, but nor himself.
56th KZPS the opinion further states - to § 13 par. 2 point. g)
Labour Code, under which an employer may not require or arrange
secure an obligation in an employment relationship except
competitive clauses of withholdings and labor relations - that this provision
is a gross interference in property rights and the principle of equality. Ensuring
commitment is generally one of the most effective legal instruments
contract law, especially in terms of prevention of breaches.
There is apparently no valid reason why that should not be
between persons who are in an employment relationship, and why should there be any
property protection in favor of the debtor in respect of the commitment.
57th The provisions of § 20 of the Labour Code, the opinion stated that
rule of law is not acceptable to be completely excluded
absolute invalidity of legal acts. Additionally, paragraph 2 of § 19 says that "
invalid legal act can not be to the detriment of employees, if invalidity
caused solely by myself"; invalidity should not be detrimental to anyone
it caused, not just employees.
'58. Opinion KZPS agrees with the arguments of the way adoption of the Code
work. The bill was adopted hastily, without consideration of the arguments
opponents and without links to related legislation; eg. the issue
equal treatment and non-discrimination in employment relations.
Existing comprehensive legislation, which was in line with the requirements of the European Union
, under the relevant directives, was canceled by reference to a nonexistent
legislation. Another example is that
Act introduced a new concept, and "occupational health care facility"; without there being
Continuity in any other related legislation, began
use something that does not exist. While this question related to significant
acts and legal implications in labor relations.
Medical report issued by the "occupational medical device" should be the basis for
obligation to transfer the employee to another job [§ 41 paragraph. 1 point. a), b)
d)], the dismissal notice [§ 52. d)]
while simultaneously other provisions of [§ 103 paragraph. 1 point. a)] prohibits
assign employees work below his health
eligibility. Thus, if the employee by the employer
medical report issued by any competent medical device
which would have resulted from his incapacitation for work previously performed
this assessment would have to respect the employer and the employee no longer existing
not to assign work. At the same time, however, this report
was the basis for the transfer to another job or for dismissal according
§ 52 letter. d) or e) of the Code. How to address this issue, including whether
employee should in this case the right to compensation for wages (on whose side would
was a setback at work), it is a matter of considerable legal uncertainty
59th Opinion KZPS criticizes that another consequence of unbundling with
legal system is newly introduced inability to terminate the employment of
probationary period for the first 14 days of illness. It has to do with the fact that according to the original design
(efficacy has been postponed by one year) had become sick pay
up from 15 the day of incapacity. The state is thus to himself
simply resolve the question of who will pay those first 14 days of sick leave
employee concerned and transferred this obligation on the employer
. In practice, it may be a case where an employee becomes ill
a date agreed as the date of commencement of employment, and without the employer
anything done, the employer is obliged to pay him
first 14 days of his illness; after which the employee may itself
untie immediate employment.
60th According to the opinion KZPS brought efficiency to the Labour Code
considerable legal uncertainty on crucial issues of labor relations, in some cases
inability to act in accordance with it, or
uncertainty about what is not in accordance with law. The above are only
flagrant shortcomings and errors of law new legislation next
many others. Any substantive comments from employers
was apparently interpreted as an effort to limit the protection of workers. NZP
however, contains a number of provisions that are contrary barrier to employment.
61st Opinion also argues - without any guaranteed minimum
specialist knowledge - that the unions may issue some sort of closer
NES and nowhere unadjusted "binding instructions" regarding defects in
operation on machines and equipment, while working practices
and in specified cases may prohibit further work.
Reviewing these arrangements carried out by inspectors work only at the request of the employer and
up to his decision true measure of trade unions. What happens
case, if the inspector finds that "binding instruction" or prohibition
work may not be published, the law does not address.
62nd Opinion attacks and § 24 par. 2 and § 278 et seq.
Labour Code, establishing unequal position
employee representatives (trade unions and works councils, trade unions
each other). Inequality entities and sympathy for one of the forms of representation
employees (resp. To one entity) that guides said NZP whole, so
affects competition with each other employers.
63rd The provisions of § 33 par. 3 of the Labour Code, the opinion states that this provision creates
unjustified unequal position of employers
"state" (or somehow associated with the state) and other employers
( "non-governmental, private") at contracts of employment. While
stand up for themselves as a way of retaining the appointment of an employment relationship
for senior employees (with all related consequences, ie.
Option to appeal from such a place and the possibility of withdrawal), for other employers this way
set aside. He did so retroactively, as
working relationships established prior to the effectiveness of the Labour Code are now considered
employment relationships based contract, with the exception of employment relationships where
Employer state, state enterprises, state funds etc.). This applies to all the consequences
so 1. 1. 2007 there is no longer a possibility of appeal
(and withdrawal) of such a place. Thus, for employment relationships that have been established
appointment, under certain conditions, on which both sides knew
(possibility of appeal), suddenly these conditions have changed and withdraw
such employee is no longer possible; However, this only applies to certain
employer. This is the opinion of quite a flagrant violation
equality of participants of legal relations and legal certainty at all.
The objection that the appeal of the job may be agreed fails because
agreement provides a consistent willingness of both sides and the existing management
employees who were on the job appointed, of course, is not to force
such an agreement. While citing the employment relationship did not end, it
however, that it is the job of top positions, which often manifests
need to be done very flexibly change; even if it is
employee does not violate any duty to his employment, but may
be incorrect and inappropriate measures having an impact on earnings
employers, and hence the security of other employees.
64th Opinion KZPS to § 305 paragraph. 1 and § 306 paragraph. 4 of the Labour Code, dealing with
difference in the position of employers which operates
trade union and employers for which it does not work states that an employer may
issue internal regulations in certain cases
only if there no trade unions or under its authority
. The actual effect of the trade union has not yet
mean it will be into the issues of a collective agreement.
This inequality is justified even if the collective agreement
regulate these issues alongside internal ředpisu p.
65th Opinion KZPS finally comments on the provisions of § 46 and § 61 paragraph
. 1 of the Labour Code, relating to the obligation to negotiate with the trade union organizations
transfer to another job or dismissal or immediate repeal
employment, even for employees "who are not represented by trade unions
". Regardless, however, it is the question of why it is not necessary to discuss
notice or the immediate lifting of the trade union.
For both legal steps are necessary to accurately fulfill the conditions laid
law that are quite complex and strict, otherwise it is not possible to make
. It is therefore not clear what the practical sense prior consultation
mentioned legal acts with the unions.
66th Bohemian-Moravian Confederation of Trade Unions (hereinafter "ČMKOS")
in its very extensive opinion stresses that the proposal of deputies
based on different notions of economic, social and cultural policies than
which stands NZP. First and foremost, this is not the expert legal problem
search NZP accordance with the constitutional order of the Czech Republic, but the problem
policy that goes beyond the competence of the judiciary and it is solvable if
as the substance of the dispute, a constitutional manner
exclusively in the realm of societal policies, free competition of political parties.
CMKOS is convinced that the basic principles, purpose and objectives NZP are organic
accordance with the Constitution and with the Charter of Fundamental Rights and Freedoms and with other relevant standards
Czech law, including the so-called sight.
" Euro-amendment "Art. 1 and 10 of the Constitution.
67th The individual points ČMKOS among others. Presents.
68th The petitioners argue that the principle of legal certainty and stability
"contradicts the fact that it was adopted rapidly, despite an unfavorable opinion
Senate and the President of the Republic, despite criticism and objection of unconstitutionality
certain provisions of the Code and without consensus between the governing coalition and
between the social partners ". This objection is apparently not relevant, because
NZP has adopted a procedure which is defined by the relevant legislation.
Constitution or any other legislation does not impose as a condition
constitutionality or validity of the Act, or "mandatory" consensus within the coalition government
nor between the social partners and within the professional legal
public; quite superior to them in adopting laws constitutionally protected autonomy
lawmakers. It is obvious that a radical critique of NZP
embodied in the proposal is based on the requirement of a purely private nature
regulation of labor relations, which, however, the approval process NZP in the Chamber of Deputies
69th Regarding the alleged "neseznatelnost" or "low quality NZP"
ČMKOS emphasizes that this view is also influenced mainly by political interests
(with the same caveats, according to statements by some members of the Legislative Council
expressed during meetings of the Council of 19 October 2006 on the proposal
government to postpone the NZP and certain related acts
can be found in practically every important legislation).
This conclusion can not categorically speak independently
extensive institutional base interpretation and application of the law, in this case
particular the work of the courts, lawyers and legal theorists.
Almost universally believe that our legislation is imperfect. In the opinion
CMKOS is especially caused a considerable number of legislative changes
implemented through amendments during consideration of bills, passing
discussing a number of related laws, shortening
legislative process, "formal" notice and comment proceeding
not respecting the fundamental nature of substantiated comments, etc.
in this regard, NZP is no exception, but as in other cases, the rate
"shoddiness" and "neseznatelnosti" contained therein standards is a legal norm
disqualify. You can always argue that the concept
labor regulation is constitutionally legitimate or legitimate
. The rule of law is not based on the rule of law, ie.
On governance through law and resolve disputes
70th The proposal states: "The democratic rule of law is based not on
legislation which would encompass all areas of life, but on
legislation which defines only the basic structure within which to implement
free activity" or "There may also violate the principle (Art. 2
paragraph. 3 of the Charter), according to which the individual and his freedom of action has
rule of law always take priority over state power realized by law."
CMKOS maintains, however, that this ideological conclusion
Czech constitutional law is expressed. Individual and his freedom of action is not in a legal state
always take priority over state power realized by law, it
law and the freedom of his actions limits.
71st Liberal normative "everything is allowed, what is forbidden"
is undoubtedly one of the principles of the rule of law.
The basic rule for this normative revision includes Art. 4 of the Charter, which
lays down the conditions under which they can be saved and edited obligations
limit fundamental rights and freedoms, thus always exclusively by law and must always be
investigated their essence and meaning. Restrictions must apply to all cases
fulfilling the stipulated conditions and may not be used for other purposes
than those for which they were enacted. CMKOS stresses that these provisions are deducted
liberal credo, which underlies criticism NZP.
Article. 2. 1 of the Charter states: "The state is founded on democratic values
may not be bound either by an exclusive ideology
nor religion.". Such an ideology is undoubtedly
liberalism that because of this reason can not be the sole criterion
constitutionality of the rule of law. Paradox proposal apparently involves
that although he alleges the unconstitutionality of NZP "political" reasons alone
while trying impermissibly shift and transform the ideological and value
boundaries of the constitutional order of the Czech Republic.
72nd CMKOS believes that the Czech Republic is, like other
EU Member States, the welfare state. Although the Constitution does not recognize
term "welfare state", sociality Czech Republic
undoubtedly arises from the constitutional anchoring of economic, social and cultural rights in
Charter, the International Covenant on Economic, Social and Cultural Rights of the United Nations
, published in the Collection of laws under no. 120/1976 Coll. (Hereinafter
"Covenant") and other international treaties. Amended Art. 10 of the Constitution
speaks generally of international treaties and accords them priority in
case, "if the international treaty provides something other than the law."
Ordinary law can not compete with the International Covenant on
Economic, Social and Cultural Rights and the conventions
derived therefrom. Quoted its preamble: "The Parties
International Covenant on Economic, Social and Cultural Rights recognize that
Under the Universal Declaration of Human Rights can be the ideal of free human beings
free from fear and want to achieve only if
will create the conditions in which everyone can use their
economic, social and cultural rights, as well as their rights
political and civil. ". There is no doubt about normativity said
these formulations, which is an obvious departure from the terse liberalism and towards
State liability (the company) for the fate of individuals and society.
Article 4 of the International Covenant on Economic, Social and Cultural Rights says
promote "the general welfare in a democratic society".
Same time of these formulations and the specific rights it follows state orientation
for action to prevent deepening of social inequality. This puts
this Pact limits of liberal tendency to "minimize" the state. CMKOS
points out that even the Declaration on the progress and development of social
(UN, 1969) confirms these findings. Article 6 of the Declaration requires that each
ensure the right to work and free choice of work "
in accordance with human rights and fundamental freedoms, as well as
principles of equity and social functions of ownership and the establishment of such methods
production which preclude any kind of exploitation
man, ensure all human beings the right to property and created
conditions leading to genuine equality among people. " Social, economic and cultural
law, however, differs from the fundamental rights and freedoms
(liberal democratic) that such subjective rights
immediately binding and enforceable. They can be claimed "only
confines of the laws implementing these provisions" (Art. 41 paragraph. 1
Charter). From this difference develops in the draft tendency to their disqualification as
rights méněcennějších, low intensity
normativity, transforming these rights as mere program folder Constitution.
CMKOS believes that there is no legally relevant
reason to deny these rights normativity and Bond is the fundamental rights and freedoms
because organically mutual support. "All human rights and fundamental freedoms
are indivisible and interdependent, equal attention
and urgent consideration should be given to the promotion and protection of civil,
political, economic, social and cultural rights." (Declaration on | || Right to development, UN 1986). In order to do it,
International Covenant on Economic, Social and Cultural Rights in Art. 5 provides
that nothing in the present Covenant may be interpreted in such a way as implying for any State
, any group or person any right to engage
activity or perform any act aimed at the suppression
any of the rights or some of the freedoms recognized herein or at their limitation
greater extent than the Covenant states.
No restriction upon or derogation from any of the fundamental human rights recognized
or existing in any country in virtue of law, conventions, regulations
or custom shall be admitted on the pretext that the present Covenant does not recognize such rights or that
is recognizes a lesser extent.
73rd CMKOS also points to the famous Art. 1 of the Charter and Art. 1
Universal Declaration of Human Rights, which recognizes: "All human beings are born free and
equal in dignity and rights, are endowed with reason and conscience and should || | together to act in a spirit of brotherhood. ". From a normative text of the Charter,
that these rights exist independently of the legislative state recognition.
Because of Interstate their existence is the state can not interfere, they are not to be exceeded
limit for the Constituent Assembly and not the citizens of them can not abandon
referendum. Legislative technique - Session cogency and
dispozitivnosti (see Art. 2. 3 of the Charter) is thus determined both by the nature
regulated relationships and inalienable fundamental rights and freedoms.
The term "free agreement" is derived from the law of free will equal
parties to the contract, but can not relate to freedom or arbitrariness
contents of the contract. CMKOS believes that the requirement of freedom of contract
coupled with the requirement of autonomy of individual will, therefore, request
maximum limit of mandatory regulation, the proposal raises, collides with
these limits not to be exceeded. Accessing objective inequality
Parties arising from the unequal social situation and its consequences
(particularly "competitive advantage of cheap labor", etc.). An employment contract is
Concrete these limits, ie. Instantiations binding respect
ensuring that the dependence of a given contractual restrictions of freedom (
working time) did not continue in extracurricular sphere, did not intervene in the moral and intellectual autonomy of individuals
etc. It is about that human beings
treated humanely and to various forms of discrimination and grounds and
preferences, undermining the principle of equality, were excluded. CMKOS
stresses that the draft requirement "to remove the now
unfounded significant interference in constitutionally guaranteed rights and freedoms"
from this perspective seems to be a misunderstanding, because in all these cases, it
just about the realization of those rights and freedoms.
The proposal calls for respect for the "principle of reasonable (fair) balance between the requirement
general interest of society with the requirement to protect the fundamental rights
individuals" (p. 4), but in this case it is (just) about it that
protection of the individual has been charged with the general interest, general will
formulated in the Charter. Draft opinion that NZP trying to "baselined on all areas
, employment 'life' and refers to (p. 11) to the Constitutional Court
II. US 192/95 (Collection of Decisions, Volume 4, judgment no. 73), in which
to Art. 2. 4 of the Constitution ( "Everyone can do what is not prohibited by law,
and nobody may be forced do what the law does. ") notes that it
" must apply to the area of labor relations, and even conscious
their specifics, as far as provisions having in any democratic society is essential
and to the extent that it is a safeguard of freedom and simultaneously
safeguard against totalitarizaci company, which has an inherent
effort to baselined if possible, all aspects of life ".These arguments
and confirm the legal opinion of the CMKOS (see above)
nor can they confirm that the said constitutional principle should be interpreted in the spirit
purely liberal. It is about the consequences of addiction associated with
labor processes were not unduly magnified at the expense of freedom, dignity and equality
employees. These are the guiding criteria
interpretation, because the issue of addiction is not enough to rely solely on
74th CMKOS also declares that the classic "free agreement"
in labor relations from the times of economic liberalism was overcome
codification of fundamental rights and freedoms binding for both parties.
In many places of the proposal are regarded as interference contrary to Article.
11 paragraph. 1 of the Charter, ie. The protection of property rights; However, the proposal is silent about
Art. 11 paragraph. 3 of the Charter, which enshrines the important principle of "ownership
committed", ie. The principle of the social function of property. Without limiting
disposition of the property is not labor protection, as well as environmental
environment and other values unthinkable. Private interest interferes with the
general interest which is such as private superior. Today strives
European Union to ensure that the organically combined individual (subjective)
fundamental rights and freedoms with the mass labor conditions. What emerged
in the historical process as an objective necessity defense
work by external forces (government, trade unions) in the individual and general (public) interest
legalized. From this general interest is also derived its independence
Trade Unions (Charter, Art. 27 paragraph. 2) as a barrier to the above
totalitarizačního trend that work bondsman attracted to
nadindividuálním political formations and purposes.
Proposal is based on the expectation that "the new legislation regulating employment relations should
bring in these relationships change consisting of the less intense
need to protect employees and limit interference, or their intensity, in other
Constitution guaranteed rights and the release of contractual freedom. "
It would, however, itself paralyzed intensity of the employees.
It is significant that even in the mid-19th century in most countries
association (coalitions) to protect economic and social interests
offense. In the Czech Republic were canceled
coalition of criminality to law no. 43/1870 r. A. Only in the 20th century
coalition freedom guaranteed in the constitutions of democratic states. "By
Preamble to the Constitution of the International Labour Organisation and again
Philadelphia Declaration proclaimed that freedom of speech and association is a necessary condition for steady progress
... 'and forms one of the fundamental principles on
Which the ILO is founded, the obligation to guarantee freedom of association
(ie. The coalition) became a statutory obligation and for each Member State
75th CMKOS emphasizes that guarantees the coalition freedoms, including the right to form trade unions
enshrined in these international
closer documents legitimizing defensive activity of trade unions, which would
However, without active input into labor relations and
the process of their normative framework was essentially toothless.
These principles are widely recognized and our legal theory: "The coalition
freedom is to some extent part of the law spolčovacího (ie. On association)
generally guaranteed in Art. 20 of the Charter as a political right and ... is so well understood
international legal documents; at the same time, however, the scope of this right
transcends particular by the same fundamental principle of
economic and social order - market economy, as well as guarantees
against state interference in the freedom of individuals and their associations (status
negativus ) includes incorporating both social partners (...
coalition of employers and employees) to lawe process privilege
lay together in collective agreements, legal norms having
binding law (positivus status). "(Pavlicek, iN ., Hřebejk, J.,
Knapp, V., Kostečka, J., Sovák, Z .: The Constitution and the constitutional order of the Czech Republic
. part 2. Rights and Freedoms. Linde Praha, as, Prague 1996 , p. 208
). Legitimacy and nature of defensive trade union activity, which is manifested
especially in collective bargaining and collective agreements,
are the most effective tool for solving the existing conflict of interest between employees
by affiliated trade unions and employers is an integral part of the political
of every democratic state.
76th The petitioners argue that NZP comply with societal needs changes in the labor law
induced change of the situation and needs in society.
CMKOS believes that the debate is not about the conduct of proceedings before the Constitutional Court
. It should be primarily concerned with the level of intensity
contested provisions of any interference with constitutionally guaranteed rights and freedoms
, and accordingly consider whether there are grounds for annulment of the contested provisions
Constitutional Court. According to the CMKOS it is clear that this fundamental premise
, a high degree of intensity of intervention in the contested provisions
constitutionally guaranteed rights and freedoms is not filled.
77th The proposal is also clear that the motivation which led to its submission,
is political, not legal. This is evidenced, among other things. The fact that
petition was filed by members of several right-wing parties, and is not supported
not one member of the leftist parties represented in the Chamber of Deputies
substantial portion of objections to the statutory text is directed against the rights | || protected by a series of ratified international documents and Art. 27 of the Charter
(trade association, collective bargaining) in line with similarly worded
objections, voiced by right-wing parties in the NZP
hearing in the Chamber of Deputies before the election and
repeatedly when discussing a proposal to postpone the NZP just before its entry into
78th The current proposal thus seeks, rather than to decide a legal dispute
about the constitutionality of certain provisions of the NFA to resolve the political dispute
"liberal" or "social" version of NZP. CMKOS believes that the assessment
dispute of this nature Constitutional Court is not, and points out
that his decision may become a serious precedent
negatively affecting the future practice of political parties in
cases where their own political ideas fail to enforce legislation
in political competition in the Parliament. The Constitutional Court should not become
arbiter in such disputes by political parties.
79th CMKOS stresses that the Constitutional Court's mission is to watch over
constitutional order (Art. 83 of the Constitution). The substantive content of legal norms are, and should
continue to be determined solely by positive legislature (Parliament
Czech Republic), in whose competence is credible identification of societal needs
rights. Proceedings before the Constitutional Court should not substitute for substantive debate
where the substantive solutions properly received positive
legislator for some reason does not meet some of the recipients, or their
is considered improper.
80th Opinion ČMKOS continues arguments on individual provisions of the contested
NZP by substantive topics.
81st The petitioners demand the abolition of the provisions of § 2 para. 1 NZP.
They argue in particular that his application to liberalize employment law and does not lead
this adjustment so essentially preserves the existing mandatory character
labor law. Conclude that § 2 para. 1 NZP violates constitutionally guaranteed
principle of freedom of contract and does not meet
arising from the principle of the rule of law. The contested provisions of § 2 para. 1
NZP in the first sentence stipulates that the rights or obligations in labor relations
can be adjusted by way of derogation from this law. This is according
opinion ČMKOS created the basic framework for the application of the norms contained in the NZP,
which is for labor relations carried out a general principle "what is not
forbidden is allowed." Other standards contained in § 2 para. 1
then provides exceptions to this principle, respectively. other conditions for its implementation. CMKOS
so fundamentally coincide with the assertion that the nature of NZP without further
mandatory, since the exceptions laid down by other standards contained in § 2 paragraph
. 1, the other provisions NZP dispositive nature, and admits
so different arrangements of the parties. In addition, according to NZP
contracting parties to put a negotiated such rights and obligations, that does not explicitly
NZP. Although it is true that a number of provisions has
mandatory nature, you can not say that it is mandatory as a whole. Regarding
social needs of contractual freedom in labor relations, CMKOS
repeatedly expressed the view that the substantive content of legal norms
is determined solely by the legislature in the legislative process.
Design cogency and dispozitivnosti provisions NZP so clearly consistent with the notion of the legislature
about the degree of liberalization of the labor law. The argument that the chosen rate
cogency NZP is factually incorrect or socially
unsatisfactory, however, in proceedings before the Constitutional Court is irrelevant.
From the point of view of the constitutionality of the provisions in question and may be considered only whether
Imperative nature of NZP is or is not in accordance with the constitutionally guaranteed
principle of contractual freedom and autonomy of will. The old Labour Code
was built on the principle "what is not allowed is forbidden", ie all its
standards are mandatory standards, except where the law expressly
different arrangements of participants admitted. It was an expression of the principle of protecting the weaker party
employment relationship, as labor legislation that
"historically arisen due to the need to protect the weaker party
working relationship, ie. The employee. I currently can be seen as a protective function
most important and predominant feature of employment "
(Belina, M. et al. Labour law. 1st Edition. Praha: CH Beck, 2001, with
. 4). Thus, if NZP the path of partial liberalization
labor law can hardly expect to traditional labor law principles
completely resign. Labour law is remains
sector on the border between private and public law and must
addition to creating a specific space for the exercise of autonomy of will of the parties
also provide some basic and inalienable right of employees and
guarantee them to preserve the basic standard of social security. From
NZP is no expectation that the parties to the employment relationship will provide
boundless freedom of contract, since it is still true that "
employment contract is a contract between the partners, who are characterized by unequal bargaining power
..." (cf. Belin, above).
82nd In an opinion CMKOS recalls that the Constitutional Court has in the past dealt
compliance cogency old ZP constitutional order, and it
particularly in its judgment. Ref. II. US 192/95, published in the Collection
decision, Volume 4, judgment no. 73, and in its judgment. . I. ÚS 27/96, published in the same
Collection, Volume 5, judgment no. 59. In its judgment. Ref. II.
US 192/95, the Constitutional Court stated that "Article. 2. 3 of the Charter and Article
. 2. 4 of the Constitution shall apply to the area of labor relations,
even conscious of their specifics, as regards the provisions having
any democratic society is essential, and so far it
safeguard freedom and also safeguard against totalitarizaci
company, which has an inherent effort to baselined if possible
all areas of life. ". In its judgment. . I. ÚS 27/96 Constitutional Court, however
stated that "particularly in the area of labor law typical
Imperative legal norms, which (among other things) means that the contracting
freedom can be exercised only in those cases where it
labor regulations allow, "and further that" even in case of equality of both parties
employment relationship before the law, the employer is and will continue
pars potentior, so the protection of employees, this form has
83rd According to the CMKOS provisions of § 2 para. 1 NZP is proposers further
considered unconstitutional for alleged inconsistency with the principles of recognizability
law and the foreseeability of judicial decisions. It is true that the contested
legislation represents a major change, which brings to NZP
labor law. It is the application of the principle of "what is not forbidden is permitted
" as in the previous legislation to implement the principle
opposite. The fact that this principle in labor law will in practice
pose some difficulties of interpretation and application, it follows from the very fact
"newness" of the legislation. It is obvious that
method by which the legislature has chosen to apply the principle "what is not forbidden is permitted
" in employment law, is quite unusual and innovative. Of
general rule that rights and obligations in labor relations
can be adjusted notwithstanding this Act provides for exceptions for
use a combination of "enumerated methods" and the methods by which the dispositive or mandatory
the nature of the individual provisions derives partly from their
amended (setting an explicit prohibition), both from their povahy.Výčtová
method is represented especially the provisions of § 363 NZP for certain enumerated
equivalent methods can also be considered second sentence of § 2.
first Under the second method, modified in the first sentence of § 2 para. 1, can not be
derogate from the provisions expressly permitted or where
inability to deviate from them, due to their nature.
This unusual and rather complicated way of expressing cogency or dispozitivnosti
individual provisions NZP will be combined with the newness of this legal
edits may initially cause difficulties of interpretation. These difficulties, however
- using conventional methods of interpretation - are not insurmountable.
What is the relationship between the first sentence, the last sentence of § 2 para. 1 and § 363
paragraph. 2 NZP, CMKOS believes that these provisions are not mutually
not corresponding, and can be interpreted and applied together. If in fact
first sentence of § 2 para. 1 stipulates that the rights or obligations
labor relations can be adjusted by way of derogation, if it
law expressly prohibits, then it may be inferred that, where the law
expressly prohibited deviation from its wording is not possible.
Provisions of the last sentence of § 2 para. 1 can then be automatically regarded as one of
those anticipates cited wording of the first sentence, since it stipulates that
rights or obligations in labor's relations can not be adjusted
notwithstanding this Act in the cases specified in § 363 paragraph.
second Through this standard shall be calculated provision in § 363 paragraph.
2 considered one of which, with respect to the first sentence of § 2 para.
1 can not deviate. The obvious is the opinion of the CMKOS, the relationship between
first sentence of § 2 para. 1 and § 363 paragraph. 1 NZP. Although, fourth sentence of § 2 paragraph
. 1 stipulates that the deviation from the provisions contained in § 363 paragraph. 1
is possible only in favor of the employee, then you need this norm
considered as lex specialis in relation to the first sentence of § 2 para. 1
treat with the provisions calculated in § 363 paragraph. 1, as required by law
(NB .: deviation from these standards only in favor
employees is justified by the fact that these provisions were
into Czech law transposed to the legislation of the European Communities
lowest acceptable level of protection for employees).
The same applies mutatis mutandis to the standards contained in the third sentence of § 2 para. 1
which provides that the provisions which impose an obligation may be waived only
in favor of the employee.
84th In the opinion of the CMKOS it is also clear that to derive cogency or
dispozitivnosti individual provisions NZP on the basis of their "nature"
(§ 2, first sentence) should be found through the interpretation of these provisions
. CMKOS disagrees with the fact that if it is necessary for the proper interpretation
legal text used different methods, respectively. their combination constitutes a
unconstitutionality of the relevant legal standards. Interpretation of legal norms in the everyday
Legal practice things completely natural and does not infringe the principles
recognizability of law and legal certainty. Overlook in this context can not be
nor the practice of the role of independent courts. CMKOS does not agree with the statement
promoters of the proposal, according to which the principle of recognizability
rights and legal certainty undermined by a final confirmation
correct interpretation will have to take place until the court decision.
Disagrees with the premise that the court decision was needed to confirm the correctness of the interpretation
larger number of provisions NZP, since most of them
be using the commonly used methods of interpretation to interpret and apply
clearly. Judicial way to bridge some
interpretive ambiguity is then quite consistent with the principle of the rule of law.
It is fully exploited for other legislation in force, which also contain
standards which may cause difficulties in interpretation and application.
This applies eg. For OZ, which in its provision of § 2 para. 3
contains the same basic definition of cogency or dispozitivnosti their
provisions of the first sentence of § 2 para. 1 NZP. It is recognized that
"enforcing the principle everything is allowed, what is not prohibited in civil
relations will considerably depend on access to legal application practice and case
" (Fiala, J. et al., Civil Law . 3rd edition. Brno:
Masaryk University, 2002, p. 18). A similar state of affairs exists even when
interpretation of certain provisions of the Commercial Code, eg. The provisions
§ 1. 2, according to which legal relationships covered by this regulation in a particular case
governing trade practice; In this case it is a matter of vital importance
modified through the concept and formulation
which is very difficult to explain clearly and accurately define bezrozporně
. It is again fully respected one way of coping with
possible interpretive difficulties that "in our country, the practice gradually develops
so that the decisive role in the construction of what is and what is not business
ordinance, takes jurisprudence "(Elias, K., Bejček, J. Hain, P., hedgehog,
J., et al. The course of business law. General Information. Competition law.
fourth edition. Prague: CH Beck, 2004 . p. 64).
85th According to the CMKOS be the same argument (as above) then use compared
assertion that the inapplicability of § 2 para. 1 makes use of diction
"... if it comes to a deviation in favor of the employee," without appropriate provisions
was explicitly designated as mandatory or without
wording of the provision itself contained a clear command or prohibition. I
There is a generic term which may be in use correct interpretation
methods taking into account the specific provisions applied and the
each specific situation, in most cases quite clearly
interpret and apply. In the event that its interpretation was in particular
case and in relation to specific provisions of the NZP extensive difficulties
which culminated in the lawsuit and subsequent binding decision,
not consider it something unique and of itself unconstitutional.
86th CMKOS in relation to the question of degree of cogency or dispozitivnosti
individual provisions NZP concludes that a legislature chosen
a completely legitimate solution by applying the principle "what is not forbidden is permitted
" on labor relations, while maintaining the traditional
essence of labor law and fundamental principles, ie. protecting the weaker party
legal relationship. Given that traditional and even contemporary social conditions
remains fully justified principle has ČMKOS for
that peace cogency or dispozitivnosti new labor legislation
can not be considered unconstitutional. Considering the requirement of proportionality is
concludes that to some degree persistent Imperative
new labor legislation complies with the principle of protecting the weaker party
employment relationship without the excess of the permissible and justified
interfere with the principle of contractual freedoms of private law.
CMKOS believes that using common and universally respected
interpretation methods can arrive at a solid degree of legal certainty regarding
whether from certain provisions NZP can and can not deviate. For
case the interpretation of certain provisions amounted application practice
trouble larger scale, is entirely consistent with the constitutional order and the conditions
Czech law also completely normal for help if
Consistent interpretation of the courts, through their decision-making.
87th CMKOS further on the proposal to annul § 4, the words "§ 48, 49" in §
18, § 325 and 326 regarding the "NZP delegation to OZ", it states that the NFA is unlike
old Labour Code is based on the assumption that treatment
some institutions will not contain myself Labour Code, but it will be
rules contained in OZ. Was chosen so. Method delegations whose expression
is that labor relations apply only those provisions of the Civil Code, on which
NZP refers explicitly (§ 4 NZP). To confirm the methods
delegation occurs in the provisions of § 2 para. 1, according to which the participants
labor relations can not deviate from the provisions that refer to the use
OZ. This is so supposedly to institutions covered by the provisions
OZ whose use in industrial relations
legislator enshrines, could be contractually extended by another whose
application to labor relations legislature has not regulated.
88th Simultaneous application of OZ to labor relations poses next
implementation of the constitutional principle "what is not forbidden is allowed" another milestone in
legislation labor law. CMKOS adds that innovative and unconventional
moment presents itself already the possibility to apply for adjustment of labor relations
OZ. Besides objections factual inaccuracies in this
adjustments which are considered ČMKOS terms of proceedings before the Constitutional Court as
moot, petitioners argue that this adjustment is incomprehensible
and inapplicable, and thus contrary to the principles of the rule of law. With that
ČMKOS not coincide, since the method delegation presents a clear and understandable
the framework for the application of OZ in labor relations. The petitioners
its proposal only express subjective displeasure with the chosen method
use OZ in labor relations, respectively. over which provisions
OZ on industrial relations will or will not apply. CMKOS
also does not agree with the statement that the construction of § 4 NZP
in relation to § 2 para. 1 NZP NZP causing utter Imperative.
This provision clearly expressed will of the legislature, which provisions
Mark to be applied to labor relations and which are not.
89th The petitioners also argue that the method chosen
delegation constitutes interference with the legal certainty for the parties that are in labor relations, apply
example. OZ provisions relating to the extinguishment of debt of
because of impossibility of performance or withdrawal. CMKOS
disagrees with the petitioners' interpretation, according to which the parties of the employment contract may
negotiate a withdrawal from the contract pursuant to § 48 OZ, and thus cause
mentioned interference with the legal certainty of participants
employment relationship. If a provision in § 48 para. 1 NZP provides that
employment contract may be terminated only by agreement, termination, dismissal and
during the trial period, it can be used from the wording "can only" draw a contrario
that the rules are mandatory
exhaustive list of legal acts directed at the termination of employment, which is not a contractual arrangement
participants to expand on other legal acts, therefore neither possible
withdrawal. Such an agreement would be invalid.
Analogous example can be found in modifying the contract to rent an apartment decorated §
685 et seq. OZ. The provisions of § 710 and § 711, concerning the termination of the lease
is cogently set out an exhaustive list of legal acts on the basis
may result in termination of tenancy (agreement and termination). It is
clear that "if the contract concluded between the landlord and tenant
contain such a stipulation of termination of tenancy, which could finish with this
contrary, this arrangement shall be null and void" (Holub, M ., et al.
Civil Code. Commentary. volume 2. Praha: Linde Praha, as, 2002
90th According to the CMKOS it is necessary to take into account the nature of the institute
withdrawal from the contract pursuant to § 48 OZ, during which the application of the agreement from the beginning (
ex tunc) cancels the contract and the parties must under the provisions governing unjust enrichment return
transactions which have already been under contract
provided. It is obvious that this mechanism does not apply to employment
respectively. tenancy, whose essence lies in the fact that
consumed continuously and repeatedly through the services provided.
Doing if it were agreed that it will be possible withdrawal effects ex
Nunc, it would be a circumvention of the law, respectively. a disguised legal action, such
. testimony that, having regard to the provisions of § 41a paragraph.
2 OZ was to be regarded as the other act, in this case for dismissal.
According to the CMKOS, no provision § 48 OZ apply to employment contracts
, both based on grammar, as well as the aforementioned
logical interpretation. The account is to be taken as the intention of the legislature, which
apparently did not allow the application of § 48 OZ labor contract, which
apparent both from the wording used in § 48 of NZP, as well as the construction of a single case
allowable withdrawal from employment contracts in § 36 para. 2 NZP.
It should also be based on the principles on which it is built in employment law;
Regards the principle of protecting the weaker party employment relationship, the principle
right to work in accordance with Art. 26 of the Charter, which implies also "guarantee
freely change jobs, so they must also guarantee the right to protection from arbitrary
dismissal and its possible consequences "(Pavlicek, V., Hřebejk,
J., Knapp, V., Kostečka, J., Sovák, Z .: the Constitution and the constitutional order of the Czech Republic
. part 2. Rights and Liberty. Linde Praha, as, Praha 1996, p. 200
) and the principle of work consistent with good manners according to § 13 para. 5
NZP. Agreeing withdrawal from the employment contract would definitely have been in
contrary to all these principles, as well as with ILO Convention.
158 on termination of employment at the initiative of the employer.
91st In another part of the proposal, namely the annulment of § 13 para. 2 point.
G) NZP terms of "securing commitments', as the appellants submit
one example of legal uncertainty and the non-applicability of standards NZP
reference to the application of § 544 paragraph. 1 and 2 and § 545 OZ (contract fine)
specified in § 326 NZP, in relation to § 13 para. 2 point. g) and §
13 paragraph. 2 point. f) NZP. CMKOS considers that the petition [
to repeal § 13 para. 1 point. g) and § 326 NZP, while
repeal § 13 par. 2 point. f) the appellant is not required
] clearly directed against the substantive solution adopted by the legislature
which is not before the Constitutional Court.
92nd CMKOS comes to the conclusion that § 13 para. 2 point. g)
NZP is lex specialis to lex generalis, ie. to § 544 paragraph. 1 and 2 and § 545
OZ. It is not true that the provisions of the Civil Code, in terms of ensuring
commitments to which NZP refers are inapplicable.
Penalty can in fact be arranged to ensure the fulfillment of the employer in favor
employees. Although this option is only formal, employee
difficult to implement, it is clearly at least partially offset
legal status of participants in labor relations. CMKOS reminds
that the old legislation, in terms of securing commitments
testify only in favor of the employer. Employee no hedging Institute for
93rd Furthermore ČMKOS comes to the conclusion that the relationship of § 544 to 545 OZ
to the provisions of § 310 paragraph. 3 NZP is a relationship of lex generalis to the lex specialis.
If the 545 paragraph. 1 CC provides that, unless the agreement on contractual fine
something else borrower is obliged to fulfill the obligation, the fulfillment
ensure contractual penalty, even after paying, then § 310 paragraph. 3
NZP this standard is modified so that employee commitment
payment of the contractual penalty expires. Other arrangements is therefore not possible because the special
standard NZP increases in employee protection. This ČMKOS adds that even
old legislation was similar to what the legislature chose the provision
§ 310 paragraph. 3 NZP [see. § 49 of Act no. 154/1934 Coll., On the working relationship
private officials, business assistants and other employees in similar positions
(Law on Private Employees): "He promised if
contractual employee compensation (conventional the fine) in the event that it would act against
competition clause, the employer may only domáhati agreed
compensation, not even meet competition clauses or other
compensation for damages. "]. Legislation chosen by the legislature in § 310 paragraph.
3 NZP is therefore nothing new or unusual.
94th CMKOS finally comes to the conclusion that the relationship of § 13 para. 2
point. f) NZP to § 310 paragraph. 3 NZP is a relationship of lex generalis to the lex specialis
. § 13 par. 2 point. f) provides: "An employer shall not
employee for breach of duty arising from his employment relationship
impose monetary penalties or away from it
Demand; It does not cover damage for which the employee is responsible. "
Because of legislative economy, this standard lacks a postscript:
"unless otherwise provided by law", which is obviously in its interpretation
be completed. Default interest (§ 517 par. 2 CC), however
employer to employees (and vice versa) may require.
95th Thus, if the petitioners argue at this point neseznatelnost
legal norms and unpredictability of the legal decision ČMKOS only notes
it is a mistake to interpret, not a defect of legal norms.
Correct interpretation of legal norms is one that uses all standard
interpretive methods. It is not bound to an authoritative court ruling, but
is open to any person to whom legal norms.
96th CMKOS adds that the petitioners deemed flagrant interference in the
property rights (protected by Art. 11 of the Charter) § 13 para. 2
point. g) NZP, according to which "an employer may not require or arrange
commitment to ensuring employment relationship with the exception
competitive clauses and deductions from income from employment relationship";
this adjustment shall also be considered inconsistent with the constitutionally enshrined principle of equality and
also see it as a significant interference with the freedom of contract as such. According
CMKOS is limiting collateral obligations expression to protect the economically weaker
Party - employees and therefore is consistent with the Constitution (cf..
Finding sp.. I. ÚS 27/96, Collection of Decisions, Volume 5, judgment no. 59).
Exclusion of other means to ensure debt than contractual employee
fine or payroll deductions (§ 327 NZP) in any case does not protect
infringement employees, but the proper protection of workers
to avoid imposing disproportionate burdens. Sam agreement on deductions from wages
not only fulfills the function of ensuring commitment
employee to the employer, but also reimburse function, so it is the most effective way of ensuring
97th ČMKOS the objection of inequality between the employer (who can not
ensure his claim should be mortgaged) and other lenders, for example.
Bank (who have this possibility), states that such "equality" might be inequality
because they are different cases be treated equally.
The relationship between employer and employee is much more intimate than
between the bank and its client, because employment usually
alimentary function. Therefore, the employee is much less resistant to pressure extralegálnímu
employers, and to prevent it precedes law banning conduct
which could be easily abused.
98th Regarding other petitioners 'assertion on inequality
employer (as lender) against the property of others,
inasmuch that "employers can not arrange
securing the obligations of its debtors' ČMKOS notes that allegations
petitioners is not coherent. Generally, it must be regarded as a violation of the principle of equality
not only unjustified disadvantage of some
at the expense of others, but also unjustified advantage to the detriment of others.
Where they consider petitioners therefore limiting collateral obligations
employee against an employer for breach of the principle of equality (
disadvantage compared to other creditors), for violation of the no longer considered an advantage
employers to the other owners in terms of direct protection
employer's assets. Under § 249 paragraph. 1 NZP is
employee must act so as to avoid damage to
health, property or unjust enrichment.
Employee is also obliged to inform senior management employee for damage that
threatened and under § 249 paragraph. 2 NZP is obliged employee
intervene if urgently needed his intervention to avert imminent damage
employers. Under § 251 paragraph. 1
NZP employer may require an employee who deliberately did not warn senior management employee
imminent harm to the employer or
intervene against imminent harm, although this would prevent imminent damage
to be part of the compensation, which was caused
employers, to the extent reasonable in the circumstances,
if it is not possible to replace otherwise. Under § 415 CC every
must act so as to avoid damage to health,
property, nature and the environment. Under § 417 paragraph.
1 OZ is the one who runs a shame obliged to intervene to prevent its occurrence
manner proportionate to the circumstances threat. While OZ
lays down the general obligation of individuals and legal entities
avert violations of legal obligations that the basis of experience may result in
damage or emergence of unjust enrichment (ie. General civil
Prevention) strengthens NZP position as an employer
owner by establishing a special "signaling" obligation of all its employees
a special obligation to avert
has a specific threat of damage or unjust enrichment. In addition, the employer may require the employee
conclusion of the responsibility for the deficit
assigned values (§ 252 et seq. NZP), under which transmits
responsibility for the protection of their assets per employee, without surrendering himself || | disposition of his property. Civil law, no such agreement
"material responsibility" as a special kind of liability for damage
99th Restrictions secure obligations to the employer and the employee
advantage of the employer as owner of the CMKOS therefore deems reasonable
and in particular in accordance with the general principle of proportionality, which
can also be considered part of the constitutionally conformal principles (Judgment. Ref. | || Pl. US 38/04, Collection of decisions, volume 41, judgment h. 125, promulgated under
no. 409/2006 Coll., and decision Ref. Nos. Pl. US 3/02, Collection of decisions, volume
27, judgment no. 105, promulgated under no. 405/2002 Coll.).
100th The petitioners also suggested - as the CMKOS - repeal provisions of § 321, paragraph
. 2, § 321, paragraph. 3, § 321 paragraph. 4 and 322 NZP - "control
power to trade unions". Draft challenging the provisions of § 321 and 322 NZP
(power control trade unions, the possibility of requiring mandatory instruction
eliminate defects in operation and in case of imminent danger to life and health
prohibit the continuation of the work including the ability to disable the job
overtime and night, which would threaten the safety and health of employees
) a provision establishing an unequal position
employers and trade unions associated with interference in the property rights
employer. CMKOS points out that the control
rights of trade union organizations (check compliance with regulations
control and occupational safety and health), one of the traditional activities carried
unions as representatives of employees responding to the massive influence of the prevailing
on a working operation, which have
employers. This "inequality" is therefore inherently exception of inequality
dominant (social), subject to overcoming or coping
unions in the past and were born. CMKOS believes that the right to control
trade union bodies, ie. § 321 and 322 NZP not qualify as performance
government. It is a performance trade union rights
given them a special law (NZP) that trade unions have as
employee representatives. Control in these areas as the performance of the state administration
exercised in the State competent administrative authorities, namely
State Labour Inspection Office and regional labor inspectorates by Act no.
251/2005 Coll., On labor inspection, as amended regulations in the mining authorities
State mining Authority (Czech mining Authority and district mining authorities
) pursuant to the Act no. 61/1988 Coll., on mining activities,
explosives and the State mining administration, as amended ,
public health authorities (chief hygienist of the Czech Republic and
regional office of regional health authorities) by Act no.
258/2000 Coll., on protection of public health and amending some
related laws, as amended, and authorities
supervision in the field of defense, nuclear safety, transport, communications and
Ministry of Interior. Before the adoption of the law on labor inspection
existed for all these checks concise summary called "special state supervision over occupational safety
" and consistently differed control
trade union bodies on the one hand and state professional supervision of safety at work | || other part (Belina, M. et al. Labour law. 1st edition. Prague: C.
H. Beck, 2001, p. 279). The fact that the Labour Inspection Act
introduced the concept of "control" for labor inspection authorities (merged
control activities previously carried out by labor offices by Act no. 1/1991 Coll.
Employment with the performance of state supervision of safety
work by Act no. 174/1968 Coll., On state professional supervision of work safety
), meant that the seemingly shifted main focus of activity
these bodies of supervision exercised by the state to control. This
purely semantic interpretation, but apparently not accurate.
Control exercised all of the above listed authorities in the country's traditional way of state supervision over
occupational safety and health, which the state can not in any case
exempt, as would have resigned from their constitutional obligations set
in Art. 28 of the Charter (secure employees' rights to fair working conditions
) and Art. 31 of the Charter (to ensure every citizen the right to health protection
), and can not be confused with control by
trade union organizations. That, in the opinion CMKOS indicates that this is not a
competitive performance of control activities to the authorities of labor inspection, respectively.
All authorities exercising control in the area of occupational safety and health at work
. This is only the realization of the rights of representatives
employees that relates to the fundamental mission of the trade unions as
expressed in Article. 27 paragraph. 2 of the Charter - the protection of economic and social
interests of their members, or all employees.
One hundred and first The fundamental constitutional starting point for assessing the constitutionality of these provisions must be
in the opinion of the CMKOS Article. 3. 1 point. d)
Additional Protocol to the European Social Charter (promulgated under no.
15/2000 Coll. ms) according to which the Parties undertake to adopt
or encourage measures enabling workers or their representatives
in accordance with national legislation and practice, to contribute:
to the determination and improvement of working conditions, work organization and
working environment; to protect the health and safety within the undertaking;
to the organization of social and socio-cultural services and facilities
enterprise; the supervision of the observance of regulations on these matters.
102nd In the opinion of the CMKOS is monitoring compliance with labor
legislation, internal regulations and obligations stemming from collective agreements
(§ 321 NZP) based on the fact that unions are
established to defend economic and social interests of employees.
In this sense, the freedom guaranteed by ILO Convention no. 87 and Charter.
Manifestation of this freedom is also the supervision of the observance
labor legislation, internal regulations and obligations stemming from collective agreements
. The purpose of editing control rights of trade unions in
NZP is to establish minimum obligations of employers towards trade
organizations in this field so that they can fulfill their mission.
This type of control is in no way control, as understood by Act no.
251/2005 Coll., On labor inspection, as amended, and Act No.
. 500/2004 Coll., Administrative Code, as amended,
because it does not result in decisions affecting the rights and obligations
employer, the employer is obliged to respect. Even
currently on recommendations to remedy any deficiencies
. The law only regulates the requirement for effective collaboration
employer. In this sense, the exercise of that control and prevention
is also directed by the employer; This type of control is not merely a
directed only against the employer, but it applies to employees.
103rd In the opinion of CMKOS also can not agree with the view that editing
control rights of trade union organizations in the field of labor relations
ultimately unjustifiably favors unions at
collective bargaining, and distorts the equal status of employers and
trade Unions in contractual relations and thus extends into
ownership rights of the employer. Conversely, application control permissions
trade unions contributes to creating a balance between
stronger employer and employee weaker (the protection of)
at work, because their existence does not constitute unconstitutional. Here
be relied already cited Article. 3. 1 point. d)
Additional Protocol to the European Social Charter.
104th ČMKOS the argument ratione legis notes that § 321
NZP is reproduced in § 22 of the Labour Code no. 65/1965 Coll. and it follows a similar §
20 of Presidential Decree no. 104/1945 Coll., on race and
Works Councils that a similar right of trade unions can be traced back before
war in § 3 para. 1 point. a) and b) of the Act no. 330/1921 Coll., on race
committees, as amended by Act 181/1934 Coll., and finally, that this issue
there is extensive case law in Bohuslavová ECR
Supreme administrative court of the first Czechoslovak Republic.
Can therefore be summarized that the right of trade unions, words § 20 paragraph 3 of the Decree of the President of the Republic
no. 104/1945 Coll., "He makes sure that economic activity
plant (the company) is performed so while maintaining
considerations of economic benefit and the applicable rules of management were
fairly satisfied economic, social, health and cultural interests of employees
plant (the company), "was part of our legislation
since 1945. Basis regulatory control of the unions, however, is included
already in Act no. 330/1921 Coll., on the factory committees, where the provision
§ 3, inter alia, stated "factory committees are called to defend and encourage
economic, social and cultural interests of employees, especially
have dozírati on maintaining wage and labor agreements and orders,
co-operate in arranging work schedules, have been fixed
collective agreement negotiated between trade unions and
He looks as appropriate, one member of the race committee for this purpose
attended by a representative of the race in wage and salary schedules
led the race. ". Based on the above ČMKOS concludes that the right to control
union of compliance with labor and safety regulations contained
our legal system since 1921. It ignores the law no. 144/1920
Coll., On race and Ranger councils in mining, which also contained
similar rights, but was accepted only with jurisdiction for mining plants.
105th According to the CMKOS petitioners also demand the abolition of § 322
NZP governing control over compliance with laws on safety and
health at work. This provision (identical legislation contained
§ 136 of the old Labour Code), but not with Article 2 of the Constitution
conflict. Legislation trade controls, derives from the rights
governed by the Charter and international conventions binding and can not be
therefore considered discriminatory and in conflict with Art. 1 and Art. 3. 1
Charter. That is why throughout the term of the old Labour Code and
especially in the last 15 years of a democratic state not
constitutionality of this provision, public authorities questioned. CMKOS
are based on the fact that the legislature in creating NZP respect the commitments that
for the Czech Republic from the ILO Convention no. 155 on the safety and health of workers and
working environment (published under no. 20/1989
Sb.). Its Article 19 point. e) provides that "
need to take action at the enterprise level under which workers or their representatives
, and if necessary. their representative organizations in the enterprise, will
entitled under national law and practice
reopened all aspects of security and health-related
their work and the employer will be with them to discuss these things. "
The provisions of § 322 NZP then performing a constitutional article quoted
ILO Convention no. 155. Control by the unions there
quickest and most efficient. tool As follows from the explanatory memorandum to
NZP also from a number of theoretical works, there is no doubt that part of the fifth
Labour Code (occupational safety and health)
directed to a single goal - to ensure the constitutional right of a citizen performing a
work on health (Art. 31 of the Charter). With regard to risk prevention, respectively.
Health of workers, and reminds CMKOS Council Directive.
89/391 / EEC of 12 June 1989 on the introduction of measures to improve
safety and health of workers at work. According to Article 11, paragraph
. 3 "Employees' representatives for the safety and health at work
have the right to ask the employer to take appropriate
measures and to submit him to that end to mitigate hazards for || | servant or to remove sources of danger. "and in paragraph 6
" or their representatives are entitled to recourse in accordance with
national legislation or practice on the competent bodies
for occupational safety and health, If the employer is deemed
measures taken and funds provided insufficient to ensure
Occupational safety and health. ".
106th According to the CMKOS believes it is in this case a situation where
Community legislation has left solutions to specific issues as they have in
Where a risk or hazard sources proceed representatives
employee against the employer, within the competence of a Member State. It is
opinion that § 322 NZP is a legitimate and constitutionally conforming solution
this issue based on the cited article of Council Directive no.
89/391 / EEC. "Who else but trade unions as representatives of employees who
work for the employer immediately and are knowledgeable of laws and other regulations
falling on the activity of the employer, should
behalf of employees, to propose measures to mitigate the risks ...".
It should be emphasized that trade unions are independent of the state, so to
employers, which results from the ILO Convention no. 87 from the Charter.
This ensures that the decision-union OSH inspectors will nepodjaté.
I still act regulates the appeal against the decision of the trade union
107th CMKOS emphasizes that the right to union control over security and
occupational health law is also historic, as it was before
§ 136 of the Labor Code no. 65/1965 Coll. contained in § 14 and 15 of Law no.
65/1961 Coll., on occupational safety and health, and even before that
in § 5 of the Law no. 67/1951 Coll., on safety at work (note . - correct: o
safety at work). The provisions of the First Republic of Czechoslovakia
similar right was contained in § 2 para. 1 of Act no. 144/1920 Coll., On
racing and Ranger councils in mining, and in § 3 para. 1 point. e)
Act no. 330/1921 Coll., on the factory committees. The oldest
provision specifically dealing with the union control over health
employees to § 139 para. 2 of Law no. 1/1888 of. Of. On
workers accident insurance, as amended, applicable
the date of first The first in 1944, according to which "members of the race committee or the race
council are obligated to cooperate to prevent accidents." (Sic - Ed. Ed.))
108th CMKOS disagrees with the petitioners that the information obtained during
control uses a trade union in collective bargaining and thus disturbs one
"balance" contractors of collective bargaining.
It is a matter solely for the prevention of risks to which the inspection activities aimed
union and not an illegal gathering information about problems
employer. The provisions of § 322 NZP is factually closely connected with all parts
fifth NZP particular its § 101 and 102 on the prevention of risks. According to Article
. 11 of that Directive no. 89/391 / EEC of 12 June 1989
on the introduction of measures to encourage improvements in the safety and health at work
workers' representatives in the field of occupational safety and health have
right to ask the employer to take appropriate measures and to submit
him to that end to mitigate hazards for workers
or to remove sources of danger. ". CMKOS considering
long experience of trade unions in this area highlights the extraordinary
social usefulness and importance of this trade union control activities
consequences of which in the past has contributed significantly to the protection
health and saving the lives of many employees .
Union control activity is not competitive to the "state" control (does not sanction
rights); labor inspectorates on the other hand, can not exercise such control
systematic, direct and to the same extent as
unions that operate "inside" a thorough knowledge
situation of the employer's workplaces, which is extremely urgent especially
in case of imminent danger to life or health
employees. In particular by helping to control the fulfillment
constitutionally guaranteed right to health protection at work (see Art. 29 and 31 of the Charter).
109s. CMKOS denies that the rules contained in § 321 and 322
does not respect the principle of proportionality. As NZP and the old labor code stored
employee statutory obligation in § 249 paragraph. 1 and 2 and § 251 NZP, respectively.
in § 171 paragraph. 1 and 2 and § 175 of the old Labour Code, employers
attention to potential damage to its property and the obligation to intervene to avert a potential threat
. As a result of breach of those obligations has
employer is entitled to require employees to contribute to the payment
Damage to the extent appropriate in the circumstances, if it is not possible to pay
otherwise. Asset protection is an employer as compared to the general
amendment contained in OZ considerably strengthened. It follows that he
NZP is not yet consistent in terms of "weight" of the protected interests. While
tangible assets of the employer is protected and advisory duties zakročovací
employee (whose failure could lead to liability for damages)
life and health of employees, which are undoubtedly values higher than
material goods, the same way if the deletion of the provision in question
text of the Act were not protected.
110th The application for annulment of § 278 paragraph. 1, § 281 paragraph. 1, § 282, paragraph
. 2, § 286 paragraph. 2 and § 287 NZP, concerning alleged irregularities in
status of employee representatives, CMKOS is based on the fact that
within the European Union for the solution of this question purely national
adjustments. European law relationship with trade unions and works councils
(in Czech labor law Works Councils), or other representatives
employees are not. Directive of the European Parliament and the Council.
2002/14 / EC of 11 March 2002 establishing a general framework for
informing and consulting employees in the European Community
nor the Council Directive no. 94 / 45 / EC of 22 September 1994
establishment of a European Works Council or a procedure
information and consultation of employees in undertakings
operating in the Community and the groups of undertakings for the Community
, do not specify which entity should in these matters
employees represent. Employee representatives in both
directives labeled as "employees' representatives provided for by national
law or practice." For European legislation
however that, for the purposes of informing and consulting employees in some way represented
have to be, and it is therefore essential that u
employers where no trade unions, worked another
collective body representing employees in these matters. If
regards the scope of information and consultation, based on NZP legislation
contained in the regulations of the European Communities, in particular the aforementioned
Directive no. 2002/14 / EC. Among other directives, then it follows
right to information and consultation in connection with collective redundancies, transfers of undertakings
and occupational safety and health.
Specific manner and scope of the right to information and consultation within the framework thus defined
again is left to national legislation. European law and fully respects
national specificities and needs to justify and
different approach to institutional security rights to information and consultation
in individual Member States. The Czech legal order the institute
elected employee representatives entered in 2000
amendment to the Labour Code by Act no. 155/2000 Coll., Which was the Czech labor law
harmonized with European law. The reason for the introduction of these new types
employee representatives was not so much a social demand for such
legislation, such as new provisions of the right of employees to information and consultation
and secure employee access to such information, which responded in particular
requirements of the directives of EC
social dialogue (collective redundancies, transfer of employer and
European Works Council) and the European social Charter.
111th According to the CMKOS objections mentioned in the proposal would have been eligible for
provided qualitative (legally and substantively) equality between unions and councils
employees; But there is a normative texts can not be inferred.
Representative Works Council differs from that of the coalition
freedom entrusts the trade unions; Thus the inequality does not NZP, that it only accepts
. It is therefore a misunderstanding of the notion that this inequality "is
to indirect coercion to membership of trade unions".
Normatively the representativeness of trade union covers the whole complex world
work, which is beyond the scope of works councils.
Council employees and employee representatives in the field of occupational safety and health
employees' representatives are sui generis. This is not about the other associations within the meaning of Article
. 27 paragraph. 3 of the Charter because they are not based on a member
principle, as is the case with trade unions and
Employers. Employees through these representatives freely
not sit on the protection of their economic and social interests.
Right to associate freely with others for the protection of their economic and social interests
enshrined in Art. 27 of the Charter as outlined by Act no.
83/1990 Coll., On association of citizens, as amended, which | || closely regulates the right of citizens to form various associations. According to § 9a of this Act
arise and unions. The Law on Association of Citizens with
however, does not apply when an employee councils and representatives for
occupational safety and health; those arising under the provisions of §
281 to 285 of the Labour Code, not on the basis of freedom of association
employees, but the choice of employees. It is therefore an elected representative
employees, who represent only a platform for the realization of their rights
to information and consultation and act as a mediator between employer and employees
to facilitate information and consultation
in the company. Council staff and representatives for occupational safety and health at work
lack legal personality. It follows that
establishment EWCs respectively. Representatives for the safety and
health at work, in no case realization coalition
rights, as is the case with the establishment of trade unions. Also international
adjustment (ILO Convention no. 87), this fundamental difference respects because
under his protection, and includes only the "organization of workers or employers
which aims to promote and defend the interests of workers
or employers "(Art. 10 of the Convention cited).
Status councils and employee representatives for OSH is therefore the position of the trade union organization
necessarily different, and it inherently. If you should
council staff and representatives for the implementation of OSH rights coalition, it would be necessary to first define
coalition, which is authorized to make a choice
council employees or representatives for occupational health and safety as their authority. This coalition
certainly not and can not be a team of employees;
It is not anyone else who would be empowered to establish telephone advice
employees or representatives for OHS.
112th If you should accept the petitioners' argument, it would
by CMKOS necessary for the coalition (association) recognize and employees
employer. In this case, however, it was a violation of freedom of association
, as an employee, an employer arises
on other legal action than signing up for membership in the coalition
(will join the coalition), on based
will conclude the employment relationship. CMKOS insists that freedom of every
associate with others for the protection of their economic and social interests
guaranteed by Art. 27 of the Charter is not in any way affect the NZP. True said
neither the petitioners' claim that the legislation NZP not allow
next to each act works council and trade unions. According NZP
together all representatives of employees may, under certain conditions
coexist. As follows from § 282 paragraph. 1 and 2 NZP, if that
u employer will act works council or representative
OSH and subsequently this company will also grow
trade union organizations, it will not mean immediate
termination of the elected representatives of the employees. All the representatives of the employees will work side by side, until
elected employee representatives to the expiry of their term, and
employer will have to fulfill to all the obligations imposed on it by
law, unless they agree among themselves and with the employer otherwise . This
coexistence trade unions and elected staff representatives
may end before the expiry of their term of office, if u will
employer concluded collective agreement or if
number of members of the council of employees dropped to less than three.
Conclusion of a collective agreement is reasonable and objective condition extinction (NB .: function)
elected employee representatives. If in fact will be closed
collective agreement testifies to the fact that the trade union has gained
sufficient authority. It would then be redundant with the employer to act
two kinds of employee representatives, which could in part
activities to duplicate. Additionally, ILO Convention no. 135 Art. 5 requires "
order to ensure that the elected representatives will not be used to weaken the position
participating unions or their representatives." Such abuse would
Easily happen in case if the two kinds of employee representatives
could coexist with absolutely no restrictions. In addition, the fact that
experience a new type of employee representatives during the past years does not significantly embraced the
. There is still a large group of employers
which no trade unions, and yet the number of works councils, or
. Representatives on OSH practically negligible.
113th CMKOS further states that when it comes to a different range of permissions that NZP
admits trade union and elected employee representatives, is
important to realize that the trade union is opposed to council
employees, eventually. Representative for OHS, an entity that was created on the basis
guaranteed by the Charter of Freedom coalition. Trade unions and
have a special position by virtue of their very nature and
purpose for which they were based. With their special status
related to the special privileges given to them as legal representatives of employees
guaranteed legal order (in particular ILO conventions).
To be able to exercise those rights (or duty) to fulfill properly belongs to them in addition
some additional information (see § 287), which elected representatives of the employees
need for their activities. Moreover, as already mentioned, is the normatively
union representativeness refers to the entire complex world
work, which is beyond the scope of works councils. Trade unions are not simply
mediator between employer and employees in the field of information and consultation
. A union is endowed with its own legal personality and may
act in labor relations
behalf of all employees to act for them and defend their interests.
Pivotal role of trade unions then lies in collective bargaining when as representatives
team of employees negotiated with the employer
collective agreement that governs the bulk conditions of work, especially
question of remuneration. Therefore, unions are given in § 287, plus some additional
authorization (eg. The right to information on wage developments, right
discuss the economic situation of the employer, the remuneration system and some others).
Workers' participation in corporate management, or workplace democracy is
integral part of a democratic state and can not be viewed as a violation of property rights
employer. Employees have unquestionably
right to share the good economic results of the company to
which mainly contributed their work. This idea is an integral part of the concept called
. Corporate social responsibility (CSR), thus
corporate social responsibility, according to which business corporations
obligation to take into consideration all stakeholders (hence the
employee) in all aspects of their business operations.
Comes to ethical business conduct, which does not reflect only profit but also
contributes to improving the quality of life for employees and their families.
CSR concept has long been one of the main topics of the European Union and all its members
. CMKOS emphasizes that the petitioners' claim that
advantage over other trade unions representatives of employees who are not unionized
, there is an indirect coercion to membership in trade unions
is not supported by any relevant evidence, and not based
nor is any provision in NZP. Providing better working conditions
organized unionized than unionized employees
unorganized, for which allegedly occurs (or. Could occur)
to indirect coercion to membership of trade unions and
contrary to freedom of association would be unlawful. One of the basic principles
existing and NZP the principle of equal treatment of employees and non-employees
discrimination, as well as natural persons seeking a job
[§ 13 para. 2 point. b)].
Employer can not treat differently employees solely on the basis of whether or not
members of the union. Therefore, CMKOS believes that existing legislation
position of trade unions does not
indirect compulsion to union membership and can not therefore constitute a breach
constitutionally guaranteed right to freedom of association enshrined in Art. 27, even
rights guaranteed in Art. 1 and Art. 3. 1 of the Charter.
114 respectively. CMKOS further comments on the petition to annul § 24 par. 2
NZP, as regards the alleged unequal status between trade
Organizations. Regarding the demand voiced in the second sentence of Article. 27
paragraph. 2 of the Charter ( "Limiting the number of trade union organizations is unacceptable
as to favor some of them in business or industry."), And
legal theory recognizes that the permissions unions also act on behalf
outsiders may, in extreme case, ie. if there is no agreement on a common
procedure, testifying to the trade union representative: "as
the second sentence, its provisions are implemented on the one hand the aforementioned
Act no. 83/1990 Coll. as amended by Act no. 300/1990 Coll., partly so.
law on trade union pluralism, ie. Act no. 120/1990 Coll., which
regulate certain relations between trade unions and employers
as amended by Act no. 3/1991 Coll. (ie., as amended by the 11th amendment to the Code
work). These regulations were issued in response to an earlier exclusive
position united trade union - ROH
(ROH) - and is characterized by an effort to ensure absolute trade union pluralism.
This is reflected already in the amendment to the law on citizens' associations (made
Act no. 300/1990 Coll.), Which, although required by labor unions
simple registration instead of registration, but does not provide any declaratory characters || | by which to distinguish them from other associations;
for union organizing is thus considered each organization of citizens who
proclaims itself as such, and as such are registered
Ministry of Interior, which gives the possibility of any abuse. It allows them particularly well
law on trade union pluralism, which obliges employers to cooperate and co
all in his acting union organizations.
Unless agreed with them otherwise, and also in negotiating corporate
collective agreements, all these organizations are acting with him only
together and in unison, if among ourselves and with him agree otherwise;
It allows the creation of employer organizations pseudoodborové
just a few members actually blocking collective bargaining. Therefore
considering the application of the so-called. The principle of representativeness of trade unions, which recognizes the right of each
unions act on behalf of its members
, but the authority to act on behalf of outsiders
gives only union organization representative, the law stipulates criteria according
which determines the representativeness (number of members, proportionality
representation etc.). Such permission - if it were enacted - would
disadvantage on this most representative organization in the sense
Charter if representativeness is checked regularly and each
another trade union organizations had the opportunity to apply for it. "(Pavlicek, V. ,
Hřebejk, J. Knapp, V., Kostečka, J., Sovák, Z .: The Constitution and the constitutional order
Czech Republic. part 2. Rights and Freedoms. Linde Praha, as, Praha || | 1996, pp. 210-211).
115th CMKOS bases its opinion to § 24 para. 2
NZP also from the fact that the Constitutional Court in its Judgment. Nos. Pl.
US 40/02 (Collection of Decisions, volume 30, judgment no. 88, promulgated as no. 199/2003
Coll.), Stated that "if the purpose of collective bargaining be
mechanism of social communication and democratic procedural solutions
potential conflicts that threaten internal peace, then it is associated with the requirement
legitimacy (representativeness) ". The Constitutional Court expressed
that the previous legislation based on absolute union pluralism
unjustly favor smallest (least presentable)
trade union organizations at the expense of larger (representative) trade unions,
which were so limited or . prevented implementation of economic and social interests
, for the protection of workers in trade union organizations
associate (with a tiny labor union membership
base, representing a minority of workers to block the collective bargaining
against the interests of the majority represented by a trade union representative | || organizations) contrary to the purpose of the right to collective bargaining. CMKOS
emphasizes that § 24 para. 2 NZP finish
representativeness of these unrepresentative unions from collective bargaining
excluded. The law assumes that individual unions
acting jointly and in concert when among themselves and with
employer agree on another procedure. The employer may therefore
with the most representative trade unions conclude a collective agreement
only when the absence of such agreement. By watching legislator
Fulfill the purpose and goals of collective bargaining resulting from
conventions of the ILO (especially Conventions Nos. 98 and no. 154).
Representativeness determined through the largest number of union members (organizations)
acting for employers is clear and objective criteria.
It is fully in line with the Constitution. Article. 27 paragraph. 2 of the Charter reads: "
Trade unions are established independently of the state.
Limit the number of trade union organizations, is prohibited, as well as to favor certain of them
enterprise or industry. ". This instructs the framers of the Constitution provides for equality
chances, not equality of outcome. § 24 par. 2 NZP
So with this article is not in violation of the Charter, because the chance to achieve the result, therefore, associate
majority of unionized employees in the enterprise, or
enforce their views, ideas and interests of the employer,
has any trade union.
116th In the opinion of the CMKOS therefore § 24 par. 2 NZP
in accordance with the Constitution and does not contradict Article. 27 paragraph. 2 of the Charter. According to Art. 6 of the European Social Charter
state has an obligation to promote collective bargaining.
The existing principle that any trade union organization could veto
collective agreement, with the contrary. New legislation
contained in § 24 para. 2 NZP It is an important measure to promote
collective bargaining and collective agreements to which
individual states also committed to ILO Convention. 154. The Czech Republic || | and in this way creates an important precondition for the ratification of the said Convention
. Lastly, it concerns the petitioners' objections that § 24 paragraph
. 2 shows signs of uncertainty or incompleteness, CMKOS rejects it, because
this objection could be overcome only at the cost of improperly editing
117th To further proposal to repeal the provisions of § 33 para. 3, § 73 para. 1
§ 73 para. 2 beginning of the first sentence read, "If the employer
different legal entity than that specified in § 33 par. 3" CMKOS notes that
proposal challenges the new legislation, appointment and dismissal of senior
employees in maintaining equality among employers
(employees); NZP is it possible to create employment by appointment only
"state" and said employers and employer discriminates called.
Private sector. Unlike the previous legislation contained in § 27 para. 4
old Labour Code, the employment relationship could be established for senior employees
appointment to any employer, have this option
according to § 33 par. 3 NZP really only some of them, not just in terms of
"head of government departments, heads of organizational units
government departments, directors of state enterprises, leading
organizational units of state-owned enterprises, the head of state funds, if
it is at the forefront of their individual body, leading contributory
organizations, heads of organizational units and contributory organizations
director of the school legal entity unless special legislation
otherwise. " CMKOS based on the fact that the Constitutional Court has repeatedly
rejected an absolute concept of the principle of equality that equality "citizens"
can not be understood as an abstract category, but as relative equality,
which only requires the removal of unjustified differences (eg. in
finding of the Constitutional court. Nos. Pl. US 15/93, Collection of decisions, volume 1
judgment no. 3 promulgated under no. 34/1994 Coll.). CMKOS believes that the
violation of equal intensity required by the Constitutional Court does, that is.
No disadvantage "private" employers as opposed to "state"
employers that they can staff at the so-called. || Appointed position | withdraw even in situations where the employee has not breached its duty
labor. This view is based on legislation
contained in § 73 para. 2 and 3 NZP agreement allowing other legal entities
than those referred to in § 33 par. 3 of the senior employee (§ 73 paragraph
. 3 ) that the employer and the senior employee of its function
appeal with the effects mentioned in § 73 NZP if
also agreed that a senior employee may waive this place (this regulation applies
in general, without being at such an employee based
employment appointment). Divergent treatment in
dismissal of managers of "private" and "state" employers
Justified, among other things. Just with regard to their general
different character compared to the "state" to employers. Private entities providing NZP
in this issue (compared to previous legislation) greater contractual
space in accordance with the requirements of liberalization of the labor legislation in the private sector
and greater freedom of the employers in the regulation of labor relations
. For different arrangements between the private and public sector
there are also substantive arguments. As for the employees, who are
possibility appointment by NZP it is subject should be taken into account that this is
especially for employees whose employment relationship (service relationship)
adjusted (yet ineffective) Act No. . 218/2002 Coll., on civil
employees in administrative authorities and remuneration of these employees and
other employees in the administrative offices (service Act), as amended
. The dominant feature of the employment relationship
civil servants under this Act is that government employee acting for
state is obliged to maintain the state as their employer loyalty, they must
meet the statutory requirements, all of which can come into consideration
exemption is subject to increased obligations, in particular those
observe professional discipline and disciplinary responsibility, as well as the possibility of his transfer
for state services to other service office.
Legal adjustment of civil service law contains some restrictions
rights of workers, such as a complete ban on other gainful activity than the power
civil service, with certain exceptions, restrictions on the right to strike and restrictions
business ; employee (working) conditions of employees
ministries and other administrative authorities to apply the so-called.
Screening Act (Act no. 451/1991 Coll., laying down some further preconditions for
certain positions in state bodies and organizations
Czech and Slovak Federal Republic, the Czech Republic and the Slovak Republic
amended). For these reasons
employment relationship (service relationship) between the individual (state employee) and the state will be founded
bilateral legal act (contract), but
unilateral appointment by the state. Given that the effectiveness of Act no. 218/2002 Coll
. has been postponed several times, it was justified to maintain at least
leading "state" employees who after the effective date
NZP perform their jobs still in employment, the legal regime
"appointment". For all these reasons as follows based
differentiation between the so-called. "Sovereign" and "private" employers, which allows
achieved by different legal means appropriate
specific characteristics of "private" and "public" sector of the same legal
Consequently (dismissal of the head of his functions), according
CMKOS believes should be considered justified a different approach, even if
was considered unequal treatment, in any case does not reach
intensity, about what speaks Constitutional court and that would have justified the abolition
aforementioned contested provisions NZP.
118th CMKOS also the petition to annul § 305 paragraph. 1
§ 306 paragraph. 4 NZP (internal rules) that, according to the petitioners, the inequality
due to the fact that the employer may modify the internal regulation of the rights of employees
referred to in § 305 paragraph. 1 yen when there does not
trade union. Otherwise, this adaptation must be included in the collective agreement
, respectively. can be transferred to a collective agreement
internal regulation of the employer. This difference in treatment
petitioners consider to be the cause of unequal treatment with employers
causing conflict rule at issue with Art. 1 and Art. 3. 1 of the Charter.
119th With this interpretation ČMKOS disagrees. It is based on case
Constitutional Court, according to which equality is not an abstract category
(absolute), but only relative and can not be understood mechanically and egalitarian
(Judgment Pl. ÚS 5/95 - see above). In this case, it is certain
different treatment entirely justified. CMKOS further notes that the application
argument about the "unequal" position of employers, where
a trade union and which does not, would ultimately
could lead to questioning the right to associate in trade union organizations
, guaranteed next Art. 27 of the Charter and Art. 8 of the International
Covenant on Economic, Social and Cultural Rights and other international legal instruments
. From the fact of action by trade unions
employer is also in many other respects follows
different position than the employer, for which the unions does not (eg.
Obligation to bargain collectively, the obligation to negotiate, provide information
etc.). . With regard to the right to freedom of association in trade union organizations
But not these examples of different treatment
considered a violation of the constitutionally guaranteed principle of equality, because with regard to
principle of proportionality, under whose viewing angle should also be read | || principle of equality, this is an entirely justified differences. The petitioners
outside to indicate that employers where no trade union
organizations are exposed to less "interference in property rights" and
another "limiting employers' (p. 32) than employers, where || | unions operate. The petitioners 'assertion ČMKOS regarded as the expression of certain
ideological platform, based on the rejection of the social workers' rights as an objective base
business activities represented
particular social group in society, who failed his vision on the organization of labor
relations in the legislative process and the clash of ideas transmitted
before the Constitutional court.
120th CMKOS believes that the standard requiring employers to modify
wage, salary and other employee rights
especially collective agreements, rather than internal regulations should be interpreted with
regard to the legal nature of these internal regulations. These, in general, not theory
Czech labor law deemed legal acts, and
regarding their extradition so different rules apply than for legal actions.
Because the internal rules governing employers closer
undetermined number of cases of the same kind (are binding for all employees
employer who issued an internal regulation) and that
meet the requirements for their validity may be rights and obligations contained therein
enforceable, the internal regulations considered quasi
normative acts respectively. as acts of a hybrid nature, having features as
legal act, as well as normative act (Galvas, M. et al.
Labour Law. 2nd ed. Brno: Brno Supplement, 2004, p. 447; Bělina, M. et al.
Labor law. 1st edition. Praha: CH Beck, 2001, p. 58).
121st According to the CMKOS it is important to also realize that the essence
unilateral decision of the employer on employees' rights, especially if
those rights are so important, such as the rights of wage and salary is
theory at least questionable. In private law, under which part can
modern labor law, respectively. the part relating to these rights and obligations
employers and employees be considered, namely, the
rights and obligations of the entities are determined by expressions
Will these two entities in the position of the Parties, not the
unilateral destination. This method of determining the rights and obligations
is typical of public law, respectively. It was typical of the totalitarian right behind
whose reminiscence can adjust the internal regulations of the Czech labor law
considered. [For comparison, a different understanding of the nature of internal regulations
employer may yet bring German law in which
these measures are considered "unilateral commitments employer what
intends to pay salaries, wages and other payments for services, considered
binding contractual offer for each individual employee.
Employee has the opportunity to take unilateral promise
employer, either expressly or impliedly that the payment received.
Promise to then become part of an individual employment contract and can no longer be
employer unilaterally canceled. At the same time their general
force kolektivněprávní character and the same value as racing
Agreement and is therefore again to cancel this agreement. " (Lexikon work.
Lexikon der Arbeit. Friedrich Ebert Foundation, 1994, p. 48)].
122nd According to the CMKOS, that the employer does not have unlimited freedom to determine
wage and salary workers' rights, not due to the above
considered as limiting equality or an intrusion into a constitutionally guaranteed protection of property rights
employer. Violation of equality between subjects
private law would be contrary state the opposite, if one entity
(employers) were granted unilaterally and freely decide on
Fundamental rights of another entity (the employee) the exclusion and denial
fundamental principles of private law. If NZP differently from the old
Labour Code puts emphasis on strengthening the contractual elements in the working
law and on the determination of basic workers' rights based on an agreement with them
respectively. with their representatives, this should be seen as an important step
measures to promote the liberalization of labor regulation and expansion
of contractual freedom. NZP said that strengthening the contractual elements eliminates
existing unequal status of employees against employers in the
such important issues, which represent their wage, salary and other
rights in labor relations, as internal labor regulations or internal regulations
governing the reimbursement of travel expenses could previously
exist independently of the existence of a collective agreement, ie.
independently of the will of the employees. According to the CMKOS it is yet surprising that the petitioners, although in other areas
definitely advocate the enforcement of contractual freedom
labor relations, if the internal regulations of the employer
occupy a position totally opposed; require the employer
possessed unlimited power of decision regarding workers' rights, and
want him to admit so in relation to employees very unequal position.
123rd CMKOS emphasizes that the obligation to support and promote collective bargaining
results for the Czech Republic from a number of international
instruments, especially the ILO Convention no. 98 on the Right
organize and to bargain collectively (Art. 4) or the European social Charter
(Art. 6). If the legislature these starting respected and
respective rights of workers and their trade unions to NZP
incarnate, can not be considered a violation of the equality between employers
(justifications based on the claim that employers where trade union organizations do not
they are thus spared certain restrictions on collective bargaining stemming
), but as a legitimate respect for the Constitution and the rights enshrined by international
employees and their representatives.
124th CMKOS has concluded that the internal regulations issued by the employer is necessary
under Czech labor law be considered Institute
whose legal nature is approaching normative legal act.
Due to the fact that internal regulation is the act which are unilaterally determined
rights in labor relations to others (employees), it is necessary
his extradition to admit rather exceptionally, subject to certain conditions
. In this respect it seems ČMKOS adjustment made in the provisions of §
305, paragraph. 1 NZP as satisfactory since, in accordance with the promotion
contractual freedom in labor relations ais right to trade union association and collective bargaining
lays down the basic rule that wage, salary
and other workers' rights to be treated in collective agreements
therefore on the basis of free speech employer and employee representatives.
Editing internal regulations of the employer are applicable only
when employers in trade union organizations do not and can not be
therefore conclude collective agreements, respectively. if you are authorized to perform
appropriate adjustment in the internal regulations contained in the collective agreement.
125th Proposal also calls for the repeal of § 306 paragraph. 4 NZP,
containing the obligation of the employer for which a trade union organization
obtain her consent to the issuance or amendment of the CEOS.
Appellant's argument is that this modification, as in the case of § 305
paragraph. 1 cause inequality between employers. Regarding this
mechanical application of the principle of equality, refers to the opinion ČMKOS
referred to above. Since the employment of internal regulation sui generis
can in many references also to the arguments put forward on a proposal to repeal
§ 305 paragraph. 1 NZP. Even if co
trade union organizations on the issue of Employment is a manifestation of the right to trade
association and promotion of collective bargaining, which are directed towards
achieve and maintain social harmony between employer and employees.
126th CMKOS also points out that the employment of the institute, which
elaborates and specifies the obligations of employers and employees
under applicable law. Relevant trade unions have yet
under § 320 paragraph. 1 NZP right to discuss and, therefore,
Participate in the formation of bills and other legislation
related to the vital interests of the workers. The provisions of § 306 paragraph. 4, which establishes co
of the organization during
implementation and specification of the accepted legal standards to specific
conditions with the employer, that this authority regulates in relation to
trade union cooperation at their formation. This mechanism
based on the fact that employees respectively. their representatives in certain
extent to participate in the creation of laws that affect them generally
concern, as well as on the specification of a particular employer,
can be considered as another legitimate expression of respect for the legislature to the fundamental economic
and the social rights of workers, namely
rights of trade union association and free collective bargaining.
Consent unions with the release of CEOS also associated with
authorized trade union organizations monitor compliance with the legislation
with the employer. Given that the employment of the Institute
konkretizujícím obligations under these laws, you can
union agreement with its release
considered a significant means of preventing violations of laws of the employer.
127th CMKOS also disagrees with the petitioners' objections -
proposing the annulment of § 46 and § 61 paragraph. 1 NZP - that those provisions NZP,
which require employers to discuss with the trade union organizations
transfer (§ 46 NZP) or notice or immediate abolition
employment (§ 61 paragraph. 1 NZP) and, in the case of employees who
are not members of the union, interfere with individual rights
workers, in particular their privacy and personal freedom.
Trade union organizations in the case of an individual realizes his
general protective function and is bound by the provisions on the protection of human freedom and dignity.
In the two contested provisions relating to the situations where the employer
be significantly affected unilaterally to
employment relationship between him and the employee.
Trade union as a representative of the employer's employees are acting to some extent as
"safety"; unions know both ratios employer and
and employees they represent, and may in both cases relevantly
comment. CMKOS believes that this procedure can be avoided only
unilaterally transferring to another job (working in breach of contract
), as well as depositions or. immediate termination of employment relationships
before their implementation. Trade union and to some extent
acts as a mediator can help you find other suitable
solutions. It is not possible these permissions unions breaking away from an overall
action of trade unions in labor relations on behalf of all employees
. Trade unions are closely related to trade control
privileges (§ 321 NZP) and the right of unions to information and consultation
(§ 287 NZP). The law, these cases of unilateral intervention
employer in an employment relationship with the employee deems
so severe that these situations expressly regulates the obligation to consult with trade unions
, actually a special inspection procedure
128th In the opinion of these CMKOS trade union privileges
result of the protective function of labor law and related to the very nature of the activities
trade unions, which defend economic and social interests
not only their members but also other employees.
Coalition guarantees freedom (Art. 8 of the International Covenant on Economic, Social and Cultural Rights
, Art. 27 of the Charter)
legitimize defensive activity of trade unions, which would without active input into labor relations were
only proclamation. Regarding
legitimacy of trade unions, not only in proportion to their members but to the sum of all
employees, it is clear that what was created in the historic
process as an objective necessity defense work outside forces (State | || trade unions) in the individual and the public interest was legalized. Additionally, similar
authorization are not uncommon even in foreign jurisdictions.
For example, in Germany, a works council even the right to co
when transferring employees to other jobs in businesses regularly working more than twenty
employees with the right to vote, as well as where they are created
Regulations on the selection of candidates for the position (see Lexicon work.
Lexikon der Arbeit. Friedrich Ebert Foundation, 1994, p. 170).
129th CMKOS adds that § 286 paragraph. 2 NZP (according to which, among other things.
It is for employees who are not unionized, labor relations in
trade union with the largest number of members
who are working with an employer employment, unless the employee otherwise this
) gives employees who are not unionized,
option to specify a different union to make for him in labor relations act
. In accordance with the guaranteed freedom of coalition and trade union pluralism
such an employee can also join in other
union. The fact that the employer with a labor union
discuss transfer the employee to another job, dismissal, he intends to give
employees or immediate termination of employment, not by
opinions interfere with the integrity of the person and his employee privacy
nor in his personal freedom. Any information that is in these cases
subject to negotiation and are thus made available to union
organization, related to the performance of work (employment relationship
employees) and their discussion is therefore eligible for individual freedom and privacy
130th According to the CMKOS, however, the employee is not given the character
provisions of § 46 and § 61 paragraph. 1 NZP and application of the principle of equal treatment in labor relations
eliminate any trade union.
Unilateral declaration employee that wants to be in labor relations
not represented by a trade union can not lapse
privileges guaranteed by law unions nor the obligation of the employer.
The same applies to the agreement between the employee and the employer, which
subject to exclude trade unions from consideration because it would
was a contract to the detriment of a third party which is not permitted.
131st CMKOS has with respect to the above reasoning behind that would
Constitutional Court had submitted a proposal to repeal certain provisions of the new Labour Code
132nd Counsel Members (plaintiffs) submitted to
opinion ČMKOS replica, which extensively issue with the arguments contained in it
. CMKOS opinion, the appellant seeks to create the impression that
case in question is not a legal but a political-ideological
problem that is not addressed to the Constitutional Court.
The petitioners are convinced that in this matter, the factual
constitutional basis unambiguous, as is apparent both from the design
itself, partly from the fact that the CMKOS to a wide range of constitutional issues
NZP (in draft mentioned) does not express (and the provisions
§ 20 NZP, § 342 paragraph. 1, § 325 and 326 in conjunction with § 491 paragraph. 2 OZ, with
§ 516 paragraph. 3, § 572 paragraph. 1, § 573 and 575 CC, as well as § 497, § 517, paragraph
. 1 and § 561 paragraph. 2 OZ). Sam ČMKOS eg. Notes that the low quality and
neseznatelností legislation will be in the Czech Republic
meet practically every important legislation;
So basically argues that the amount of low-quality legislation
creates a kind of standard that ultimately leads to the fact that
within the "standard" is no longer the quality of new legislation in terms of
constitutional requirements questioning. Such conclusions are not identify
petitioners; on the contrary, they consider that argument
CMKOS suggests just for the fact that the Constitutional Court to deal with the present proposal
had, because it alone has the constitutional
assess the degree of conformity will each provision. Misconception is apparently also
ČMKOS objection to the Constitutional Court to address the issue "needs" some
legislation in terms of interference with the fundamental rights and freedoms. If you are experiencing
because such intervention must respect the principle
reasonable (fair) balance between the general interest of society and
requirement to protect the fundamental rights of the individual.
From the constant jurisprudence of the Constitutional Court and the European Court of Human Rights
(ECHR) indicate that a fundamental right or freedom may be restricted only in
interest of another fundamental right or freedom or public good, so that || | mutual benchmarking is based on three criteria: appropriateness, necessity and proportionality
(narrower). The Constitutional Court in its case
Does not apply only those criteria, but also postulate
minimize the infringement of fundamental rights. The petitioners argue that
challenged provisions violate fundamental rights and freedoms, without being required
maintained the principle of fair balance and without being properly
evidence of the need and intensity of their intervention.
Harm to fundamental rights caused by the contested provisions NZP is disproportionate and legal
treatment and their negative consequences beyond any positives
which should represent the public interest in her. As follows from the above mentioned
, as well as the very law of the Constitutional Court, the Constitutional Court
appropriate (contrary to what the CMKOS)
challenged statutory provisions and their constitutionality evaluated from this perspective. The proportionality test
include, among others, the standard legal instruments as the European
constitutional courts and international courts, respectively. MNCs.
The idea that "necessity" of the adjustment and the so-called.
"Proportionality / proportionality" between the general interest and intervention in
fundamental rights and freedoms is entitled to consider and determine only
legislature without the possibility of review by the Constitutional Court do not consider
133rd In its reply to the opinion ČMKOS the individual contested provisions
NZP appellants stated that they never claimed that the cogency
certain provisions NZP is unconstitutional provisions of § 2 para. 1
NZP. But consider for improper allegations ČMKOS that in terms of zstavnosti
provisions in question can be considered only whether the provisions Imperative
NZP is or is not in accordance with the constitutionally guaranteed principle of contractual freedom and autonomy
will. They emphasize that as problematic in terms of constitutionality
consider the way the Imperative and dispozitivnost in NZP adjusted
peace and cogency, to which the chosen method of treatment and leads
which does not respect the principle of proportionality. Unable apparently forgotten that the main user
NZP are ordinary workers and employers who are barely able
different interpretation methods used, and is therefore in principle conceivable that
will be able to determine whether, in the specific case a provision from
which may or may not deviate. The Labour Code in this sense
should be clear and as far as possible simple legal norm, which allows minimum
interpretative doubts. The ECHR and the Constitutional Court
repeatedly stated that legislation must be formulated
sufficiently precise to allow each person (if necessary with the help of knowledgeable consultants
) adapt their behavior. If you can determine the content of legal norms
draw using only the correct interpretation
methods, it is evident that violate the principle of legal
state recognizability and predictability of legal decisions, and such a standard does not
each person's behavior to adapt to it.
134th According to Petitioners mandatory treatment, respectively. its intensity,
infringes the fundamental rights and freedoms. It is an intervention in contractual freedom
as a derivative of the constitutional protection of property rights and
sphere of autonomy of the individual. Such interference can only occur while
where justified by a certain public interest, if such interference
reasonable and necessary, while maintaining postulate
minimizing interference with fundamental rights. Otherwise there is a constitutional violation.
The fact that the mandatory nature of the NZP (unlike the original Code)
social need or public interest justify stems from
while the declared intention of the legislature, and from the very expression ČMKOS where
talks about introduction some degree of liberalization in labor law
aroused by just changing societal needs and public interest.
The petitioners do not claim that the NFA was in labor law to introduce
boundless freedom of contract; "Only" emphasize that the use of the concept
delegation in conjunction with other methods of defining "dispozitivnosti" in § 2 para. 1 NZP
leads to substantially complete cogency entire NZP, which is not
public interest and social needs
and proclaimed intention of the legislators; However interferes with the constitutionally protected freedom of contract and
individual freedom, so is unconstitutional. The wording of § 2 para. 1
NZP in connection with § 4 NZP (the concept of delegation) clearly shows that
can not agree on anything is "somehow" contained in the Civil Code, if
It NZP not to refer explicitly. Agree it can be only what is in the NZP
adjusted or anticipated, and possibly conclude so. Innominate contract
option whose existence is very limited. The concept of delegation therefore
virtually no room for contractual freedom of the parties of labor relations
135th Replica deemed false claim ČMKOS that innovative and unconventional
moment presents itself already the possibility to apply for adjustment of labor relations
OZ. Regarding bond
labor and civil rights, is the interconnection of these legal industry
its historical foundation. This connection, even on the principle of subsidiarity, the traditional and
application standard in most countries and was also in the Czech Republic
, and until the adoption of the Labour Code in 1965, when the then
due to ideological concepts and by command-driven economy
became independent labor legislation and utter detachment
labor law from civil law. NZP had remedied
breakage links between civil law and labor law and the aim was
handle it so that it will no longer should not be a completely independent, stand-alone
Code governing labor relations with no ties to the area of civil
right. In light of the foregoing, it was therefore entirely legitimate
expect that the relationship civil and labor rights will be adjusted
standard based on the principle of subsidiarity.
136th Replica deemed misleading claims ČMKOS that § 4 NZP based
opportunity to apply for adjustment of labor relations Civil Code.
Concept of delegation refers only to certain specific provisions
OZ without links to other provisions. Establishing labor law to civil law
when the concept of delegation entirely illusory. In essence
say that it continues to be NZP their own way, without significant
mingling with the civil law because of the Civil Code may be used exclusively
those provisions which expressly refers NZP.
Distinct disadvantage principle of delegation is that it should be applied the provisions of other legal
Code (governing another area), but not subsidiary,
but equally alongside other provisions NZP, without relation to other
civil Code provisions. This fact causes
significant application problems concerning those provisions that the NZP
within the concept of delegation expressly refers. The concept of delegation so
rise to legal uncertainty and instability due neseznatelnosti and uncertainties
laws and contradicts not only the freedom of contract, but also the so-called principle
. Quality rights and disputes and confidence in the law. As a result
concept of delegation and provisions OZ, which is the (mandatory) NZP
referenced without possibility of further extension of the "application" OZ
become part of labor law and de facto NZP.
137th According replicas CMKOS disagrees with the interpretation according to which the participants
labor relations can under § 18 NZP
in conjunction with § 48 OZ negotiate a withdrawal.
The petitioners in this context that this legal institution
was always part of the regulation of labor relations and was part
and old Labour Code, throughout its existence;
in relation to labor contracts was chosen framework which, except where
employee failed to start work, it explicitly excluded withdrawal from
employment contract (§ 245 paragraph. 4 of Law no. 65/1965). . The old code works only
that allow withdrawal of legal reasons, but
allow even arranging for contractual reasons for withdrawal from the contract
. Withdrawal from the contract is therefore standard
institute of labor law, which was anchored in the labor code since its beginning
. In this respect therefore NZP nil change. According to the legal modifications
NZP it is thus still possible to withdraw from the contract and legal
the contractually agreed reasons (as was the case previously). NZP only - to
unlike the previous Labour Code - no longer contains the (time) limit
rights of the employer to terminate the contract work. It therefore suggests
fact that the legislature was indeed to allow the application of § 48 OZ
also in relation to employment contracts, including labor contracts. NZP
in its § 36 para. 2 regulates the special legal reason for withdrawal from
employment contract only as one of the statutory grounds withdrawal from
Contract stipulated NZP and in addition can still
parties agree on other grounds withdrawal (even work).
Because, unlike the previous Labour Code does not contain
NZP rules that would limit the possibility of withdrawing from a contract of employment only until
employee failed to start work, can, according to the legislation of working NZP
withdraw unlimited period of time (ie.
throughout its duration).
138th The petitioners argue in the reply that the withdrawal from the labor contract is not
§ 48 para. 1 NZP noted, does not mean that it is not possible from
employment contract. They point to the fact that even the "old
Labour Code" contained in its § 42 par. 1 (
termination of employment) "withdrawal from the employment contract," which meant a
never been interpreted to it would be impossible to terminate the employment contract
; on the contrary, the employment contract was possible to withdraw due
referred to in § 33 para. 2 ZP. In the above (obviously wrong)
ČMKOS interpretation would not be possible to withdraw from a contract of employment;
It refutes both the rules contained in NZP, and ČMKOS itself, which, in its statement
option to terminate the contract of employment according to § 36 paragraph
. 2 NZP. CMKOS so alone your argument completely denies.
The petitioners therefore conclude that the wording of § 48 para. 1 NZP (formerly § 42 ZP), and had still not
does not affect the possibility of withdrawing from the labor contract, which
NZP expressly acknowledges and regulates. According NZP be the employment contract
resign both from the statutory grounds specified in § 36 para. 2 and NZP
forth in § 49 OZ (which explicitly refers to § 18 NZP) and § 497 CC, §
517 par. 1 Civil Code, § 561, paragraph. 2 and § 575 OZ OZ (which expressly refers
§ 326 NZP) and on the reasons participants agreed contractual relationship.
If it is possible over the wording of § 48 NZP terminate the employment contract of
legitimate reason according to § 36 para. 2 NZP - which CMKOS explicitly admits
- there is no reason to prevent the withdrawal from work
contracts from other legitimate reasons or for reasons agreed, because it NZP
139th The replica also responds to § 13 par. 2 point. g) NZP,
that "an employer may not require or arrange ensure
obligation employment relationship, with the exception of the non-competition clause and
deductions from income from employment.".
Has doubts about that, "the general principle of labor relations can be lex specialis
to another, specific and special provisions of labor relations
as lex generalis". CMKOS continue to support the applicability of § 544 paragraph.
1 and 2 and § 545 OZ, which is expressly referred to in § 326 NZP, argues that
'penalty can in fact be arranged to ensure the fulfillment of the employer
favor of the employee. " The petitioners emphasize that this interpretation is
does not concur with the wording of § 13 par. 2 point. g) NZP; It is
not arrange any collateral obligation
in an employment relationship, regardless of whose commitment should be ensured. Of
that provision is thus clear that we can not provide any commitment in
employment relationship, thus no obligation
employee to employer.
140th According to the CMKOS replicas of the defense contested the constitutionality of § 13 para. 2
point. g) NZP also argues that "the limits of assurance is an expression of commitment
protecting the economically weaker party" and protect "ordinary
employees to avoid imposing unreasonable burdens".
The petitioners emphasize that this is not a "limit" collateral options, but a
exclude the possibility of securing an obligation, because deductions from wages can hardly be considered a hedge
Institute. They consider this radical change in the
constitutionally guaranteed rights and freedoms, which is unprecedented even in a totalitarian regime
. Even the old Labour Code ensuring the rights and obligations of labor relations
allowed. Objection to protect the economically weaker
Party is not appropriate in this case. This provision
§ 13 paragraph. 2 point. g) NZP be protected generally not an employee, but the employee
behaving unlawfully. If an employee behaves
"properly" does not and can not be use to secure an obligation, and
therefore can not be any "disability"; does not ensure
punitive in nature, but should help lenders get outstanding performance.
141st The replica also responds to the content of the submissions on the question of content ČMKOS
neseznatelnosti and unpredictability challenged provisions of § 321 and 322
NZP. CMKOS emphasizes that the right to control trade unions in accordance with § 321 and 322
NZP not qualify as state administration. This view, however
alludes not only to the new system of administration and legal theory, but also completely
clear words spoken JUDr. Josef Vedral (Chairman of the Commission for Public Law
Government Legislative Council) published in his article
entitled "The scope of the new Administrative Procedure Code". Vedral
notes that Act no. 500/2004 Coll., Administrative Procedure applies to
natural and legal persons acting in the capacity of public administration
, with the addition that the new Administration will Regulations apply, for example.
procedures for trade unions in accordance with § 22 and 136 of the Labour Code (now § 321 and 322
NZP), "because even in this case, the performance of public administration State
delegated to legal persons, ie administrative proceedings ".
142nd Of ČMKOS argument can be inferred that the CMKOS failed readjustment
Administrative Procedure and its relationship to the NFA. Since it was published NZP
for the effectiveness of the new administrative procedure had to be processed and issued
accordance with the legislation effective at that time. Must therefore should not be
argument that NZP of the legislation of the new Administrative Procedure does not come,
not consistent with it and her disregarding contrary, these facts would
again evidenced by the contradiction with the principle of so-called. Quality Law. According to the legislation
new Administrative Procedure Code (Act no. 500/2004 Coll., The Administrative Code) is the administrative authority
executive body, authority territorial government as well
natural or legal person or other authority if they were entrusted
decisions on the rights and obligations of individuals and legal entities in
public administration. The Constitutional Court has defined previously
competent public authority as follows: "The public power to be exercised primarily through
bodies of legislative, executive and judicial powers, and under certain conditions it
may also be undertaken through other entities.
Criterion for determining whether another body is held as a public / state power is
fact whether a particular entity decides on the rights and obligations
others and those decisions are enforced by state power or whether the
stand up for these rights and obligations intervene. ".
In the opinion of the petitioners, as well as the Chair of the Public Law of the Legislative Council of the Government
Thus, the present provisions of § 321 and 322 NZP was entrusted
trade unions exercise of state power. It apparently follows from the provisions of §
322 paragraph. 4 NZP, according to which the costs incurred in the exercise of control over
occupational safety and health shall be borne by the state.
Opinion CMKOS rejects the interpretation according to which the right of control and issuing binding
instructions and prohibitions on trade unions has been to the state administration, thus
According to the petitioners again demonstrates neseznatelnost and unpredictability
143rd Replica deemed surprising CMKOS view that the binding instruction
according to § 322 Sec. 2 point. a) NZP and a ban on overtime and night work according
§ 322 paragraph. 2 point. b) NZP should be voluntary and should not be construed as recommendations
. Also point out that, given
control, and the ability to store those measures, among other things, entrusted the scope
labor inspectorates according to the Act no. 215/2005 Coll., On labor inspection, which illustrates the duplicity
regulatory and competitive performance of control activities.
In the given case the employer is obliged to enter, without the possibility
elections into contractual relations with the unions, as
entity that exercised public power; supervises and is entitled to save him
binding instructions and prohibitions. CMKOS in its statement
nor ignores the possibility of so-called. Šikanózního exercise of trade union rights
organizations. Thus, as the national rule interferes with the property rights
employer and also constitutes unequal status
between employers and trade unions in their contractual relationships;
this is done entirely unjustified, because the law on labor inspection is within the scope of labor inspectorates entrusted
(except control activities) among others
issuing a decision on the prohibition of overtime, night work, work
workers and youth workers, if exercised contrary to the
special legislation, and prohibit the use of workplaces, means
And performance of work and activities that threaten the safety of people and saving
measures to eliminate defects and deficiencies (cf. To § 322 paragraph. 2
NZP). Due to the fact that labor inspectorates are also obliged | || immediately inspect defects of which were notified
trade union organizations, and especially because the Labour inspection Act (unlike
from NZP) specifies the procedure inspectorates (or. inspectors) during the performance of their
scope (including control activities), is apparently quite
unjustifiable that trade unions were entrusted with power to issue
employer prohibitions or impose binding guidelines. If the power
collective bargaining was not (despite the aforementioned)
qualified as state administration and hitting him (according to the statements CMKOS)
administrative order, the petitioners point out that in such a situation, it is necessary legal | || treatment of these issues in the NZP considered completely inadequate; because
that regulates trade union organizations entrusted to control permissions and then
particularly vague right of trade unions to impose binding regulations, employers only
rather general and does not lay down detailed rules and procedure for the exercise
those conferred privileges. It is not clear who is entitled
these issues for trade unions to take action, how can perform
control (eg., After entering the workplace), what evidence is entitled to exercise control
ask, how can
require removal of defects on the employer and how work can prohibit, respectively.
Overtime and night work; especially not obvious character of
negotiations and not at all adapted the relevant procedure.
144th Replica criticizes the extra (unprecedented)
recognized trade unions the right to impose on employers (and presumably employees)
binding regulation, which is definitely not with regard to the wording of § 322 paragraph.
2 interpreted as mere recommendations. For any international treaties
of European Community law or the Constitution can not be inferred
right of trade unions to act against the employer in relation to the control by command,
as a superior authority with the ability to save employers and employees
binding guidelines. Always there is only a right to information and to discuss
, most of the employers the right to give suggestions or recommendations
. CMKOS argument with references to international conventions and the right
EC or the historical regularization of our country does not justify invading
legislation and said significant interference with the rights of the employer.
Aligns If this legislation with the regulations of the European
community, it is clear that the EC legislation essentially regulates only
right of employees to information and consultation, and also in relation to
the field of occupational safety and health.
Employers the right to control employees (or their representatives) are not at EC
explicitly regulated, nor envisaged. CMKOS argues in its statement
Council Directive no. 89/391 / EEC. The petitioners point out
however, that this directive regulates only the right of workers (resp.
Their representatives) to information about health and safety risks and
protective and preventive measures for employers and provides for the obligation of employers to take
appropriate measures that employees
access to specified information (Art. 10). Said Article. 10
directive therefore only guarantees the information obligation; downstream of Art. 11 then shows
obligation to consult with employees (resp. their representatives)
issues relating to occupational safety and health. The Art. 11 paragraph. 3
this Directive, the petitioners point out that the law establishes only
employee representatives to ask the employer to take appropriate
measures and to submit proposals to him to that. Art. 11 paragraph. 6
directive then regulates the right of employees to refer to the competent authorities for
occupational safety and health, consider if the employer
measures taken and provided funds for the poor. Permission
ask the employer to take appropriate measures or to contact
competent authorities can not be equated with control powers
trade organizations such as the NFA regulated, and especially with their
authority to issue binding prohibitions instructions.
Even mentioned international conventions such permission does not establish trade unions. ILO Convention No.
. 87 regulates the "only" general freedom of association and holds states
Bound by this Convention to provide employees with a free exercise of the right to organize
; So regulates the rights and freedoms that are
our legal system enshrined in deciduous fundamental rights and freedoms. ILO Convention
. 87's inspection powers of trade unions addressed, and therefore
of this Convention shall not be based or power control
trade union organizations nor their employers the authority to impose binding guidelines.
145th The other part of the opinion ČMKOS petitioners stated that the simultaneous existence
works councils and trade unions at one
employer is usual in other countries. If we compare our legal
treatment eg. To finish in Germany, it may be noted that unlike challenged Czech
legislation that dualism works councils and trade unions
excreted in Germany (as in one of the more countries), according to the Law on
collective agreement dualism works councils and trade unions
assumed. The petitioners argue that the CMKOS in its statement inequality
works councils and trade unions confirmed. Based inequality
works councils and trade unions CMKOS justifies the qualitative
(?) Inequalities of trade unions and works councils arising from
normative texts (!) And that "
Representativeness Works Council differs from that of the coalition
freedom entrusted to the unions ". Such a difference deny the petitioners, because the view is not based on ČMKOS
constitutional order of the Republic. Those based inequality while inequality
among employees, and that is also inconsistent with the so-called.
Coalition negative freedom. The Constitution does not specify why they should be organized
unionized employees greater privileges, benefits and protection compared
unionized workers in unorganized.
146th According replicas CMKOS have omitted it so. Freedom Coalition not only
(active) the right to associate freely, but also the right freely
nesdružovat, not to be a member of any association (eg.
Trade unions), or from such association secede. Freedom Coalition
So not only protects unionized employees, but also employees, who decided
unionized nesdružovat. It is therefore not true that the coalition
freedom to realize a trade union or
other associations with legal personality. CMKOS further argues that
unions are legal entities that
councils have no legal personality and "no coalition
implementation of the law." CMKOS therefore argues that the violation of the right to associate freely
enshrined in Art. 27 of the Charter could occur with works councils and trade unions
unorganized workers on the grounds that no "coalition". According
replicas, however, because the unions (and therefore
organized unionized employees) are NZP
advantage over other employees (unionized unorganized) and their representatives, there is
indirect coercion to membership of trade unions ;
It is a violation of the right to freedom of association enshrined in Art. 27 of the Charter and
establishes that an imbalance between organized unionized workers and other employees
. CMKOS ignores the fact that the representatives of the employees there
by employers as a result of the "realization"
guaranteed by the Charter of Freedom coalition, including elections not to be unionized
organized. While it is true that for some time according to NZP dualism
unions and the works council may exist, this dualism is time
limited, and until the conclusion of a collective agreement and council
employee subsequently terminates directly from the law . It is therefore evident that NZP
wants dualism unions and works councils to admit, and its legal
finish it basically prohibited.
147th According replica is another objection ČMKOS that
concluding a collective agreement is reasonable and objective condition cessation advice
employees, which suggests that trade unions have already won
sufficient authority and is therefore superfluous to u employer
operated two types of workers' representatives. This objection is purpose and
ideological. Collective agreement because the law in a situation where u
employer a trade union, clearly assumes
and is therefore an expression of obtaining some kind of "authority" of trade unions. Arguments ČMKOS
ILO Convention no. 135 is apparently quite odd, because on the contrary, the Convention counts
existence of trade unions and works councils (and any other elected
Representatives) next to each other, thus dualism with works councils and trade unions.
148th CMKOS objection that the practice works council too embraced by the
replica misleading because councils can not
according to strict rules NZP exist if the employer with a trade union organization
. That in practice works councils are numerous, according to the petitioners
just a consequence of (unconstitutional) legislation contained in the ZP and
149th In the reply it is stressed that it is not unconstitutional himself called.
Principle of representativeness of trade unions without further. § 24 par. 2 NZP
petitioners consider unconstitutional precisely because it does not constitute a genuine
principle of representativeness; as to how this (alleged)
principle in NZP modified and what this adjustment brings consequences (and legal uncertainty
). CMKOS advocated only generally so.
Principle of representativeness, submits no arguments defending the
legislation. CMKOS in its opinion did not deal with the fact that
challenged legislation not regulate the conditions enshrined hybrid
absolute pluralism and the principle of representation (not adjusted for
what circumstances an employer may conclude a collective agreement with a trade union
and the longer it can be assumed that the trade union organization
agree on a common approach; not addressed the question of what happens
collective bargaining and concluding collective agreements unless
during collective bargaining representative changes organizations, therefore
Party, to which it should be a collective agreement concluded;
is not clear what procedure is required from the employer, if
finds that the unions are not progressing in concert, etc.).
CMKOS said only generally states that the objection of uncertainty and incompleteness
§ 24 par. 2 NZP "could be overcome only at the cost
inappropriately casuistic treatment". However, if absolutely missed
adaptation of the relevant rules and procedures can - according to the petitioners - hardly
designate any rules providing for the basic procedures and rules for
regulation that would have been casuistic. They emphasize that this is either a
area crucial decisive for the course of collective bargaining, thus
areas that are socially very sensitive. Inadequate and vague legal
treatment of § 24 para. 2 NZP may ultimately greatly complicate
collective bargaining itself and lead to the disruption of social peace, not only in relation
employer - trade unions, but also on the part of trade
150th The replica also opposes ČMKOS that the petitioners challenged
provisions of § 33 para. 3 NZP, § 73 para. 1 and the beginning of the first sentence of § 73 paragraph
. 2 NZP terms of "pure" absolute inequality. Indeed, they find
challenged provision unconstitutional because it violates based inequality
another fundamental right, namely the right of ownership.
Legislature favors a certain group of employers and employees
certain group without the preferential approach is based on objective and reasonable grounds
. An incorrect then apparently equally remarkable argument CMKOS
that even "private" employers to employees of its called.
Appointed positions to appeal. Called. private / non-government employer does not have to
Unlike employer "state" option to revoke its leading
employee outset, on the basis of law. NZP that not only interferes with the fundamental rights
"private" employers but also, quite unjustifiably
protects employees 'private' employers.
Option "to conclude an agreement" qualitatively equal opportunities dismiss an employee from his post
directly to the law because the employee usually
will not have this agreement in accordance with § 73 NZP enter, so the employer will have
no way to change the person leading and managing his
business. By NZP limit the possibility of these employers
regulate labor relations. Inability private employer as
owner (unlike public sector employers) flexibly and according to their wishes determine
leaders, senior staff who manage its
company, it may mean lowering the competitiveness of such
private employer, and therefore denies equal conditions of competition
151st According replicas ČMKOS warrants based inequality associated with
interference with the property rights of private employers basically only
General statement "different nature of public and private
conditions' Service Act, if necessary. the nature of the service.
But it does not follow from the explanatory memorandum to the government draft of the NZP or process
its discussion and approval. If ČMKOS justifies inequality
based essentially only the Civil Service Act, this justification
incorrect and inadequate since the circle of persons who shall be according to § 33 paragraph
. 3 NZP be founded Employee appointment, does not correspond with
circle of persons who should develop the employment potential appointment in accordance
called. Service Act. The petitioners emphasize that
§ 33 paragraph. 3 NZP contains a number of employers (resp. Employees), which is
Service Act does not apply (eg., State enterprises, educational
legal persons, organizations).
Baselessness unequal status between the "private" employers and employers' national
sphere "is the most evident precisely in cases of state enterprises, which are a standard part
competition. In this respect, therefore
objections ČMKOS fail completely and definitely does not show reasonableness
wording § 33 paragraph. 3 NZP, nor § 73 para. 1 and 2 NZP.
152nd The petitioners add - in connection with the allegation ČMKOS "
different nature" of government and private employees - that, first called.
Business law has come into effect, and therefore can not argue its content
one hand and employees so. Private employer should "maintain
loyalty to his employer," "must satisfy the statutory prerequisites
" and must "comply with labor discipline". This is not about
exceptional requirements applicable only to civil servants (in addition
only service contracts, which argues CMKOS), which would
justify inequality between them and private employees and the disparity between state and
153 above. In his reply, also denies that the petitioners have challenged the provisions of § 305, paragraph
. 1 NZP and § 306 paragraph. 4 NZP only in terms of absolute inequality
. Based inequality is not even in this case
objectively and reasonably justified; CMKOS has not explained why
general interest employer may not, in which a trade union
issue an internal regulation that would regulate the wage claims of its employees
if wage demands and rules addressing the collective agreement
. CMKOS then falsely claims that the appellant seeks to limit
freedom of contract and impose unlimited decision-making power
employers. The fact that the employer was entitled to issue
internal wage regulations in a situation where the salary was not negotiated in the collective agreement
(or when it gets for the employer acted
trade union organizations, but not by a collective agreement concluded)
definitely does not restrict freedom of contract and the employer does not give unlimited
decision-making power. There employer had no legal
according to the previous regulation, which allowed it. The petitioners also object to ČMKOS
allegations that call into question the right of employees to freedom of association and
exercise of trade union rights and that reject social rights of employees.
That would also employers where a trade union could
under specified conditions, adjust wage claims (and rules)
its employees internal wage regulation, if that was not restricted
collective agreement should not restrict the right of workers to freely associate
or other social rights of employees.
154th According to Petitioners in terms of constitutionality invading
collective bargaining, respectively. the obligation of employers to bargain collectively
or general obligation of the employer to inform the trade union organization
as employee representatives on certain, defined
facts like. In these cases a hit objectively and reasonably justified
which is justified by the general interest and where there is a relationship between the selected
adequacy rules and the aim sought to be achieved
. It does not meet the same requirements, for example.
Just petitioner challenged the ban on employers where a trade union
issue an internal pay regulation or restriction of privileges employer
issue or change the conditions of employment without the consent of trade unions;
Such interference objective and reasonable cause exists. While
appellants do not dispute precedence contractual arrangement (just for example. In
Collective agreement) before unilaterally issued an internal regulation.
Always the general principle that contractual arrangements claim takes precedence over
unilateral determination of entitlement or rights;
permissions on the employer with whom a trade union issue an internal
regulation does not change anything. There is no reason so that the employer could not modify
claims of employees (going beyond statutory regulation), if not so agreed
(or vymíněno) in the collective agreement.
155th CMKOS by replicas of trying to challenge the determination of the rights of employees
unilaterally by the employer, omits, however, that § 113 paragraph. 1 NZP (
which is mandatory in nature) enables negotiation or wage determination (or its components
) collective labor or other contract, regulation or internal
wage assessment. NZP therefore expressly allows
unilateral wage determination, which does not mean that it should take precedence
before contractual arrangements for her. Therefore, if wages and salaries
agreed in eg. The collective agreement, it would mean the impossibility
employer unilaterally change the amount of the agreed wage claims
employees. CMKOS also ignores the fact that wages may be determined by the employer to employees
unilaterally both internal
legislation, but also wage assessment. It is therefore paradoxical that
employer for which a trade union can not determine
employees wage entitlements unilaterally through internal
wage regulation, however, the unilateral wage determination wage assessment
for this case is not excluded. Why be so is not clear.
A "conflict" contractual agreement and the unilateral determination of wages while
not only for the employer with whom a trade union
but also the employer with whom trade union organizations do not operate in relation
eg. Labor contract or other contracts and internal regulation
(possibly. also said the wage assessment).
156th The replica also touches objections ČMKOS that if challenged
§ 46 and § 61 paragraph. 1 NZP in relation to employees who are not members of any
trade unions to carry out a general protective function
unions in the individual case, and that it is therefore not left
at will employee, whether or not it wishes to keep his personal business was discussed
unions. The petitioners point out that such an interpretation
is not possible because it would not respect the so-called.
Negative right coalition (Freedom) employees (Art. 27 of the Charter), would violate his contract
freedom and intruded into the privacy and personal human freedom -
employees (Article 7 and 8 of the Charter). The subject of 'consultation' may be
example. highly sensitive information of a personal nature relating to employee
associated with eg. a breach of discipline, his state of health or
unfulfilled requirements or prerequisites to work, etc.., which
employee not want to tell anyone else (nor union ) and
which is keen not to be disclosed to anyone (including trade union organizations
) or employer. If the employee does not want to be unionized
organized or "protected" trade union and unless you specifically
does not want his information to be made available on a
discussed with another entity (and its members) can not sort
"protective function" of trade unions constitutionally justified in striking
interference with constitutionally guaranteed rights and freedoms and the human will -
employees (trade union organized). For lack of objection
be considered according to the petitioners also claim that this procedure
(discussing an express disapproval employee) can prevent
unilateral transfers and depositions, respectively.
immediate termination of employment contracts before their implementation. According to the petitioners
"discuss" this force is not because it is consistently seen as some form of cooperation
. Did not discuss the causes
dismissal and immediate termination of employment, if necessary. transfer to another job, and therefore
not for that reason can not be inferred that it would be possible dismissal
like. prevent. It can not be assumed that the employer
generally terminated the employment of an employee or transferring to another job
unjustifiably, which is perhaps ČMKOS trying to evoke in its statement. Moreover, nowhere
neither guaranteed that the unions should
has always taken the "correct" view, which ČMKOS argument based on its way.
"Permission" to comment on some personal business to discuss personnel and
it should be by law
trade unions without exception, and even against the will of the employee concerned. CMKOS while
in its statement even expressly states that an employee can not
eliminate any trade union; It is also in spite of the provisions of §
286, paragraph. 2 NZP second sentence of the appellants considered dispositive
(both because of the wording of the end of the sentence ", unless the employee is otherwise
" and also about the possibility to derogate
in favor of the employees from the obligations set NZP declared in § 2 para. 1
NZP). The petitioners point out that the above statement and interpretation ČMKOS
again illustrate one hand neseznatelnost and unpredictability
contested provisions of § 2 para. 1 NZP, on the one hand and unreasonably persistent peace
mandatory nature NZP. Moreover, if the right of trade unions to discuss the matter
derived from 'representation' employees, not by
petitioners ask this authority higher than the Constitution itself right
employees (trade union organized) to freely decide whether he wants
be a trade union in a particular case "represented" or perhaps
"protected" or not. According to the interpretation of the CMKOS trade union unorganized
employee therefore did not have any opportunity to express and enforce
against trade unions and their willingness to protect their privacy and personal freedom
which the democratic rule of law can not be tolerated. From the statements
CMKOS also said to this point is obvious effort Replace with the interests and rights of trade unions
just above the interests of employers, as owners
but also the interests of the employees themselves. CMKOS in its statement
constantly arguing right to associate freely, but denies
right nesdružovat with which it is guaranteed
same Article of the Charter, and therefore must be protected to the same extent as the right to associate with
157th For all these reasons, the petitioners - a group of deputies - in its reply
insist on its proposal in its entirety.
158th The Constitutional Court in accordance with § 68 para. 2 of the
Constitutional Court first addressed the question of whether the statute unconstitutional
whose provision is claimed, was adopted and issued within the bounds
provided jurisdiction and in a constitutionally prescribed manner.
159 aircraft. It is the law no. 262/2006 Coll., The Labour Code. In this regard
Constitutional Court of the relevant parliamentary publications, data on the course of voting and any comments
Houses of Parliament found that
Chamber of Deputies of the Czech Parliament this bill duly approved
at its meeting on 8 . 2. 2006 (resolution no. 2180).
Senate of the Czech Parliament has rejected the bill at its meeting held on
29th 3. 2006 (Resolution no. 398). Deputies subsequently
at the meeting held on 21. 4. 2006 maintained the original bill (Resolution no.
2409). President of the Republic did not sign a bill on 10. 5. 2006
returned it to the Chamber of Deputies (print 1153/7). Voting on the bill returned
President of the Republic took place in the Chamber of Deputies on 23. 5. 2006
proposal was approved (Resolution no. 2647). After signing the Prime Minister was
Act was promulgated in the Collection of Laws in part 84 under No. 262/2006 Coll.
The Act was thus adopted and issued within the bounds set by
competence and in a constitutionally prescribed manner.
160th The Constitutional Court first examined whether, in the meantime not to alter or cancel any
contested provision and that therefore -
about them - can not stop the proceedings (§ 67 para. 1 of Act no. 182/1993 Coll.
| || 161st Constitutional court found that 1 1, 2008, Act no. 362/2007 Coll
. amending Act no. 262/2006 Coll., the Labour Code, as amended
regulations, and other related laws. This amendment is affecting
contested provisions NZP follows.
162nd amended provisions of § 33 para. 3 (which does not disturb the Constitutional court)
|| | "(3) the appointment of a senior post based employment
in cases stipulated by a special legal předpisem16a); unless it
special legislation is based employment appointment only
A) organizational units States7)
B) organizational department of government departments
C) the organizational department of the state podniku13)
D) of the organizational department of the state fondu14)
E) allowance organizace15)
F) organizational unit contributory organization
G) of the organizational department of the Police of the Czech republiky16). ".
163rd The provisions of § 33 was also added a new paragraph 4 is added:
"(4) The appointment under paragraph 3 shall be determined by whoever has jurisdiction
under a special legal předpisu16b); unless they belong to
appointment of a special regulation, is carried at the head
A) organizational units States7) leading superior organizational units
B) organizational department of organizational state leaders this
organizational unit States7)
C) organizational department director of the state enterprise State podniku13)
D) organizational department of the State Fund, which is headed by an individual
statutory body, the head of fondu14)
E) contributory organization founder
F) organizational department contributory organizace15) leading the
G) of the organizational department of the Police of the Czech republiky16)
police president. "
164th Previous wording of § 33 par. 3 NZP was:
"The appointment is based employment only at the senior organizational
components States7), the leading organizational units, organizational units
States7), directors of state podniků13), managers of organizational units
state podniků13), senior government fondů14) if it is in the forefront of their
individual body, leading organizací15 contribution)
heads of organizational units, contributory organizations and directors
school legal osoby16), unless special legislation provides otherwise.
Appointment is made by a person who is competent under a special
legislation or Branch Manager States7). ".
165th Related amended provisions of § 73 para. 1 was amended as follows
In § 73 para. 1 the words "competent under a special legal regulation
or Branch Manager States7)" is replaced
"appropriate for appointment (§ 33 para. 4)."
166th Related amended provisions of § 73 para. 2
beginning of the first sentence was amended as follows: In § 73 para. 2 the words "If the employer
other legal or natural person than specified in § 33 paragraph
. 3 "are replaced by" Where the employer is a different legal entity than
referred to in § 33 par. 3 or natural person. " (Note:
Related to § 364 paragraph. 3 after the semicolon is indeed
proposed for repeal, but amendment cited by Act no. 362/2007 Coll
. This provision is without prejudice and the Constitutional Court obviate .)
167th The amended wording of § 342 (which does not disturb the Constitutional Court)
been changed as follows.
In § 342 paragraph. 2, the words "work performed outside the employment relationship" shall be
168th NZP previous wording was:
§ 342 paragraph. 1: "Except in cases of continued trade according to § 13 paragraph
. 1 Trade Act, the death of the employer
employment relationship referred to in § 3, second sentence expires (§ 48 para. 4). ".
§ 342 paragraph. 2: "Labour Office according to the place of activity
employer under paragraph. 1 exposing employees whose employment
or an agreement on work performed outside the employment relationship ceases, at his request confirmation
on employment, on the basis of documents submitted by
169. The amended wording of the provisions cited NZP (with the exception of § 342
paragraph. 2) do not mean a substantive change in the relevant legislation.
Essence of this legislation remains unchanged, ie. The appointment as a way to give
employment is maintained only for employers who have
form of government departments or are otherwise connected to
state budget. Amendment brought only clarify the legal drafting adjustments
appointment and accurate determination of who is qualified to perform
appointment. Optically, as amended § 33 par. 3 point.
G) appears alone organizational unit within the Police of the Czech Republic. I
this addition has the nature of a formulation without regard to the nature of
adjustments as may be inferred that the Police of the Czech Republic within the meaning
to § 51 paragraph. 1 of Act no. 219/2000 Coll.
property of the Czech Republic and its representation in legal relations, as amended
Regulations, a government department. Putting this point alone is
obviously caused a new paragraph 4, which specifies who has the right to appoint a senior employee
. Due to this fact applies
reasoning and conclusions reached by the Constitutional Court reached.
170th The amended wording of § 342 paragraph. 2
may mean a substantive change in the structure of the employer's obligations, but the establishment of paragraphs 2
is only a consequence of the rules contained in paragraph 1, which the appellants
criticized. The aforementioned amendment does not mean interference in the way of solving
legal consequences of the death of the employer-physical person.
Given this fact does not change the arguments and conclusions reached
Constitutional Court in assessing this provision came.
171st Therefore, the Constitutional Court to proceed pursuant to § 67 para. 1 of Law no. 182/1993
Coll., On the Constitutional Court, agree.
A) General part of constitutional argumentation
172nd Following this finding, the Constitutional Court to assess the content
contested provisions of the Act in terms of their compliance with the constitutional order of the Czech Republic
by 87.1.ačl. 87. 1 point. a) of the Constitution.
173rd The Constitutional Court deems appropriate - because of the special importance and
content of the contested provisions of the legislation which affects this or that way
almost every individual in the state - at the outset of his argument
recall several fundamental principles and constitutionally | || approaches from which its activity is based and from which came in
174th It is also true that these general principles and doctrines gauged
Constitutional Court basically all of the contested provisions of the Labour Code.
General conclusions of this section must relate to their individual points
special part of constitutional argumentation; Of course - mutatis mutandis
- taking into account the specificities being specific
contested provision which justifies a particular emphasis in the general part of the already mentioned principle
detail. Therefore, though not always, among others.
Also for reasons of clarity and efficiency justification approach the Constitutional Court, as well as
due to the amount of the contested provisions is not a specific part
constitutional arguments for each provision again repeated what || | built is the essence of that constitutional principle or doctrine
Constitutional court; It is with respect to the relevant passage of this part
175th First, it is useful - to streamline things - to try to
summary of certain, mostly too general to the petitioners, therefore
opponents under the law, as well as some opinions of his supporters, who
, but in a very comprehensive form, sounded above.
176th The petitioners are protesting already against the atmosphere at the birth of the
law; claims in this regard that his preparation was carried out unpredictably and
that the Labour Code was adopted speedily, without the existence of a consensus among
social partners, namely between representatives of employers and employees
, even without a consensus in the governing coalition itself,
through publicly pronounced criticism and objections of unconstitutionality by some
legal experts. Thus, in particular, it failed to reach the necessary
social peace; As a consequence, among other things. negative opinion of the Senate and
president. The resulting version of the law apparently does not meet expectations
simple and understandable legislation and does a comprehensive and independent
legislation, if the labor code, among others.
Prepared by the delegation in relation to the Civil Code. Uncommitted legislation without
links to some related legislation essentially only amends
- the petitioners' view - the current rules and preserves
old principles based on different economic and social conditions
. The law in some of the contested provisions extends into
property rights in employment relationships, in others there
for invasion of privacy and personal freedom. The Labour Code has reportedly
few standards dispositive, and therefore does not respect the autonomous sphere
individuals or does not meet the requirements for flexibility in exercising
job. Contested by the apparently favors the collective bargaining
unions and ignores the right of employees to nesdružovat.
Particular, but - according to the petitioners - the new Labour Code undermines
recognizability of legality and legal certainty, complicates the possibility
Minimum of foreseeability of court decisions is
unintelligible, vague and does not allow participants to labor relations
adapt their behavior to him. New regulation of labor law, however, should
petitioners' view, reflect the requirements of the 21st century,
post-communist economic and social changes that bring
liberalization and to reduce the imbalance between the subjects of labor relations that
comply with societal needs and has its origins in the totalitarian regime;
Company apparently legitimately expected to introduce greater contractual freedom to
177 cells. In contrast, proponents of the Act contested legislation is unconstitutional and
compliant with international standards;
mandatory provisions guaranteeing a fixed position and adequate working conditions
employees, as well as their protection against unilateral termination
employment; But while apparently introducing greater contractual freedom and
creates a more liberal environment. Certain standards must be
guaranteed in the law, because in Europe the most common way to protect
form of collective agreements is now in the Czech Republic realistic because
only about 30% of the workforce is protected by collective agreements. Code
work was accepted procedure laid down by the Constitution, which prescribes mandatory
consensus even within the ruling coalition nor the social partners or by
professionals. Representatives of employers' associations is said from the beginning
opposed the draft Labour Code and refused to participate in its preparation
so that consensus was not possible. Motivation
application for annulment of certain provisions of the Labour Code is reportedly a political and not a legal nature
; it is a political dispute about liberal or social form
Labour Code. Proposers are apparently trying to turn the ideological and value
boundaries of the constitutional order, which guarantees a stark departure from
liberalism toward a particular state responsibility for the fate of individuals and society
. To bridge the possible ambiguities of interpretation then
standard and in accordance with the rule of law serves the judicial route.
178th From the above it is clear that opinions on NZP sharply divided
representative of the social groups most interested in his form.
The Constitutional Court emphasizes the fundamental principle that can not be the arbiter of political disputes
about whether the Czech Republic will have a more liberal or more
social labor code. State power shall serve all citizens and become
not bound to any exclusive ideology. The purpose of the existence of the Constitutional Court
protection of constitutionality and the only criterion is his decision
constitutional order which guarantees the inviolability of fundamental human rights
based on natural law. One of the cornerstones of building blocks
our constitutional order and content of the entire Charter of Fundamental Rights and Freedoms
- which is a part - is the free individual's equality in dignity and rights
. It is a recognition of the value of each person
as such, regardless of his abilities, knowledge and "usefulness" or benefit for the whole
, which of course also applies to the area of labor law
. How about instructing the history of totalitarian regimes, as well as help
labor laws often occurred nejhrubšímu
violations of human rights and the unfortunate social engineering, even to significantly contribute
itself the then illegal practice of public authorities.
Under the pretext of alleged public interest and phrases about historical necessity
needs of the nation and the common good are manipulating people's minds;
Result was eg. The enactment of job duties, work camps for
adaptable, so-called punishment. Freeloading like.
179th In light of these considerations, the Constitutional Court refers also to
doctrinal continuity of its case; due to the theses, spoken
especially judgments file. Nos. Pl. US 5/01 (Collection of Decisions, Volume 24,
judgment no. 149, promulgated under no. 410/2001 Coll.), Et al. Nos. Pl.
US 39/01 (Collection of Decisions, volume 28, judgment no. 135, promulgated under no. 499/2002 Coll
.). The Constitutional Court, among others. Explained that the decision making is entitled to judge a
constitutionality (or. Legality)
contested regulation and not its suitability and effectiveness.
Also in the present matter, when the case is called. Abstract review of norms, the
Constitutional Court deals only with the constitutional aspects of the contested
Provisions without stating their suitability and effectiveness, for example.
Terms of existence of a free market, and the like; It is called to assess the economic aspects
need and necessity for example.
various adjustments related to business due to the need to ensure individual,
often side by side or even opposing (alleged)
public interests. Selecting restrictive monitoring tools and measure their
application is primarily the task of the legislature. Only
Parliament as a representative body can in our constitutional system to take such steps.
The responsibility for recognizing problems that require regulation
choice of tools and effects that can sometimes be negative, in the first row
political; The Constitutional Court may, in this case in its legislative activity
only intervene if it finds unconstitutional.
Constitutional Court this argument (already can basically also apply when assessing
general assumptions regarding the Labour Code)
subscribes to an approach that takes eg. US Supreme Court has since ended with
practice to consider legislation economic and social
incompatible with absolutized contractual freedom and the right to property
, and acknowledged that the general definition of economic policy
is primarily a matter of political authorities (in this context see the New Deal F.
D. Roosevelt). When evaluating legislation is sufficient so.
Rational basis test, a cursory check whether the measures in place could lead to the objective pursued
. Inclination to rigorous evaluation of all the solutions adopted
labor legislation, would force the Constitutional Court to examine the necessity and usefulness
elected government policy and inclination to
some economic-political doctrine; however the Constitutional Court -
as already mentioned - is not and does not even
relative political neutrality of the Charter and the Constitution of the Czech Republic.
180th Democratic rule of law, unlike the totalitarian state constitutionally
provides space for the formation of various interest groups that eventually
as individual political parties or movements seek to promote their own ideas
obtaining a share of power in the free competition of political forces | || respecting fundamental democratic principles (Art. 5 of the Constitution).
Wins if this or that concept, the result should be fundamentally and generally legitimate
even if it were accepted despite the resistance of some social groups;
However, this does not mean that efforts to reach a compromise, or better yet a consensus
such important areas as it is for each individual area
labor law can resign. The final version would then be
least unstable and would not bring significant respect for the Code
regulating legal relations on the border between public and private law;
in modern legal concept, moreover, is no longer the boundary between public law and private
seen as sharply as in the past, so private
elements can often be traced in the legal relationship in principle
public and vice versa.
181st The Constitutional Court recalls that his job as a judicial body
protection of constitutionality (Art. 83 of the Constitution) in proceedings on the application for revocation
particular statutory provision also does not indicate a perfectionist
various inaccuracies in the law or instruct the legislature to modify preferable
not give the legislature detailed instructions on how the level
sub-constitutional law to deal with all situations which come into consideration.
Its constitutional duty is to assess whether the provisions
qualified under the legislation constitutionally stand or not.
182nd The Constitutional Court has repeatedly emphasized that the principle
constitutionally conforming interpretation of a statute or its individual provisions, respectively.
Another law takes precedence over his dismissal and that
duty of all public authorities to interpret and apply the law
particular perspective of the protection of fundamental rights and freedoms. He noted that
in a situation where a legislative provision allows
two different interpretations, one of which is in accordance with constitutional
laws and international treaties binding on the Czech Republic, and the second
not, there is no reason to abolish that provision. During his
application is the responsibility of all state bodies to interpret the regulation
constitutional manner. In a democratic legal state, which is
Seen primarily as a substantive rule of law, we must not allow the use
applicable statutory provision which conflicts with some of the fundamental principles of constitutional
183rd Fundamental rights and freedoms are under the protection of the entire judiciary,
not only the Constitutional Court. The guiding conceptual prerequisite
constitutionally guaranteed right to a fair trial under Art. 36 et seq.
Charter of Fundamental Rights and Freedoms is the decision of independent and impartial courts
according to the principles set out in the relevant legislation, but
in its individual provisions, such a process must also be realistic and allow
no reason not to distinguish between different entities.
Such a process, although it must be a literal interpretation of the relevant statutory provisions
allows leads to a direct intervention into the constitutionally guaranteed fundamental rights or freedoms
affected holders of public subjective rights and in the vast majority
well as their violations since
core principles of modern democratic law and constitutional law (Art. 1, paragraph. 1
Constitution) do not allow such a thing. And the essence of legal certainty as one of the attributes
law, also including
preserving acquired rights and the protection of trust in law, lies mainly in the fact that everyone can
rely on the fact that his state will provide effective protection his rights and
will help him to implement his subjective rights.
Obligation of the courts to find the law mean only direct, specific and explicit instructions
in the statutory text, but also the obligation to find and articulate what specific
law, even where it means interpreting abstract norms
constitutional principles, the provisions of the Charter of fundamental rights and freedoms
and liabilities arising from relevant international treaties. Of the many possible interpretations of a statute
therefore be applied in all cases such that
respects constitutional principles, and to repeal provisions of the law to be unconstitutional
proceed only if it is not possible to apply the provision
without would be a constitutional violation. The Constitutional Court is convinced that
room for such interpretation - in compliance with the above principles
repeatedly emphasized, this court - is given even if some provisions
affected by the petitioner (cf. Below).
184th One of the essential features of a democratic rule of law is
principle of proportionality, which implies in particular that measures restricting
fundamental rights or freedoms may not have negative consequences
exceed the accomplishments represented by the public interest in these measures.
The restriction of fundamental rights or freedoms may only rarely occur even
if they conflict with a public good (public interest);
Essential, however, in this context, the maxim that
fundamental right or freedom may be limited only in the event of an exceptionally strong and properly
justified public interest, while carefully preserving the essence and meaning
limited fundamental rights. The first condition is therefore mutual
benchmarking standing in the collision of fundamental rights and the public interest (ie.
False conflict, unlike the conflict between two fundamental rights), the second is the requirement
investigation of the nature and the limited fundamental rights respectively.
Freedom (Art. 4 par. 4). Balancing the conflicting fundamental rights
then as usual, consists of the following
criteria: the first is the criterion of suitability, the answer to the question whether
Institute restricting certain fundamental right permits
achieve the pursued objective, followed by the criterion of necessity
consisting of comparing the legislative means restricting a fundamental right, respectively.
freedom with other measures which permit achieving the same aim but
affecting the fundamental rights and freedoms, and continues criterion
comparing concerned, conflicting fundamental rights (see. eg.
Pl. US 40/02 Collection of decisions, volume 30, judgment no. 88, pp. 342,
promulgated as no. 199/2003 Coll.).
185th When considering the applicability of the principle of proportionality (proportionality)
not to see that the present matter is not always this principle
main criterion for consideration of the constitutionality of a particular statutory provision.
This is because the principle of proportionality is applied in particular in
Human Rights and Fundamental Freedoms (the Charter Chapter Two);
rights in economic, social and cultural, it is necessary to take into account Article.
41 paragraph. 1 of the Charter otevírajícímu wide space for the legislature when
choice of various solutions. Due to Art. 41 Sec. 1 of the Charter may not be
legislation in the strict respect of the proportionality of the objective which is pursued
control, ie. Does not need to be a measure in a democratic society
essential, as is the case with other rights which may be invoked directly from the Charter
(cf. However, for example. Art. 27 paragraph. 1, 2 and 3 of the Charter of rights and
cited therein, which are Article 41 paragraph. 1 limited).
Test the constitutionality of this effect goes through such a statutory framework with which you can check
watching a legitimate goal and that does so in a way that can b
as a legitimate means to achieve it, albeit not go
by means of the best, the best, most efficient and wisest
(reasonableness test - cf. also judgment file. Nos. Pl. US 61/04,
promulgated under no. 16/2007 Coll.).
186th Any legislative provision
democratic rule of law must also fulfill the conditions of clarity and certainty as to properly
petitioners refer; doubt on those particulars in relation to
specific statutory provision must achieve a particular
intensity that could lead to a vote of unconstitutionality and abolition
such provision, so not if it is possible to eliminate its use
customary interpretive approaches.
187th Sometimes it is not inconsistent with the Constitution the wording of a particular provision, but
loophole it creates. Therefore unconstitutional omission
legislature, which has the constitutionally unacceptable inequality (
doktrinárnímu the definition of the concept cf omission of the legislator. V. Šimíček,
Failure legislature as a violation of fundamental rights. In Ten Years
Charter fundamental rights and freedoms in the legal order of the Czech Republic and the Slovak Republic
. Eds. B. Dančák, V. Šimíček, Brno 2001, pp. 144 - 159
); These are often called. gap false, the content of which is
incompleteness of written law, compared with
explicit regulation of similar cases, ie. incompleteness terms of the principle of equality or from the perspective
general legal principles.
188th For investigated the matter, it is also important that the Constitutional Court has in a series
its decision (cf., Summarized eg. In Judgment. Nos. Pl.
US 33/96, Collection of Decisions, Volume 8, judgment no. 67, pp. 163 et seq.,
promulgated as no. 185/1997 Coll.) closer to interpret the content of the constitutional principle of equality
. So be especially repeat that it agreed with the understanding
equality, as already expressed by The Court has in its judgment of 8. 10. 1992
sp. Nos. Pl. US 22/92 (published as no. 11 and
Collections resolution of the Constitutional Court of Czechoslovakia), under which "the state of things, in order to ensure its functions
decided that certain groups will be less than the benefits
other. However, it does not act completely arbitrarily ... If the law determines
favor one group and at the same time sets disproportionate obligations
others, can be done only with reference to the public good. "
Constitutional Court of the CSFR thus rejected absolute understanding of the principle of equality and took
equality as a relative category, which requires in particular the removal
unjustified differences and elimination of arbitrariness. The principle of equality
thereby shifted into the area of constitutional acceptability of aspects
differentiating subjects and rights. Legal differentiation in the approach to certain
rights may not be a manifestation of arbitrariness, it does not follow, however
categorical conclusion that everyone must be granted every right.
Article 1 of the Charter of Fundamental Rights and Freedoms, moreover, can not be interpreted in isolation from other general
Articles 2-4 of the Charter, but on the contrary, it is necessary to hold a
as a single unit. Of these general provisions, it is clear that neither
fundamental protected values listed in Article 3 of the Charter
framers did not conceive as absolute. In the case file. Nos. Pl.
US 4/95 (Collection of Decisions, volume 3, judgment no. 29, pp. 209 et seq., Announced
under no. 168/1995 Coll.) The Constitutional Court. Found that inequality || | social relations, if it is to affect fundamental human rights, must reach an intensity
at least in a certain direction, on the very essence of equality
. This usually happens when a violation
equality is connected to violation of another fundamental right.
189th As the Constitutional Court also stated in its judgment. Nos. Pl. US 15/02 (Collection
decision, volume 29, judgment no. 11, p. 79 et seq., Published as no.
40/2003 Coll.) Constitutional principle of equal rights belongs to those
fundamental human rights which constitute the value system of modern democratic societies
. The principle of equality is a legal philosophical postulate that
is the level of positive rights guaranteed by the prohibition of discrimination.
Equality is not an unchanging category, as it undergoes development that its contents
especially in the area of political and social rights distinctly notes.
Likewise, international human rights instruments and many decisions
international supervisory bodies based on the fact that not every unequal treatment of different
subjects can be classified as a violation of the principle of equality
, thus as illegal discrimination against one group of subjects
compared to others. To make such a breach must be
several conditions are met, especially those that different entities
in the same or a comparable situation are treated differently
way without any objective and reasonable grounds
to put forward a different approach.
190th Here you can add that even the European Court of Human Rights in its settled case
similarly notes that the difference in treatment between
persons in analogous or comparable situations
is discriminatory if it has no objective and reasonable justification ie.
does not pursue a legitimate aim or if the means used are not proportionate to the aim pursued
. Also, the UN Committee for Human Rights in
application of Art. 26 of the International Covenant on Civil and Political Rights
repeatedly expressed the opinion that eliminating arbitrariness lies in the fact that not
permitting discrimination outside reasonable and objective criteria.
191st The Constitutional Court reiterates that only the above-mentioned, earlier in
rich jurisprudence further expressed the fundamental principles of the constitutional order of the Czech Republic
were steady with the help of interpretive practices
decisive criterion investigation and the contested provisions of the Code
work . If the Constitutional Court found that some of the contested provisions
interfere with these principles in a way that can not be justified constitutionally qualified
way, it was his duty as a guarantor of constitutionality
law accordingly, a derogation to respond. In
B) Specific part of constitutional argumentation
192nd Specific contested provisions are divided by NZP
thematic or logic circuits as follows:
A) derogation from the ZP + links to the Civil Code
§ 2 paragraph. 1, § 4, § 18 (part), § 325, 326
B) provision of various kinds
§ 13 paragraph. 2 point. g) - to secure an obligation, § 20 - relative invalidity
legal act § 342 - termination of the employment relationship, the employer's death
C) employment relationships based appointment
§ 33 paragraph. 3, § 38 par. 2, § 73 para. 1, § 73 para. 2, § 364 paragraph. 3
D) the rights of trade union general nature
- General part
- Specific provisions - § 24 para. 2, § 278, 281, 282, § 286, paragraph. 2
§ 287, § 305, paragraph. 1, § 321, paragraph. 2, 3 and 4, § 322
E) the right of trade unions on the transfer of work at the end
employment upon issuance of the Staff Regulations
§ 46, § 61 paragraph. 1, § 61 paragraph. 5, § 306 paragraph. 4
193rd The individual contested provisions, the Constitutional Court states the following
K § 2 para. 1
Contested provision reads:
§ 2 paragraph. 1
(1) The rights and obligations in labor relations may be adjusted
notwithstanding this Act if this Act expressly prohibits
or the nature of the provision that since it is not possible to derogate
. The deviation is also possible to edit the participants
labor relations, the provisions that refer to the use
Civil Code, unless this Act specified otherwise in
damages. The deviation is also possible by provisions imposing an obligation
, this does not apply when it comes to diversion in favor
employees. Deviation from the provisions contained in § 363 paragraph. 1, which are incorporated
European Community regulations, it is not possible, however
apply if the terms of diversion in favor of the employee.
Rights or obligations in labor relations can not be regulated notwithstanding
this Act in the cases specified in § 363 paragraph. 2.
195th The fundamental objection petitioners are directed specifically against the provisions of § 2 paragraph
. 1 of the Labour Code. This provision as a reflection of the constitutional principle
"everyone can do what the law does not prohibit" in their opinion
contradictory, vague and indeterminate and ultimately impracticable and
certainly does not constitute the declared freedom of contract. That opinion
widely warrant (see above).
196th The Constitutional Court points out that in the contested provision, respectively.
be implemented basic principle under the Constitution and the Charter of Fundamental Rights and Freedoms
known as the principle of "what is not forbidden is allowed."
Participants employment relationship has opened the possibility not only
regulate the rights and obligations otherwise than by law, but also the possibility to modify
what Labour Code does not deal with. Whatever the chosen concept
undoubtedly corresponds to the nature of private relationships
is generally more liberal than the previous arrangement, and if significantly expands the contractual freedom of the parties
is acceptable from a constitutional viewpoint that
this freedom was not unlimited, and that the
due respect for the principle of protecting the weaker side of the employment relationship. When defining and formulating
provisions which should be mandatory nature of the opinion, however, the Constitutional Court
legislature has manifestly failed to appreciate the fact that the chosen concept
presents for the participants of the employment relationship change in our fundamental
conditions - the right to for them to become law "interpretation".
Participants (particularly employers) labor relations are not suddenly
pattern to adjust their individual relationships, but raises them
new (and untested) duty - to examine the law in terms of whether
general admitted deviation from specific provisions of the Act
not prohibited, and what is more, if this is possible ban lump or whether
ban exists only deviation to the detriment of employees.
197th The Constitutional Court is forced to conclude that from the above perspective
contested provisions of § 2 para. 1 (in conjunction with the other paragraphs of this provision
and other relevant provisions of the Labour Code - especially
§ 363 paragraph. 1 2) the addressees complicated and largely well
vague. As a result of the chosen legislative technique can in many places
Labour Code is very difficult and vaguely infer what kind of ban
actually wanted the legislature to express. The characters of the rule of law and
among its core values are inseparable principle of legal certainty (no. 1
paragraph. 1 of the Constitution), which is a component of foreseeability of the law.
From this point of view, however, is the definition of mandatory rules in the labor code implemented
way too complicated and vague that violate the principle
clarity, and clarity of the rule of law, as was
Constitutional Court in a previous case re-formulated (cf..
Judgments. Nos. Pl. US 21/01, Collection of decisions, volume 25, judgment no. 14
promulgated under no. 95/2002 Coll .; sp. Nos. Pl. US 77/06, promulgated as no.
37/2007 Coll., Ref. No.. IV. ÚS 690/01, Collection of decisions, volume 29, judgment
no. 45, p. 417).
198th The Constitutional Court therefore agreed a proposal to annul § 2
paragraph. 1 except for the first sentence and fourth sentence, since it generally declared
liberal arrangement allowing for the extension of freedom of contract
employment relationship is a result of the establishment of the mandatory nature of the numerous
series of standards limited to the extent that the contractual freedom as the basis | || relationship between employee - employer denies, and if any space for freedom
will open and only and only in favor of one of
parties. Professional or business within the meaning of Art. 26 paragraph. 1
Charter can be based on the law limit; This restriction, however, must be done in accordance with Article
. 4 par. 4, by employing the provisions
about the limits of fundamental rights and freedoms must be preserved
essence and meaning, and such restrictions shall not be abused for purposes other than those for which they were enacted
199th The solution now adopted by the Constitutional Court reflects the abandonment of the principle
delegation and the inclination to the principle of subsidiarity
Civil Code (see paragraphs 208-210 to § 4). The provisions of § 2 para. 1 first sentence can be subsumed under
relatively vague legal standards, common in other legal
sectors which do not produce significant interpretation difficulties.
Legal standards of this nature opens a wide space for the general case law
Courts; a similar standard eg. the provisions of § 2 para. 3 of the Civil Code
(cf .: "Participants of civil legal relationships may
mutual rights and obligations to modify the agreement notwithstanding the law, if that law does not expressly prohibit
and if the
nature of the provisions of the Act does not imply that it can not be derogated. "), whose constitutionality the Constitutional court had
doubt (cf. decision Ref. No.. III. ÚS 104/04, Collection
decision bundle 35, judgment no. 146, p. 55). The Constitutional Court is
But on the other hand, aware that the interpretation of such a relatively indeterminate
concept may in certain labor relations issues undoubtedly bring
; You will not often be solved other than by amending the relevant provisions of the Labour Code
As an example, new legislation in § 114 paragraph. 3
made by Act no. 362/2007 Coll., That tried to eliminate 31. 12. 2007
very controversial issue, whether the Labour Code, unlike the legislation
earlier bans agreed upon in the contract of employment for senior employees
wages already considering the expected amount of overtime work.
200th For the reasons set out here therefore found unconstitutional by the Constitutional Court
neither part of the first sentence of the provisions of § 2 para. 1 the words "or the nature of his
provision that since it is not possible to derogate";
to be added that the repeal of that provision would make the Labour Code
somewhat legal standard completely unnecessary because even where there would
nature of the provisions of the Act clearly showed that from them contractually | || deviate not, it would nevertheless agreed allowable deviation.
It would, however, in its consequences, has made a number of provisions of the Labour Code
standard character rather "model statutes" and not the norm
characteristic that some of its provisions mandatory
governs whether private or public relation ships.
Two hundred and first Not only in terms of komparatistického (cf.
Already cited provisions of § 2 para. 3 BGB) stand the test of constitutionality as well
word "expressly" contained in the first part of the first sentence of the provisions of § 2 para. 1
Code work. In this context it is due is noted that it is desirable that
where he wants the legislature to express Imperative
certain statutory provisions, expressed this intention truly express communication, even though
thus explicitly excluding traktované will simultaneously (
sounding the phrase "or the nature of the provision that since it is not possible to derogate
") in other cases Imperative editing expressed only way
general formulation; thus the implicit statement follows then
task for jurisprudence and case law in particular interpret the limits within which you can
relatively indeterminate legal standard to apply.
202nd The provisions of § 2 para. 1 sentence, second, third and fifth
Constitutional Court observes that the purpose of public elements in the legislation
priority is to protect employees. This purpose is consistent with the constitutional order
, but also for its implementation is a requirement
proportionality in this context the need (subsidiarity, or use
lenient in terms of alternative legislative means
reaching constitutional for the purpose). In relation to dispozitivnosti
cogency and labor regulation method ensures
mandatory regulation against the use of public elements.
Requirement to minimize restrictions on freedom of contract, as well as the requirement of legal certainty are loaded
legislature obligations of these elements explicitly named. The enumeration method
may not be the solution; there are always provisions that should be
typically mandatory, but are not included in the list, as well as
provisions which by their nature are typically able, however, to
list - for no apparent reason - are included. In determining which
provisions are mandatory and which would be able, therefore, can not rely on
entirely objective criteria, but it is necessary to use a scale which allows
certain degree of discretionary.
203rd Therefore, after the cancellation of the second sentence of the provisions of § 2 para. 1 will flow
inability to deviate from the adjustment in employment relationships and the
provisions on compensation for damages from the nature of the provisions of the Labour Code.
204th The Constitutional Court found no reason to cancel the fourth sentence
provisions of § 2 para. 1 ( "deviation from the provisions set out in § 363, paragraph
. 1, which are incorporated European Community regulations;
Is not possible, this does not apply when it comes to diversion in favor
employee. "). The provisions of § 363 paragraph. 1 of the Labour attacked
proposal was not, and neither the Constitutional Court does not find anything in his text, what would
testified for the conclusion of its unconstitutionality. But then the fourth sentence
provisions of § 2 para. 1 nenapadenému pertaining to the provisions of § 363 paragraph.
1 of the Labour test of constitutionality also stand; while its abolition would
became uncertain whether the defiance it is still not possible from the provisions of § 363, paragraph
. 1 of the Labour depart (which could be inferred from the nature
this provision); such uncertainty would not already
terms of readability and clarity of the rule of law is desirable. Neither postscript
permitting diversion in favor of the employee is no reason to disturb
alleged unconstitutionality. It is a typical expression of the free (and
political) considerations of the legislator; that derogation is not yet possible
impose on one side of the employment relationship the other side (ie.
employee of the employer); because thus remains in that range
maintained sided autonomy of the will, it can not be said in relation
come to the conclusion that any inequality or discrimination - especially of course
employers - the parties mentioned legal relations.
205th Fifth sentence of § 2 para. 1 imposing a ban on departing adjustments
rights or obligations in labor relations from the legal regulation in cases
specified in § 363 paragraph. 2 is a provision superfluous, since
provisions of § 363 paragraph. 2 Labour Code states that
provisions are mandatory and participants are not derogate from them.
Last-mentioned provision (§ 363 paragraph. 2) are not designed to abolish, and
why it did not address the Constitutional Court.
206th The Constitutional Court therefore, in the contested provisions of § 2 para. 1
Labour Code abolished only the second sentence, third and fifth to conflict with Article. 2. 3
Constitution and Art. 2. 2 of the Charter.
K § 4, § 18, the words "§ 48, 49 ', § 325 and § 326
Contested provisions added:
Civil Code on labor relations pursuant to this Act
only apply if this Act expressly provides.
Legal actions are governed by § 34-39, § 40 para. 3-5, 41, 41a, 42a, 43,
43a, 43b, 43c, 44, 45,
, 49a49a, 50a, 50b and 51 of the Civil Code. The contract according to § 51
Civil Code, however, must not contradict the content or purpose of
(1) liabilities mainly arise from contracts governed by this Act, as well as
Civil Code; but they may arise from other agreements in the law
untreated and of mixed contracts containing elements of various agreements.
(2) The obligations arising from contracts not regulated in the law is necessary
apply the provisions of the Act governing the obligations closest to them.
Obligations in labor relations are governed by § 488, 489, § 491, paragraph. 2
§ 492, 494, 497 of the Civil Code that severance is severance
under this Act, § 498, 516 to 518 of the civil Code that
§ 518 of the civil Code shall not apply to employment contracts, agreements
on work performed outside employment or collective agreement, §
519 to 523, 531, 533, 534, § 544 paragraph. 1 and 2, § 545, 559-573, § 574, paragraph
. 1, § 575-578, 580, 581, 584 to 587 of the Civil Code.
-208. The petitioners' objections directed against the modified law related to
Civil Code. For this reason, they are attacked by the provisions of § 4, § 18
words "§ 48, 49 ', § 325 and § 326. The petitioners argue that the concept of using
delegation in connection with several ways of defining and dispozitivnosti
cogency provisions of the new Labour Code
legislation Labour Code factually incorrect, senseless and incomprehensible
founding inapplicability of many of its provisions.
Leads so apparently the cogency of the whole of the Labour Code, which does not even
individual provisions (alone), nor his proclaimed intention
makers. The concept of delegation of the Civil Code establishes legal uncertainty and instability
(conflict with Art. 1. 1 of the Constitution) and brings considerable
application problems due to legal uncertainties and neseznatelnosti
standards. Thus contradicting the principle of so-called. Quality and denies the rights and confidence in
right. The petitioners point out that the application of certain provisions
Civil Code, the Labour Code to which it refers, raises interpretative
And application problems in relation to employment for other
labor relations, which at the same time also established a significant legal uncertainty
. Such provisions are § 573 and 575 (using
applicable under the provisions of § 326 of the Labour Code) of the Civil Code.
Non-applicability of the concept mentioned delegation is also evident in relation to
provisions of § 491 paragraph. 2 of the Civil Code (applicable through
§ 326 of the Labour Code), because according to him, should be applied mutatis mutandis
Civil Code; However, this conflicts with the principle of delegation and the impossibility
application of other provisions of the Civil Code, than that is
Labour Code explicitly referenced. The main interference with the legal certainty
participants in an employment relationship, however, is the view of the petitioners
recently adapted the "withdrawal". § 18 Code
work refers to § 48 of the Civil Code, according to which
"withdraw from the contract if it is stipulated in this Act or
participants agreed". § 18 of the Labour Code in connection with § 48 of the Civil Code
therefore allows you to negotiate in labor relations
option of withdrawing from the contract, without giving any
exemptions, which leads to the conclusion that the possibility of withdrawal can be arranged
in the employment contract. Withdrawal in labor relations
(hence the employment contract), however, is clear from the provisions of § 49 OZ
(using the applicable § 18 of the Labour Code) and from § 497
§ 517 par. 1, § 561 paragraph. 2 and § 575 paragraph.
3 of the civil Code (§ 326 through the applicable Labour Code). Possibility to use
Institute withdrawal leads - in the opinion of the petitioners -
to gain legal uncertainty of participants in labor relations because it would
due to withdrawal from the employment contract could lead to the fact that
employment contract canceled from the beginning and it will be treated as being
been concluded. Those legal uncertainty extends into law
public, in terms of pension and social security
. It is therefore a significant intervention into the social security
participants of this entire employment relationship.
209th Said objections against the relationship between the Labour Code and the Civil Code
possible from a constitutional perspective
divided into two groups. The first group are the objections relating to the provision
§ 4 of the Labour Code, which is enshrined as a fundamental principle of delegation
principle governing the relationship between the two codes. The Constitutional Court
objections of the petitioners that the application against the principle of delegation argued
said. Although the general theory of law distinguishes between two basic options
that can be taken to address the relationship between the two laws have the same legal force -
principle of subsidiarity and the principle of delegation. The Constitutional Court, however, found no
delegation principle, as enshrined in § 4 of the Labour Code in relation to
Civil Code, in harmony with the principles of the rule of law (Art. 1 paragraph.
1 of the Constitution). It is axiomatic that civil law is general private law
(in other words: the Civil Code is a general private regulation)
subsidiary force against other private sector (private
other regulations). Regulations governing these sectors (such
other private law) should always prevail, but
does not provide a specific question, started a general civil law.
This also corresponds to the historical development of private law, which was originally
undifferentiated; to gradually began to separate from him right
business, labor and family. One reason for this differentiation was
felt the need for a different rule extent party autonomy and protection
one side compared to the general civic legal regulation. Delegation method used in §
4 of the Labour Code of subsidiary application of the Civil Code
labor relations considerably restricted, which to some extent
tore apart the basic functional links to general private law and
simultaneously brought to a considerable labor relations uncertainty.
The Constitutional Court considers that the various references in the provisions of the Code
work can not cover all necessary situations that may occur
labor relations; if
Labour Code did not contain an explicit reference to the Civil Code, respectively. if it were
this link incomplete, it would be the Civil Code (due selected
Methods of delegation) as a general rule used. Thus, for example. Would not be clear
who is in labor relations act for the person whose capacity to
legal capacity was limited. When excluding general subsidiarity
Civil Code could thus arise uncertainty, such legal regulation
will manage the resulting relationships if Labour Code
not have the legal situation envisaged hypothesis relevant standards
solutions. That uncertainty in labor relations does not correspond
principle of predictability of the consequences of the legislation, and therefore not as
stated above, in accordance with the principles of the rule of law within the meaning of Art. 1
Constitution, which must be considered normative content of each
legal act. Therefore, the Constitutional Court granted the petition to annul § 4 of the Code
210th After the abolition of § 4 remained in the Labour Code
number of provisions which are based on the principle of delegation. If one of them
designed to abolish the Constitutional Court dealt with them and draft decision;
about the other regarded themselves as competent, so is beyond the scope of the proposal
identified and abolished. If the legislature itself
such provisions of the Labour Code does not exclude, they can be considered as a consequence of the general principle of subsidiarity
Civil Code superfluous.
211th In the given context, the complainant also
provisions of § 325 and 326 of the Labour Code on the grounds that its applications - more
application of the provisions of the Civil Code by reference in § 326
- may be disrupted social and legal security for employees, because general
institutes governed by general provisions of contract law may
negative impact on employment and lead to its demise regardless
for termination of employment. The Constitutional Court concur with this objection, because
this apparent contradiction can be removed by a constitutional
commentary, based primarily on the systematic organization of the Code
work. In the Constitutional Court, the provisions contained in Part
thirteenth Labour Code (common provisions), which are also included
contested provisions of § 325 and 326 apply to employment and other basic
labor relations they are arranged in separate sections
Labour Code (employment in the second part;
agreements on work outside employment in the third part) if, unless these parts
special treatment. Among the parts regulating the basic
labor relations (but also among other parts) and parts of the thirteenth
- Common provisions - there is a relationship special and general.
Common provisions - as mentioned above - are applied if unless the
specific parts of the Labour Code specific treatment.
Modifying specific example. Part Two, Title IV. on termination of employment (§
48 et seq.). In that case, the provisions of the Civil Code
(eg. § 575 of the Civil Code - impossibility of performance)
applicable pursuant to § 326 of the Labour Code, shall not apply to employment
relationship if the Labour Code addresses the individual institutes otherwise.
Constitutional Court against the proposal to annul § 325 and 326 of the Labour Code
212th The petitioners' objections was directed also against § 18 if
refers to § 48 and 49 of the Civil Code. The Constitutional Court
affirm. Using Institute withdrawal laid down in
cited provisions of the Civil Code for withdrawal from
legal actions in labor law, specifically the employment contract, along
is truly brings a high level of social insecurity;
allows bypassing the treatment of post-employment and violate the principle of stability
working process as one of the fundamental principles that dominates the possibility
end of this basic employment relationship.
213th Withdrawal from a contract of employment, while not institute that should be excluded
; However, it is necessary that in the legislation were set
such limits that are preventing its misuse. Such an arrangement, however
labor law is missing. Original finish in Act no. 65/1965 Coll.
Admitted in § 245 paragraph. 1 (although it petitioners in their
objections explicitly shown) the possibility of negotiating the reasons for withdrawal from the contract
participants themselves, as well as the possibility of another
effective date of such termination (§ 245, paragraph. 2 of the original Labour Code); this
Treatment coincided with the regulation contained in the contested provisions of § 48 and 49
Civil Code. Compared to the current legal situation, however
original Labour Code was in § 245 paragraph. 3 contained
rule that the employment contract can withdraw only as long as the employee
failed to start work. For comparison, in the Slovak legal
treatment, where the authors have previously suggested solutions binding general institutes
labor law institutes a general civil law (although the principle of subsidiarity
Civil Code relative to the first part of the Labor Code - Law no. 311/2001
Z. z.), considered necessary to § 19 para. 2 state: "
From an employment contract may resign, only until the employee nenastúpil
to work on the agreed day without it, he would in fact prevent obstacles in
work or a week neupovedomí employer on this obstacle.
". The new Labour Code will not address this issue directly and merely refers
(§ 18), the provisions of the Civil Code, which - as mentioned above -
not constitutionally acceptable.
214th The Constitutional Court has in a number of cases referred to the so-called.
Unconstitutional gap (silence unconstitutional omissions of the legislature), consisting
possibly that was not adopted anticipated legislation (cf..
Eg., Constitutional Court in the matter under file no. Nos. Pl. US 36/01,
ECR, volume 26, judgment no. 80, promulgated as no. 403/2002 Coll
.). From the prevailing opinions of the Constitutional Court on this issue
it is possible to infer that the Constitutional Court understands the gap in the legislation as unconstitutional
Only if that is not the lack of a constitutional interpretation of the current law
removed. It considers unconstitutional and such an omission
legislature, which has resulted in unacceptable zstavně
inequality (see the cited Constitutional Court decision. Nos. Pl. US 36/01).
The issue of unconstitutional gaps can still point to the conclusion of the Constitutional Court
in the case file. Nos. Pl. US 15/04 dated 30. 11. 2004 (ECR,
volume 35, judgment no. 180, promulgated under no. 45/2005 Coll.), In which it declared that
"unconstitutional provision in question it is not apparent from the analysis
that provision alone, but especially from within the constitutional
contained gaps, which the constitutional court states. With regard to the need to remedy unconstitutional
current state of the Constitutional Court is of the opinion that the removal
unconstitutional gap in the law is necessary for positive action
lawmaker whose pulse may be only cancel individual
provisions of the Act, which inherently unconstitutional gap contains ... ".
215th This conclusion, in the opinion of the Constitutional Court ruling also applied
possibility of withdrawing from the particular employment contract, which - along with other legal acts
- regulated in the contested provisions of § 18, and his
through in the Civil Code (§ 48 49 civil Code).
216th Generally speaking, we can add that labor law must protect employees
against any form of coercion, leaders in principle to allow
arbitrary approach by the employer to terminate the employment relationship
. It is a manifestation of the protective function of labor law and stability
employment. The possibilities of constitutional interpretation is
because in this case the Constitutional Court skeptical; legislation
there should be as transparent as possible. In modern democratic legal state
is not only important how the laws are able to interpret
courts, but also how they will be interpreted by the general public
as increased legal uncertainty, gradual
the erosion of the credibility of the rule of law.
217th The principle of legal certainty and predictability acts of public power
although not among the absolute category, superior
other basic components of a constitutional state; However, it should be emphasized that the principle of legal certainty
lies mainly in the fact that everyone can rely on the fact that he
State provides effective protection of his rights (that he will help in the realization of its
subjective right) and that it also affects only
law envisaged sanctions if they break law.
Is a prerequisite for adequate recognizability and predictability of legal norms
decision of a state authority. The principle of legal certainty, including
preserving acquired rights and the protection of citizens' trust in law, that in itself
subsumes particularly effective protection of the rights of legal entities and
Predictability of the process of the state and its institutions. The Constitutional Court therefore given
provisions considered discordant with the constitutional order, both because
incurred unconstitutional gaps - as already noted - partly because of the violation of the principle of legal certainty
(Art. 1, paragraph. 1 of the Constitution) how well above
218th Therefore, the Constitutional Court cited the provisions of § 18, the words "48, 49"
§ 13 paragraph. 2 point. g)
Entire § 13 para. 2, including the contested letter g) reads:
§ 13 paragraph. 2 point. g)
) May not transfer risk from dependent employment to an employee
B) must ensure equal treatment of employees and comply with the prohibition of discrimination
employees, as well as individuals aspiring
C) must comply with the principle of providing equal wage or salary and other pecuniary
performance and performance of monetary value, or
pay for equal work and work of equal value,
D) must provide employees information on employment relations and ensure
discuss with him
E) must familiarize employees with the collective agreement and internal
F) not be an employee for breach of duty arising from his employment relationship
impose monetary sanctions nor is it to ask
; It does not cover damage for which the employee is responsible,
G) shall not require or arrange to secure an obligation in an employment relationship
, with the exception of the non-competition clause and deductions from income
H) may temporarily assign an employee to work for another legal entity or natural person
just under § 2 par. 5, except in cases
deepening and upgrading of skills for other legal or natural persons
(§ 230 paragraph. 5 and § 231 par. 3).
220th The petitioners consider that provision for interference in property
rights protected by Article 11 of the Charter. The new regulation is in their opinion
also contravenes the principle of equality. There is apparently no legitimate
reason for which the employee should be protected as a debtor for
case that behaves and acts unlawfully.
221st The Constitutional Court this objection nepřisvědčil. In his opinion, the contested provision
interference with the property rights of the complainant does not;
the attributes of property rights is not entitled to the collateral security.
Labour Code gives the employer as a general hedge
Institute, whose use is not limited deductions from wages, which in addition to securing
functions directly fulfills the function of reimbursement; further normalizes further
Reinsurance Institute, and a penalty in the context of a competitive
clause under § 310. It is true that compared to the previous legal
finish employer can not use the concept of liability hedging and collateral
law, which were limited in the original legislation
anchored. It can not say, however, that the exclusion of these institutes has
constitutional level, and that interferes with the property rights
employer. At the same time also can not agree with the opinion of the petitioners
excluding the possibility that other security obligations is unreasonably protected
employee who behaves and acts unlawfully. This argument is not
possible because security institutes have in principle
punitive nature and is not to penalize for possible illegal conduct due
side. Alone Labour Code governs the institutes, which can be described as
penalty for the unlawful conduct of an employee (including compensation for damage caused
); security institutes then next to them represent only
ancillary tool for securing permission of the employer.
222nd The alleged breach of the principle of equality would be more related to the question of what
security institutes can use the employee to ensure their
claims against employers. There is new legislation
much different from that in the previous Labour Code, as collateral receivables
employee to the employer no hedging Institute does not explicitly
. Through the provisions of § 326 of the Labour Code can be
apply the provisions of § 544 paragraph. 1 and 2 and § 545 of the Civil Code
(a penalty); its use to ensure workers' claims has
but rather theoretical in nature, since the negotiation of contractual penalties
would have to be accepted by the employer, which hardly seems to be a real step.
223rd The Constitutional Court therefore, in the absence of other legislation
hedging institutes unconstitutional gap in the law and sees
proposal to repeal § 13 para. 2 point. g) of the Labour Code failed.
K § 20
Contested provision reads:
If it is a ground of invalidity of a legal act, it shall act as legal
valid if the person who is such an act of prejudice, invalidity
unsuccessful; It does not apply in the case of a legal act establishing
employment or to conclude an agreement on work performed outside the employment relationship
. Nullity can not reach the person who he has caused.
The same applies if no such act was done in the form required by the agreement of participants.
225th The position of the Labour Code to the principle of relative invalidity
legal acts petitioners consider contradictory to the principles
democratic rule of law; It is unlike the provisions of the Civil Code
, which is generally based on their absolute invalidity and relative invalidity
applies only to certain enumerated cases
. General anchoring relative invalidity (except
legal acts directed to the creation of employment or the conclusion of agreements
work outside employment) points to the fact that all acts
under the labor law, be invalid (and because of such reasons that
other private relations would be considered absolutely invalid
) will be in terms of the new Labour Code considered valid
and in many cases even without an opportunity to reach their invalidity.
226th The Constitutional Court of the petitioners nepřisvědčil. General Theory
law distinguishes invalidity of legal acts with absolute and relative
defined legal effects and use. You can not therefore use one or
second method, or a combination of both, seen as a violation of constitutionally guaranteed
fundamental rights and freedoms, and constitutional principles at all.
It is true that the contested resolution is not very usual; In addition, users
original legislation were not accustomed to this way because
former Labour Code was based on absolute invalidity and relative invalidity
been enshrined only in the context of invalidity
legal actions aimed at termination of employment . Despite it
this solution within the boundaries of known law, the law of qualified utilized and
. In the Constitutional Court can not agree with the idea
that the wording of the contested provisions that, in the case of invalidity
treaties and agreements, nobody will be able to call nullity, because words
"been caused by" not interpretable in terms caused
"exclusively". The wording of the second sentence of the contested provision "
Invalidity shall not reach the one who caused it himself.
"Can be clearly inferred that if
agreements negotiated between the two parties, it is always two who caused an invalid.
As a rule, it will be possible - sometimes harder, sometimes more easily - to prove that
party annulment of the relevant legal act has caused, or her
cause a higher rate. It can not be overlooked that in labor relations
it is fundamentally an employer who is
Potentior pars and usually in the right orientovanější than the employee.
227th On the other hand, the Constitutional Court concluded that if
Labour Code based on the principle of relative invalidity of legal acts
does not contribute to the legal and social security for the participants basic
labor relations, if certain legal acts (working | || contract, appointment, contract for work or contract of work
) are excluded from the general regulation and annulment is solved by means
absolute nullity. In his opinion, the application
absolute invalidity of legal acts aimed at the establishment of basic
labor relations would ultimately mean approbation
presence known. Factual labor relations, because
absolutely invalid legal act can not establish a valid legal relationship. It is therefore zi
terms of social and legal security of participants must leave here
relative invalidity; On the one hand it enables participants to invoke the nullity
such legal act, on the other hand - if it is not void
applied - there is (despite the flaws of the legal act)
basic employment relationship, which provides its subscribers
sufficient legal protection.
228th The Constitutional Court therefore reiterates what has already - in connection with the adjustment
labor law in the Czech Republic and its connection
on the principle of legal certainty and transparency in the legislative solutions and predictability
acts of public authorities - has repeatedly expressed; in the legal
adjustment it is necessary to prefer enumerated attributes of the rule of law and
vote as clear and nejurčitější formulation. In addition
inconsistent with the principle of legal certainty (Art. 1, paragraph. 1 of the Constitution), the Constitutional Court found near
that provision in principle unjustified and disproportionate interference with the autonomy of the will
respectively. freedom of contract labor
relationship. This intervention also led to violation 2.3čl. 2.
3 of the Charter of Fundamental Rights and Freedoms.
229th Therefore, the Constitutional Court annulled the provisions of § 20 first sentence as part
semicolon in the words "; It does not apply in the case of a legal act
towards creating employment contract or the conclusion of agreements on work performed outside
Contested provision reads:
(1) Except as continuing trade in accordance with § 13 para. 1
trade law, the death of the employer's employment relationship
referred to in § 3, second sentence expires (§ 48 para. 4).
(2) The Labour Office competent at the employer's activities in accordance with paragraph 1
exposing employees whose employment or
agreement on work performed outside the employment relationship ceases, at his request, confirmation
employment, on the basis of the documents submitted by the employee.
231st The petitioners are challenging the provisions of § 342 of the Labour Code, it is said
interference in the rule of law (Art. 1, paragraph. 1 of the Constitution) and
property rights (Art. 11 of the Charter) as well as in business law (Art. 26
Charter). The contested provision is ambiguous treatment
transfer of rights and obligations of labor relations in the event of death
employer who is a natural person. Legislation, implying that
except in cases of continued trade according to § 13 para. 1
trade law employment relationship, the death of the employer-physical person
expires, represents not only a significant interference with the legal certainty heir
deceased employer-natural person, but particularly significant intervention into
legal certainty for employees themselves.
232 interface. The Constitutional Court this objection nepřisvědčil. The new legislation is
terms of legal certainty, the existence of an employment relationship
clearer than the text contained in previous legislation. On the one hand
allows the continuation of trade where the persons listed in §
13 paragraph. 1 are interested in continuing the business of the deceased
entrepreneur-individuals, thus creating a springboard for subsequent transition
rights obligations arising from labor relations; On the other hand, where
not given a body capable of continuing the trade, led the death
employer-natural person to termination of employment relations.
Legal arrangement thus avoids an unclear situation caused by previous finish; ie.
consequences occurred and on what legal grounds ended
labor relations if they were not heirs, or the heirs
23.3. New legislation contained in § 342 of the new Labour Code
Although in essence changing the basic definition of the legal consequences of death
employer-natural person and that his death Employment Relations
lapse; the exclusion of the rights and obligations but not absolute
due to the fact that the transfer of rights and obligations (resp.
exclusion of termination of the employment relationship) is admitted in the event that the continuation of trade
according to § 13 para. 1 Trade Act. According to the cited provisions
Die if the entrepreneur can continue to trade until the end of the consultation procedure
heritage administrator of inheritance, the heirs of the Act, unless
testamentary heirs, heirs of wills and a surviving spouse or partner, and || | if not the heir, if the co-owner of the property used for business operation
or surviving spouse or partner
meets the conditions specified in subparagraph c), if the co-owner of the property
used to operate a trade, if the trade
heirs do not continue. Given the wide range of entities that are under the preceding provisions
entitled to continue to trade, but will be cases where
Employment relationship, the death of the employer-natural person ceases
very rare. In the opinion of the Constitutional Court rules on the contrary contributes -
unlike the petitioners' claims - for greater legal and social security of workers
, which is also one of the important tasks of the work
234th Constitutional Court - in this situation - in the contested provisions of § 342
violation of property rights (Art. 11 of the Charter), business law (Art. 26
Charter) and interference in the rule of law (Art. 1, paragraph. 1 of the Charter )
sees. Therefore, the proposal to repeal this provision failed.
To § 33 par. 3, § 38 par. 2, § 73 para. 1, § 73 para. 2 (
beginning of the first sentence), § 364 paragraph. 3 (semicolon)
Contested provisions are added (before the amendment made by Act no. 362/2007 Coll
. - Cf. Part XI.)
§ 33 paragraph. 3
(3) The appointment is based employment only at the senior
organizational units States7), managers of organizational units
organizational units States7), directors of state podniků13)
heads of organizational units of state podniků13), senior government
fondů14) if it is in the forefront of their individual authority leaders
heads of organizational units, contributory organizations and directors of school legal osoby16)
unless special legislation provides otherwise. Appointment is made by a person who
is competent under a special regulation, or
Branch Manager States7).
§ 38 par. 2
(2) employment-based appointment of the provisions on labor
ratio of an employment contract.
§ 73 para. 1 and 2
(1) In the cases referred to in § 33 par. 3, the person who is competent to do
under a special law, or the head of the organizational unit
States7), a senior employee from the work place
appeal ; senior employee may also waive this place.
(2) Where the employer is a different legal entity or natural person than
referred to in § 33 par. 3, may be with a senior employee agreed
possibility of removal from post, if also agreed that | || senior employee may waive this place.
§ 364 paragraph. 3 (after the semicolon)
(3) Working conditions established under the existing laws
selection or appointment shall be deemed employment relationships based business
It does not apply in the case of employment
A) the branch manager of the State 7)
B) senior official and head of úřadu104)
C) of the organizational unit of the organizational unit States7)
D) the Director of Public podniku13)
E) of the organizational unit of the state podniku13)
F) the head of the state fund if it is at the head of an individual
G) Head contributory organizace15)
H) of the organizational units of subsidized organizace15)
I) the director of a school legal osoby16) and
J) the appointment is regulated by specific legislation.
236th The petitioners challenge the provisions relating to the commencement of the employment relationship
appointment, arguing that limit this form of an employment relationship
only differentiating some employers to "state" and
"non-state / private" means a violation of Art. 1 and Art . 3. 1 of the Charter, and
that ultimately gives rise to an unequal position of senior employees
working with these two "types" of employers.
Simultaneously consider such differentiation and admit the possibility of appointing senior staff
u "private" employers for interference with property rights
employer, and therefore in breach of Article. 11 of the Charter of Fundamental Rights and Freedoms
237th The Constitutional Court of the arguments of the petitioners nepřisvědčil. Generally
question of equality numerous statements from its
decision may be inferred that a legal framework that favors one group or
category of persons over another can not be itself without further described as violation
the principle of equality, as the legislature has a certain
discretion to decide whether such preferential treatment or not.
However, the legislature has to make, that the preferential access
based on objective and reasonable grounds and that between this objective and
means to achieve a reasonable relationship existed.
238th Substance, then it can be said that the appointment within the meaning of § 33 para. 3
Labour Code is regulated as a way of his employment there,
where the employer is the state (its organizational units and other entities linked to the state
- state budget). In the Constitutional Court
can be inferred that through the contested provisions listed
employers to implement state policy and performs the functions of the state;
Why the state should have a decisive right to determine who will act on his behalf
(or in some sense for him) or to carry out its tasks. Such authorization
state unambiguously corresponds to an appointment that has
constitutive nature. In this context we can also point to the Act no.
218/2002 Coll., On service of state employees in administrative offices and
remuneration of these employees and other employees in administrative offices
(Service Act), in which appointment as adjusted basic
way the employment relationship. Since that Law has deferred
efficiency, it is appropriate that the Labour Code itself such a way
creation of employment for senior staff performing specified functions
for employers listed in § 33 par. 3, admitted ,
because it applies to these employment relationships.
Similar differentiation also appears in the ways of remuneration; salary on a contractual basis with
"private" employers pay for "state" of employers (§ 109
Labour Code, which, however, the constitutional complaint is not infected) .;
justification for this difference can be kept the same arguments.
239th In relation to the constitutional principle of equality, which requires - as many times
Constitutional Court stressed - especially the removal of unjustified
differences and elimination of arbitrariness, it can be deduced that the nomination as a way
creation of employment within the meaning of the contested provisions of § 33 paragraph. 3
Labour Code is not constitutionally justifiable and this principle
inconsistency, since it concerns precisely and only state employees, his
organizational units and bodies linked to the state (through the state budget
) . Hence pursues the legitimate interest of the public.
240th If the Constitutional Court does not question the appointment by
employers listed in § 33 par. 3 of the Labour Code, it can not be
satisfy even the petition to annul § 38 par. 2, § 73 para. 1, § 73 para. 2,
§ 364 paragraph. 3, in which the appointment and the related removal
senior staff of jobs continue to be adjusted (NB .:
to the provisions of § 364, paragraph. 3, however, still see below).
241st In contrast, the employment contract as a legal fact constituting
employment clearly better suited to the principle of contractual because
creates space for the application of emerging willingness on both sides of the legal
relationship. It is therefore appropriate to emphasize the status of the employment contract as
leading legal facts establishing employment; In contrast,
appointment as special legal fact applies only
cases which the law explicitly defines.
242nd If the petitioners argue that unjustified differences in status
senior staff are manifested mainly in their greater flexibility
(greater possibilities for these senior employees withdraw and then untie
employment), the Constitutional Court refers to the provisions of § 73 para. 2
following, which allows the employee the right to appeal from the head
place and right to waive the leading position was agreed by just
employers who do not appear in the list of the provisions of § 33 para. 3
such agreements, then the position of senior employees 'u
private employers' balances position of senior employees
appointed to a leading position among employers listed in § 33 paragraph
. 3 of the Labour Code. [Note: There is no reason not to
possibility of concluding those agreements, the fair just because it will be a
leading (and therefore usually an attractive) jobs, so candidates
are generally willing to accept such a deal .]
243rd From the characteristics of employers which, in the opinion of the Constitutional Court
nomination as an acceptable way to commencement of the employment relationship
(§ 33 par. 3), the optically beyond the appointment of the Director
state enterprise managers and organizational units of the state enterprise.
The Constitutional Court, however, in this context, refers to § 2 of Law no.
77/1997 Coll., On State Enterprise, as amended, from which
Shows that state-owned enterprise is a legal entity conducting business
state property in its own name and on their own responsibility
has the right to manage state assets and does not own
property. By examining the nature of the state enterprise Constitutional Court has dealt
in its judgment. . I. ÚS 260/06 of 24. 1. 2007. It concluded that
state enterprise according to § 3 para. 2 of the Act establishing a state for
Meeting the major societal, strategic or publicly
beneficial interests "and the state also supervises his activities. Of this nature
state enterprise, in the opinion of the Constitutional Court concluded that in this case
state has the right to determine who will manage state property and
about him decide, and that therefore there is a constitutionally acceptable
differentiation compared to employers who are not in § 33 par. 3
244th In connection with the cancellation of § 33 para. 3, it is proposed the abolition of §
364, paragraph. 3 after the semicolon. Given that the Constitutional Court did not accept
cancel the appointment of a special legal fact
establishing a working relationship with the listed employers had no reason to disturb or
aforementioned part of § 364 paragraph. 3 of the Labour Code.
245th In connection with § 364 paragraph. 3 occurred and reminder
concerning part of this provision before the semicolon - "
Working conditions established under the existing laws
selection or appointment shall be deemed employment relationships based business
". This provision said employers were not listed in § 33 paragraph
. 3 repossessed able to appeal their senior staff members who were appointed to
function before the effect of the new Labour Code. In fact, this
can allegedly be seen as a violation of equality of participants
labor relations. The Constitutional Court notes first that that part
provision (§ 364 paragraph. 3 of the sentence before the semicolon)
affect the proposal, because the repeal of this section is not directed at all.
Proposal to cancel applies only to § 364 Sec. 3 of the sentence after the semicolon
. Factually then be delivered the following. The provisions of § 364 paragraph. 3
is a common type of transitional provisions (in conjunction with § 364 paragraph. 1
Labour Code), which is to address how it will be judged
legal relationships which arose before the new legislation in a manner that
new legislation does not recognize, ie. an earlier appointment with "
private employers." The new Labour Code to resolve this issue so that
working relationships with senior executives 'non-state' employers
incurred prior to the effectiveness of the new Labour Code, compared with working
ratios of executives at these employers to emerging
after the effective date of the new Labour Code. In terms of the alleged
equality in employment relationships, this solution is appropriate because
otherwise would result in preservation of the original creation of employment
relationship (with the possibility of dismissal of executives directly)
created inequality among the participants of labor relations where the employer is
same kind. As regards equality in the position of employers
"state" and "non-state", the Constitutional Court has already commented on this issue
246th Therefore, the Constitutional Court anchoring appointment as a legal fact
establishing a working relationship with the listed employers with defined
binding on the state sees no violation of equality employers
entities or breach of equality of executives
themselves. So that proposal failed.
Generally, the proposed lifting of § 24 para. 2, § 278, § 281, § 282, § 286, paragraph
. 2, § 287, § 305, paragraph. 1, § 321, paragraph. 2, 3, 4 and § 322 of the Code
work, ie. The provisions relating to trade union organizations:
248th Those contested provisions of the Labour Code relating to the status and powers
unions. Right to Organise (
right coalition) is enshrined in Art. 27 of the Charter, which governs the right of every
associate freely with others for the protection of their economic and social interests
. The manner of formation of trade unions and their
Confederation is regulated at national level and by law no. 83/1990 Coll., On
association of citizens, as amended. Statutory regulation here
Respects the international obligations of the Czech Republic.
Trade unions are established independently of the state. Limit the number of trade union organizations
inadmissible, as well as to favor some of them in a company or industry
(Belina et al .: Labour Law, 1st edition, Prague, CH Beck
2001, p. 377).
249th The position of trade unions is also due
international treaties and documents, namely:
- The International Covenant on Economic, Social and Cultural Rights,
- European Social Charter (promulgated as no. 14/2000 Coll. Ms)
- Convention of the International Labour Organisation (hereinafter referred to as "MOP"), especially
- No. 87 on Freedom of Association and Protection of the Right to Organise,
1948 (ratified by 21. 1. 1964 and published under no. 489/1990 Coll.)
- No. 98 on the Right to Organise and Collective Bargaining,
1949 (ratified by 21. 1. 1964 and published under no. 470/1990 Coll.)
- No. 154 Collective Bargaining, 1951 (Czech Republic
250th Of these documents are particularly important ILO Conventions, of which:
Art. 3 of the Convention no. 87 provides:
1) Organizations of workers and employers have the right to draw up their
statutes and regulations, freely elect their representatives, organize
their administration and activities and to formulate their programs.
2) The public authorities shall refrain from any interference which would restrict this
right or impede the lawful exercise thereof.
Art. 2 Convention no. 98 provides:
Organization of workers and employers enjoy in the establishment, functioning or administration
their organizations adequate protection of some
any interference in the affairs of others, whether directly or through
representatives or members.
Art. 4 of the Convention no. 98 provides:
Where necessary, appropriate measures will be taken
national conditions to encourage and promote the widest possible development and utilization
methods for voluntary negotiation between employers and organizations
employers on one side and workers' organizations, on the other
side, so as to regulate conditions of employment through collective agreements
251st These two ratified and promulgated conventions (Nos. 87 and no. 98) are
meaning of Article. 10 of the Constitution part of the law.
Was 252. In practice, each country applies the position of trade unions in the form of a triple
1) employees representing the authority, elected by all employees of the company and the unions
working alongside such authority (usually organize its elections);
Such všezaměstnanecký body assumes example. ILO Convention no. 154
2) have exclusive (exclusive) position and represent all
3) "mixed" model, where trade unions, although they represent only their members but are part
253rd The model used in the Czech Republic with the exclusive position of trade union organizations
found primarily in post-totalitarian countries as a relic of the past
254th Applying such a model raises a number of questions on democracy
similar approach. The basic problem is primarily finds that
employee who is not a member of the union
no opportunity to influence the attitudes and actions of this organization. He gets so into
situation where someone (trade union) defends his
economic and social interests, but without those interests specifically identifying and knew without a
eventually gave disorganized unionized employees an opportunity to || | comment. In relation to unionized workers at unorganized
mentioned model of social representations complicated thing, if u
employer operates next to each other more labor unions. Of
application of the concept it shows that the industrial relations
each trade union socio represents all employees (§
24 paragraph. 1 of the Labour Code).
And 255. The situation is yet in the context of collective labor relations and individual labor relations
. In industrial relations, thus
in relations which concern the interests of employees or their
groups, the representativeness of trade unions
fairly seamless. The case is complicated in individual labor relations
, where according to § 286 paragraph. 2 is true that, as a representative
individual employee performs the appropriate trade union organizations:
A) unionized employees body of the organization, which is
B) for non-unionized
- Body of the organization with the largest number of members, or
- Organ of the Organization, specifically designated by the employee.
256th From the cited provisions that zaměstnanec- outsider
union can ask any trade union to defend their
economic and social interests. Furthermore, it follows from that union can determine
organization to represent the unilateral declaration against her will
(Act refers to the fact that an employee will determine the trade union).
Question whether that provision allows employees and that his statement
exclude trade unions from negotiations for their person at all
is addressed elsewhere in this finding (with the provisions of § 286 paragraph.
2 second sentence), and it positively.
Specifically on the provisions proposed for cancellation:
The provisions of § 24 para. 2, second sentence
text of the contested provision is as follows:
(2) By applying for an employer more trade unions, employer
is the conclusion of collective agreements with all trade union organizations
; unions act and act with legal consequences
for all employees together and in unison,
unless they agree among themselves and employer otherwise.
If the unions fail to agree on the procedure under the first sentence,
employer is entitled to conclude a collective agreement with the trade union organizations
or more trade unions, which have the largest number of members in the employer
259th Of the rights for union organization is considered the most important
right to collective bargaining. The right to bargain collectively
in Europe is generally perceived as a sovereign right of trade
organizations. It is expressed in express terms in § 22 of the Labour Code, under which
right to conclude collective agreements per employee has only
260th The contested provision concerns the process of negotiating a collective agreement.
Legal institution of collective bargaining agreements in the Czech legal order anchored
particularly the provisions of § 22-29, § 113 of the Labour Code and Law no.
2/1991 Coll., On collective bargaining, as amended.
Collective Agreement affords a result of collective bargaining
social partners. The purpose of the regulation of collective bargaining
European democratic context, and within its framework and collective agreements
ensuring social peace, the formation mechanism of continuous
social communication and democratic procedural solutions
possible conflicts between employers and employees . Collective bargaining system
yet reflect the development of European democracy in the late 19th and first half of the 20th century
and mirrors search mechanism peaceful, non-violent solutions
possible tensions threatening peace inside.
261st Feasibility of the functioning of this mechanism is due to the acceptance of the outcome
social bargaining by the state, ie. By assigning quality sources
rights essential content of collective agreements, all of which are exercisable entitling
262. The Constitutional Court has held (see the judgment of the plenum sp. Nos. Pl. US 40/02,
ECR, volume 30, judgment no. 88, pp. 327, promulgated under no.
199/2003 Coll.) that in a free society, in which not even the
employee nor the employer to design the right place
obligation to associate (Art. 27 of the Charter), is the institution of collective bargaining
leading into collective agreements, regularly linked with
extension of their normative scope beyond the scope of merely debenture.
Mechanism of this extension can be either while conceptually already contained in the collective agreement
itself without such extensions are required
adopting another legislative act (an example is legislation in Great Britain
), or this mechanism
expects to release a special legislative act founding extension of such jurisdiction.
European conceptual standard in this regard is based on the assumption according to which it would
concept of collective agreements within the meaning of the legal act, committing only
Party failed to achieve the basic purpose of collective bargaining
. It is therefore determined that the collective agreement is binding for all employees
employers for whom it has concluded a trade union organization
§ 25 par. 2, letter b) of the Labour Code.
263rd When it operates at an employer more trade unions, employer
is the conclusion of collective agreements with all trade union organizations
; unions act and act with legal consequences
for all employees together and in unison,
unless they agree among themselves and employer otherwise § 24 para. 2 sentence
first Labour Code.
264th The principle of freedom of association also implies equality
trade unions so that no trade union organizations operating at
employer may not be favored in front of others, even
due to what staff associates, nor with respect to the number its members.
It is also pointed out in § 286 paragraph. 1 of the Labour Code, from which
implies that the employer must fulfill the obligations therein
against all trade union organizations acting with him, unless another agreement.
265th Charter of Fundamental Rights and Freedoms in its Article. 27 paragraph. 2
speak clearly; any favoritism of some labor unions in
business or industry at the expense of others is unacceptable. Here
right enshrined in no way restricted or implementing the law (cf. Art. 41 paragraph. 1 of the Charter
a contrario). Solving a potential conflict situations
provided for in § 24 para. 2 second sentence of the Labour Code (the principle of majority, representativeness
) therefore can not be accepted from a constitutional perspective.
We can only reiterate that the basic constitutional principle of equality
particular that the differentiation in the approach to certain rights
should not be arbitrary and must above all various subjects
finding themselves in the same or comparable a situation handled differently
way without it for any objective and reasonable grounds.
It can be applied within the meaning of the article of the Charter of Fundamental Rights and Freedoms
on right coalition.
266th Therefore, the Constitutional Court agreed with the petitioners that the contested
§ 24 par. 2, second sentence, contrary to Article 27 paragraph. 2
Charter and the provisions of Art. 3. 2 ILO Convention no. 87 favors certain
unions at the expense of others. It's not just about favoritism
organization with the largest number of members (the principle of majority)
possible combinations is more. This is the same violation of Art. 1, paragraph. 2
Constitution of the Czech Republic, as amended by Constitutional Act no. 395/2001 Coll. (Ie.
Amendment of the Constitution).
The provisions of § 278 paragraph. 1 of the first sentence the words "... in which
no trade unions," § 281 paragraph. 1 at the end of the first sentence
words "... in which no trade union organization "and § 282 paragraph. 1
point. c) and paragraph. 2 Hasti sentence reads "... until the conclusion
enterprise collective agreement"
Wording of the contested provision reads:
(1) To ensure the right to information and consultation of employees may
In which no trade unions
, choose a council employee, or representative
safety and health at work under § 281. ".
"(1) Council staff and representatives for occupational safety and health at work
can be selected by the employer for whom does not
"(1) The Council of staff and deputy for the safety and
health protection shall expire on
(A) the election period unless this law stipulated
(B) the number of members of the council of employees dropped to less than 3
(C) the closure of the company's collective agreement.
(2) If the employer acts in the council or representative
area of occupational safety and health and will work with him
trade union, employer fulfills the obligations laid down to all representatives of employees
Until the conclusion of the corporate collective agreement
, unless they agree among themselves and employer about another way
268th The contested provisions concerning the establishment and operation of všezaměstnaneckých
bodies - councils and representatives for occupational safety and health at work
. The existence of these bodies is provided
Directive of the European Parliament and Council Directive 2002/14 / EC of 11. 3. 2002
whose aim is to establish a general framework setting out minimum requirements
for the right to information and consultation of employees in undertakings or establishments
Community. Right to information
Consideration is a subjective right of every employee. Its implementation
employees can choose to Council staff.
269th Legislation Labour Code does not give works councils or
status of a legal person or legal entity and therefore can not
deal with the legal consequences. Council staff have the right to collectively
negotiate and conclude collective agreements and not use the funds
settlement of collective disputes that the law establishes, in relation to collective agreements
(strike). Council staff can not create
nadpodnikové structure and can not participate in social dialogue at
higher, respectively. sectoral level. It is an institution of social dialogue, which does not replace the function
unions. The purpose of the creation of works councils is
exclusively for ensuring communication between employees and employers.
270th Said Directive no. 2002/14 / EC regulates the obligation to inform and discuss
for "employee representatives" and
left to national law to determine who is an employee representative, as in Art. 2 letter e
) employee representative characterizes as "representative
determined by national legislation or practice." Czech legislation
determines employees' representatives so that the clear preference
trade union organizations. Does not permit trade unions and works councils operate in enterprise
next to each other, as is the rule in other countries (France, Germany
). Works Councils function defined only as a possible alternative solutions
case the trade union at the employer does not.
(Subjective right of employees to information and consultation in the Czech legal order
until 2001 was not adjusted.
Totalitarian law regulates only the right ROH on participation in the management of incorporation
resolution IV. Všeodborového Congress on
racing committee of the Revolutionary Trade union Movement
changes and supplements made by order všeodborové national conference in May 1965
scope of Factory committees Act no. 37/1959 Coll., which
had a completely different character . they could not therefore in this direction to create
legal practices. in 2001 was the then Labour Code
incorporated rules on the status of works councils as an intermediary bodies všezaměstnaneckých
information to employees from employers
by the new Labour Code took over.) In effect, this legislation
means that employees do not have the opportunity to realize their constitutional right
directly. Because the legislation is based on the exclusive position of trade unions and trade unions
clear preference over other institutions, it means that
employees have no choice agencies which is part of the implementation
rights to information and consultation represented. It is, therefore, limit their
will choose the method of representation in the realization of this right because
they (actually) imposed on trade union representation (even without
regardless of the number of unionized employees at the employer).
It is possible, however, that for the employer acted
one trade union organization with a minimum number of three members. This follows from § 6
paragraph. 2 of Law no. 83/1990 Coll., On association of citizens, as amended
regulations, according to which § 6 para. 2 "proposal for registration may be submitted
least three citizens, of whom at least one must be older than 18 years (
as "preparatory committee") ". According to the contested design
Labour Code will be the executor of trade union rights to information and consultation and
employees in this case not choose counsel employees;
Nechtějí- If that is the trade union organizations represented are
forced to establish a trade union another.
271. In terms of methodology, it must use the proportionality test
resting on three criteria known. The first is
evaluation of sub-constitutional law in terms of suitability, which is
evaluating the selected normative measure in view of the possible fulfillment
aim pursued. Unless the normative measure
capable of achieving the objective pursued, it is in principle by the legislature
a manifestation of arbitrariness. The second step is the application of the principle of proportionality assessment
sub-constitutional law in terms of necessity, which involves an analysis of pluralism
possible normative means in relation to the intended purpose and their
subsidiarity in terms of restricting constitutionally protected values. If we can
Legislature achieving the objective pursued
alternative normative measures, then the constitutionally conforming one who
given constitutionally protected value to the smallest extent. If Sleduje- assessed
sub-constitutional law on the one hand, the protection of a constitutionally protected values, on the other hand,
different limits, applied to the third aspect of the principle of proportionality
that comes from their benchmarking, respectively.
presents a methodology for weighing these conflicting constitutional values.
272nd Constitutional Court - Based on these defined criteria -
comes to the conclusion that already in terms of the eligibility criteria (ie. The relationship between used
legal means and objectives of the legislature), as well as the criteria of necessity,
legislation chosen solution will not stand . That's because - as has been said
- inadequately prevents direct implementation of the constitutional right
employees to choose the body that will be in areas covered by that provision
represent; It actually is forcing employees to
organizing themselves, regardless of what their
real political will.
273rd That legislation goes beyond the requirements cited
Directive of the European Parliament and Council Directive 2002/14 / EC of 11. 3. 2002 in its
result is a breach of the principle of equality enshrined in Art. 1 and Art. 3 | || paragraph. 1 of the Charter and the constitutionally guaranteed right to freedom of coalition according to Article
. 27 paragraph. 1 of the Charter. Therefore, the Constitutional Court in these provisions of the draft
upheld and the contested areas is canceled.
The provisions of § 286 paragraph. 2, second sentence
Text of the contested provision reads:
(1) By applying for an employer more trade unions, the employer is obliged
in cases involving all or a large number of employees
when the Act or regulations require
information, consultation, consent or an agreement with the trade union
fulfill these obligations towards all trade union organizations, unless it agrees with them
another way of information, consultation or opinion
(2) By applying for an employer more trade unions, is acting for
employees in labor relations in relation to individual
employees trade union, which the staff member.
For employees who are not unionized, acting in
labor relations trade union with the largest number of members, who are u
employers in employment, unless the employee otherwise this
275th As already mentioned above, the application model, where employees
represented in labor issues only trade union
raises doubts about freedom of individuals to exercise their negative right of association
- not to be unionized. In individual labor relations
under § 286 paragraph. 2 represents the trade union
staff always. If the collective labor relations
exclusive position of trade unions is justified by special interests that unions
represent, in individual labor relations
similar argument can not be used.
276th It is clear that employee-union outsider can trade union
determine the representation in labor relations
unilateral declaration against her will (Act refers to the fact that an employee will determine
trade union). Another problem is that so determined
trade union organization can not refuse to represent the interests of outsiders. Act with such
variant does not count. It thus seems to violate the principle of freedom of association
to defend economic and social interests of union members
organization. Charter Article. 27 paragraph. 1 provides that everyone has the right
association with others to protect their economic and social interests
. Not from him but conclude that the association has incurred
automatically entitled to it, to represent it and who did not associate with others.
277th The Constitutional Court nepřisvědčil petitioners, which in this context refers
to limit the negative aspects of the right to association, ie
. right to freely choose to be or not to be a member of an association, and the corresponding
ban anyone to coerce association.
According to the petitioners, the legislation ultimately means disruption
rights coalition, since the full realization of this right means that people can
without state intervention unions create, change, or cancel,
respectively. to join existing trade unions (positive
Right coalition), but they also have a right not to be organized in any
trade union organization and nobody is not legal means to force directly or indirectly
form unions or to join existing trade unions
(negative right coalition ).
278th In application of § 286 paragraph. 2, second sentence, however, be logical explanation
conclude that unorganized unionized employee can reach his
act that excludes, to act for him some
trade union organization (the words ". .., unless the employee is otherwise ").
That provision can not be narrowly interpreted to mean that the employee has the right to determine
only one of the other trade union organizations to act for him, but
width so that the interference of trade unions may be excluded altogether.
Negative Freedom Coalition therefore the contested provision is not violated and
that interpretation seems to be as constitutional.
279th For completeness we can only say that the right of employees thus excluded
trade union naturally concerns only the legal relationship
individual, not collective bargaining (cf. § 24 para. 1
280th Therefore, the Constitutional Court to annul the contested provisions in that part
The provisions of § 287
Text of the contested provision reads:
1) The employer shall inform the trade union of
A) the evolution of wages or salaries, the average wage or salary
and its various components including a breakdown by individual professional
groups, unless otherwise agreed,
B) the matters referred to in § 279.
(2) The employer is obliged to consult with the trade union
A) the amount of work and pace of work (§ 300)
B) changes in work organization,
C) the remuneration system and employee evaluation
D) the economic situation of the employer,
E) a system of staff training and education,
F) measures to create conditions for employment of individuals
especially adolescents, persons caring for a child younger than 15 years
individuals with disabilities, including the substantive issues
employee care measures improve hygiene and working
environment, organizing social, cultural and physical education needs
G) other measures relating to the large number of employees
H) the matters specified in § 280.
282nd Council Directive 94/45 / EC Directive of the European Parliament and of the Council
2000/14 / EC governing the right of employees to information and consultation, leaving
realization of this right on the practice prevailing in
individual member countries. Employees can implement them
either directly or through their representatives (trade unions, councils
employees). The provisions of § 287 of the Labor Code is thus a projection of the European Communities
rights into national law.
283rd Deleting the references to the action of trade unions in § 278
paragraph. 1, § 281 paragraph. 1 and § 282 paragraph. 1 point. c) and paragraph. 2 Code
work is the right to information and consultation through
trade union organization (both in our conditions developed)
maintained at a sufficient rate just under the provisions of § 287. This will not affect the implementation | || right to information through other employees' representatives -
council employees, respectively. representative for health and safety at work
(§ 279, 280 of the Labour Code).
284th Admitting the co-existence of works councils and trade unions have
by the Constitutional Court, the impact of translating EC regulations governing
right of employees to information and consultation within the national legal order
285th The Constitutional Court therefore petition to annul § 287 of the Labor Code
The provisions of § 305 paragraph. 1
Text of the contested provision reads:
(1) For employers
Where no trade unions
, the internal regulation to establish wage or salary
rights and other rights in labor relations, of which the employee is entitled.
Internal Regulations may provide rights under the first sentence also when it
if it were a collective agreement transferred
. Internal regulation must not impose obligations on individual employees.
287th In labor relations, it is obvious that after their formation
employer creates the necessary working conditions, organize the work
All employees bear the costs and risks of working
activities and uses the results of these activities. However, it is entitled to give instructions
employees to perform the agreed work. The employee is obliged to control
employer will submit to § 2 para. 4, § 38 par. 1 point. b)
Labour Code. In this context we speak of disposition powers
employer. The layout of competence is part of the contents
property rights, which is understood as a right enshrined option owner
within the limits provided by the law to hold and use things and dispose of them according
its discretion and in their interest, power, which is not dependent on the existence
can anyone else to the same things at the same time, ie as a set of rights
called ius disponendi, ius et utendi fruendi and jus
288th Internal regulation collectively instructing employers who
specifies the responsibilities of employees, generally set
mandatory legal standards, taking into account the specific conditions of a particular
employer. It is a manifestation of the realization of rights, meaning juris
disponendi. Internal regulations are considered local sources
289th The contested provision of the limited autonomy of the will of the employer and
realization of the right to dispose of their own property by issuing instructions
organizing of this property is bound either
- The absence of a trade union (the first sentence of the said provision)
- This right is transferred to the employer collective agreement (the second sentence of the said provision
290th Implementation of property rights is therefore subject to the (limited)
either the lack of any other entity of labor relations (trade
organization) or an agreement between unions and employers.
From the current wording of the contested provision that the issue of internal regulation may hinder
mere existence of trade unions, regardless of whether it was
collective agreement, and regardless of whether the trade union organization started
for the employer to act. It is also true that u
employer a trade union only if it established
employees, appoint the authorities and told
employers, but even if it is not established by an employer
no trade union body, but some employees are members of the local
union organizations (trade unions established on a territorial basis)
So if the employer employed at least one member of the trade union organizations at all
. It may therefore be situations where the employer operates
u - in this sense - a trade union without employer knows it.
According to case-law, the obligation of employers to respect trade union organization
does not follow a formal notification addressed
employer says that he has (started operating)
basic trade union organizations (see eg. The judgment of the Supreme Court. Zn. 21 Cdo 1599/2001
- www.nsoud.cz). Because of him the fact that he or she operates
trade union implies a number of obligations, creates for him
state of legal uncertainty on such obligations; the employer may, in good faith
issue an internal regulation that is invalid. This is therefore violate the principle of legal status
recognizability and predictability of legal decisions.
291st Restrictions on the possibility of issuing internal regulations, respectively.
bond issuing internal regulations for approval unions expressed in
collective agreement is inconsistent with the constitutional order; It involves changing
fundamental right to own property under Art. 11 paragraph. 1
Charter of Fundamental Rights and Freedoms and the autonomy of the will of the employment relationship
(owner). The requirement to minimize interference with the fundamental rights and freedoms implies
safeguards uniqueness of such a measure.
Is essential in this context, the maxim that a fundamental right or freedom may
restricted only in the interest of another fundamental right or freedom or public
farm (see Judgment. Nos. Pl. US 40/02). In the case under review
it is not clear what other fundamental right or freedom is on a collision course with
ownership right of the employer and the autonomy of his will, so that
need is so limited. Internal regulations employers must indeed
under § 305 paragraph. 2 of the Labour Code in accordance with legal regulations
(constitutional law, common laws, government regulations, decrees
central government authorities). The legislature may also provide
Rule that internal rule must also conform to the normative portions
collective agreements if they modify the relevant issues, how to set
Repeal Act no. 65/1965 Coll., As amended by further regulations.
292nd The contested provision - as already mentioned - that unreasonably restricts
employer will adjust the internal regulation of certain areas in
labor relations, but can be found for such treatment
constitutionally relevant evidence. You can recall a basic principle of constitutional
under which, when applying provisions on the limits of fundamental rights and freedoms must be
always preserved their essence and meaning (Art. 4, paragraph. 4
293 cells. As the Constitutional Court has repeatedly stated it pursues a consideration
sub-constitutional law on the one hand, the protection of a constitutionally protected
values, on the other hand, however, a different value limits, apply
third aspect of the principle of proportionality, which is based on their benchmarking,
respectively. a methodology for weighing these conflicting constitutional values
. In order to infer the merits of one of the priorities
fundamental rights, it is essential intervention into conflicting fundamental rights
minimize to the maximum extent; it may reasonably be deduced from
. Article 4, paragraph. 4 of the Charter of Fundamental Rights and Freedoms, under which
when applying provisions on limits of fundamental rights and freedoms must be preserved
their purpose and meaning; It also applies to their
restrictions as a result of being in conflict. As regards § 305
paragraph. 1, but not - as already mentioned - is sufficiently clear, in order
what another fundamental right (or purpose) is the possibility
issue internal regulations of the employer is limited, making the adjustment
problematic in relation to the basic criteria
principle of proportionality (appropriateness and necessity).
294th Therefore, the Constitutional Court granted the petition to annul § 305 paragraph. 1
Labour Code in the contested parts of the meet.
The provisions of § 321 paragraph. 2, 3, 4 and § 322
Contested provision reads:
1) Trade unions oversee adherence to this law, the law on
employment legislation on safety and health at work
and other labor laws.
2) Trade unions have the right to engage with employers
control over compliance with the legislation referred to in paragraph. 1
internal regulations and obligations stemming from collective agreements. The employer is obliged
union to permit the exercise of control and for this purpose to ensure her
A) entry into the workplace
B) the transmission of necessary information and documents relevant managers and employees
necessary assistance to exercise control,
C) submit a report on what measures have been taken to rectify the defects identified
control or to implement proposals for action, which filed
unions exercising control.
3) If the inspection personnel data, which are subject
protection under a special law, the data may be supplied only with the prior consent of the employee
4) The objects important for national defense can perform this
control only those unions, which is under special regulations
allowed into such devices.
(1) Trade unions have the right to exercise control over the state
occupational safety and health for the individual employer.
The employer is obliged to allow trade union power and control
for this purpose it
A) ensure the possibility of checking how
employer fulfills its obligations under the care of occupational safety and health and that
systematically creates the conditions for a safe and healthy work
B) ensure the possibility to regularly review the work and equipment
employers for employees and employers
control the management of personal protective equipment,
C) ensure the possibility of checking whether the employer properly investigates
D) ensure the possibility to participate in identifying the causes of workplace accidents and occupational diseases
, or clarifying,
E) to participate in discussions on issues of occupational safety and health at work
(2) Trade unions are entitled
A) require binding guideline for employers eliminate defects in
Operation on machines and equipment, while working practices and the case
imminent danger to life or health of employees
ban further work
B) prohibit overtime and night work, which would compromise the security
and health of workers.
(3) The arrangements made under paragraph 2
trade unions are obliged to immediately inform the competent authority under special control
legislation. Require- if requested by the employer the labor inspectorate,
the latter shall examine trade union action;
until his decision to apply trade union action.
(4) Costs incurred to exercise control over health and safety at work
paid by the state.
296th The contested provisions give permission
trade union organizations monitor compliance with all labor laws (including
collective agreement) (§ 321 par. 1) and giving employers
binding instructions to eliminate identified (and alleged) defects. With the implementation of this
rights related to the obligation of employers to allow members of the controlling
union entry to workplaces, passing
required information and documents and synergy to exercise control, as well as subsequent
report on what measures have been taken to rectify the defects identified
control or proposals to implement the measures, which have submitted
unions exercising control. As mentioned at
elsewhere, the trade union representing the interests of employees.
In this respect, the Constitutional Court agrees with the petitioners that the contested
provisions of § 321 and 322 of the Labour Code of disrupting the balance
relationship between employees and employers as well as equality of the parties
collective agreement because one party can
control the fulfillment of the obligations established by this agreement and require the other party to fulfill obligations
to your liking.
297th A union is empowered to check the compliance with the Act
set of laws. For legal norms, however, it is typical that their
compliance controls and secures the state (state organization).
The state may delegate the control and decision-making on the rights and obligations
natural and legal persons and other - non-state actor, but he
performs this activity on behalf of the State and authoritatively decided
as a public authority. Its decisions are enforced by state power and
against such a decision is in principle subject to appeal.
Checking compliance with legal standards is therefore a typical activity of the state.
298th The provisions of § 321 and § 322 of the union entrusted
activity that has all the hallmarks of public administration. This fact is underlined by the provision
§ 322 paragraph. 4 of the Labour Code, which in the given context
states that expenses incurred to exercise control over
occupational safety and health shall be borne by the state. The inspection
powers entrusted to trade unions in relation to compliance with all labor laws
(§ 321), especially in relation to
occupational safety and health (§ 322). A union is endowed with powers
patrimonial unilaterally decide the case (even
binding instructions of the employer pursuant to § 322 Sec. 2 point. A) and
hit by the rights and obligations of the employer.
Trade union therefore appears to the employer authoritatively, even though such a right
can not be inferred from the Constitution nor any international treaty binding on the Czech Republic
under Article. 10 of the Constitution nor the law of the EU.
299th A delegation of state administration on trade unions - with the exception
control over the state occupational safety and health
(see below) - while there is no rational reason. Can not argue nor
representative functions of trade unions, where unionisation is
about 30% of employers and a number of trade union organizations do not operate at all.
Control has character checks general, even though the higher trade union bodies have
experts (technical and legal) that it may, on behalf
union conduct. When the plurality of trade union organizations
is also mentioned powers of inspection conferred to all trade
organizations working for the employer, closer neurčitelnému
number of entities that may in the performance of control activities and compete in
their decisions and contradictory.
300th A trade union can (but not necessarily) identified shortcomings
Employer's attention and he may propose measures to remedy the defects found
. In the field of occupational safety and health (and only there
) may even require a mandatory instruction from the employer
eliminate defects and in case of imminent danger to life or health of employees
prohibit further work. A trade union can also
prohibit overtime and night work, which would compromise the safety and health of workers
. As mentioned above, check
compliance with the legislation, however, is in principle a matter of law, which for this purpose
establishes professional organizational units, focusing on the individual
areas (hygiene, transportation, safety, etc.).
This is clear from the provisions of § 323, which provides that the exercise of control in
labor relations are regulated by special laws (cf.
Note no. 36 to this Regulation, from whose legacy is evident that it is a
control by state authorities). To ensure the exclusive role of the state in this direction
barely enough to think about binding instructions to eliminate defects and
work bans trade union must immediately inform the competent state authority
control (§ 322 paragraph. 3 first sentence).
Three hundred and first Control authority of unions is therefore from this perspective
disproportionate. The whole area of collective labor law
is built on the principle of equality of its subjects, ie.
Employers and labor organizations working with him respectively. employers' associations and trade unions
. Their mutual relations are formed primarily on a contractual basis
(collective agreements). The fact that the legislature has entrusted the trade unions
such extensive powers of control, disrupted this equality and
created a situation where trade union authoritarian controls how fulfilling
second contractor - among other things - the arrangements collective agreement. In his
result it means violation of the principle of equality and
interference in property rights under Art. 11 paragraph. 1 of the Charter. These provisions are transferred to
trade union right to control all labor legislation.
Trade union organization that carries out (on behalf of the state)
activities of the specialized state control bodies. Universal control power
union is useless (cf. Argumentation above).
302nd In this context, it must be reiterated that
according to settled case-law of the Constitutional Court, although the state of things, that a certain group
provide fewer benefits than others; but must not act arbitrarily. If
law grounds favor one group and at the same time sets disproportionate obligations
other groups, it can be done only with reference to the public
values. Equality itself is conceived as a relative category, which requires
particular the removal of unjustified differences and elimination of arbitrariness.
Legal differentiation in the approach to certain rights shall not be arbitrary;
Inequality in social relations, if it is to affect fundamental human rights
, however, must reach an intensity, at least in a certain
regard, the very essence of equality. This usually happens when the
violation of equality is connected to violation of another fundamental right and if
with different entities in the same or a comparable situation
, treated in a different manner, without there being
objective and reasonable grounds for the different approach.
May be recalled that in case of conflict of fundamental rights, possibly
public good, as principles - unlike the case of a conflict of norms
sub-constitutional law - Constitutional Court guided by the optimization, ie.
Postulate of minimizing limitation of fundamental rights and freedoms, if necessary.
Public good. Its content is the maxim that, if it is to be inferred
merits priority to one of the two conflicting fundamental
rights or fundamental rights and the public good is a necessary condition
final decision is to use all possibilities to minimize interference | || one of them.
303rd Specifically, this means that received broad remit of trade unions in
control area, covering all labor laws, the
find themselves in disagreement with the principle of equality, as well as the fundamental criteria
principle of proportionality, which in practice may lead
also inadequate and particularly unjustified infringement of the right to own property
guaranteed by constitutional law.
304th You can even add that the repeal of § 321 paragraph. 2, 3 and 4
Labour Code does not affect the right of employees to information and consultation
resulting from the aforementioned Council Directive. 94/45 / EC and no.
2002/14 / EC. Right to information and consultation is implemented
individual employees either directly or through trade unions or through
Works Council or a representative for the safety and
health at work (§ 276 paragraph. 1, § 278 paragraph. 1 Labour Code).
The protection of these rights, thus they are and will be maintained, as nothing prevents
employees or unions to draw attention to the shortcomings identified
or to violations both employer and
competent control authorities of the state.
305th Regarding the Additional Protocol to the European Social Charter (no.
15/2000 Coll. Ms), the Article in Part II. 3 regulating only the right to participate
the determination and improvement of working conditions and working environment
. With a view to ensuring the effective exercise of the rights of the parties to the protocol
pledged to adopt or encourage measures enabling
workers or their representatives, in accordance with national legislation and regulations
(national) practice, to contribute:
A) the determination and improvement of working conditions, work organization and
B) to protect the health and safety within the undertaking;
C) the organization of social and socio-cultural services and facilities
in the enterprise;
D) to the supervision of the observance of regulations on these matters.
, 306. From the above text (and its meaning) is therefore hardly be deduced
obligation of the State to entrust the departments of inspection and supervisory authority over compliance
All labor laws.
307th To the objection that control over compliance with labor legislation
internal regulations and obligations stemming from collective agreements is a manifestation
freedoms guaranteed by the Convention no. 87 of the International Labour Organisation
, it should be noted that the Convention of 1948 It applies only
freedom of association and protection of the right to organize. It shows that
workers and employers have the right to organize without prior approval
state authorities; workers' and employers have
right to draw up their constitutions and rules, to freely elect their representatives,
organize their administration and activities etc. The public authorities shall refrain from any intervention
this right. No provision of the Convention, however
not conclude that this part of freedom of association, the right organization
employees (workers) to monitor compliance with labor
legislation, internal regulations and obligations stemming from collective agreements
. The Convention, which this does not apply to checks, in the Czech Republic
by Law no. 83/1990 Coll., On association of citizens,
308th Therefore, the Constitutional Court contested § 321 paragraph. 2 Code
work aside. Then they become obsolete and paragraphs 3 and 4 of this
act and therefore the Constitutional Court also annulled.
309th Somewhat different is the situation regarding the safety checks, and
health at work (§ 322 par. 1).
Monitoring of compliance with safety rules and rules can be considered part of the defense
economic and social interests of employees, which is the main task
unions. OSH, which directly affects
life and health of employees, should have employees (and therefore
organizations acting on their behalf) the ability to highlight employer
existing shortcomings, including on the basis of their knowledge and
way as soon as possible. The provisions of § 322 par. 1 can also be construed as
implementation of basic workers' rights to fair working conditions
within the meaning of Article. 28 of the Charter.
310th Right non-governmental bodies to check specifically
safety and health at work in our country has a long tradition. This right may be to some extent
already inferred from the Act no. 330/1921 Coll., On race
committees As pointed out in its statement CMKOS [see. § 3.
1 point. e)], although the situation was different then. Race Committees were
všezaměstnanecké authorities that in certain areas
cooperate with trade unions, to set up a mandatory and in factories, employing at least 30 employees and
race lasted at least ˝ year. Tasks factory committees were set
§ 3 of the Act as follows:
(1) Race Committees are called to defend and encourage
Economic, social and cultural interests of employees in the race, especially having
A) dozírati to maintaining wage and labor agreements and orders,
co-operate in arranging work schedules, have been fixed
collective agreement negotiated between the trade unions;
B) is seen as necessary by one member of the race committee to
designated representative attended the race in wage and salary schedules
led the race. If it is a charter concerning the ushers may be
this task is called only employee;
C) ujednávati with the cooperation of trade unions and employers'
employee amendments to collective agreements negotiated between
such organizations, if permitted by the collective agreement;
D) pečovati to implement and maintain settlements, agreed at conciliation
authorities, as well as the findings of the arbitration panel;
E) dozírati that maintained the legal provisions on the protection
staff, particularly as regards the protection against accidents, health
measures at the plant, employee insurance, warned the management of plant
found are shortcomings and invoke the relevant governmental authorities
supervisory, attend also one member of the race committee to
identified any relevant investigations and a commission proceedings
dohlédacími held by official bodies in the race;
F) cooperate in maintaining discipline and order in the race when
disciplinary proceedings and pečovati a good relationship between the administration and the race
employees or between employees also race each other. Especially also
urovnávati impartially disputes arising from belonging to different organizations
religious, political or trade union;
G) to co-way consultative collective redundancies
employees of the causes lying outside employment, as well as in
dismissal of individual employees for more than 3 years working in a factory ...
311th Also, in the opinion of the CMKOS mentioned Presidential Decree No.
. 104/1945 Coll., On racing and works councils, has been adopted for other
economic and political situation and had no function other than the current code
work. Manifested in him already influences that later resulted in the constitution of a single
ROH. The law in § 1 para. 1
adjusted the position of the council race and determined that "
Racing council is the executive body of primary and united trade union organization
." However, even in this decree can be found some elements || | relating to occupational safety and health.
312th Racing Board, pursuant to § 20 of the cited decree called:
First povzbuzovati and defend the economic, social, health and cultural
interests of workers in a factory;
Second It makes sure that economic activity plant (the company) is performed in accordance with
general economic interest and according to the provisions on the management
Third he makes sure that economic activity plant (the company) is performed
so, in keeping with considerations of general welfare and economic
valid regulations on the economy were fairly satisfied
economic, social, health and cultural interests of the employees of the plant
Fourth participate in races (companies) to manage the plant (the company)
suggestions and advice for this purpose, to achieve the common good
maximize economic efficiency and performance;
Fifth co-operate according to the regulations issued by it in the exercise of economic and socio-political
313th In the 50s the supervision of work safety law no. 67/1951
Coll., On safety at work, entrusted to a single trade union and its institutions
labor inspection. The union labor inspectors could
by these rules inspect all facilities and premises employers
issue directives and guidelines to ensure safety, stop the operation
work and impose fines in block proceedings like. Their action if necessary
Right to control occupational safety and health is therefore rightly
traditional employee representation bodies, whose roots
certain there is already the first Republic. To his certain deformation it occurs in the 50s of the last century
; legislation controls trade union
associated with the concept of gradual dissolution of the state and transfer its functions to the
social organizations, particularly the single trade union.
Manifestation of this tendency was, for example. And transferring management of sickness insurance
revolutionary trade union movement, takeover resolution IV.
Všeodborového Congress on the status of the racing committee of the Revolutionary Trade Union Movement
into law by Law no. 37/1959 Coll., On
built race committee of the Revolutionary Trade Union Movement
, etc. This trend was taken by law no. 65/1965 Coll., Code
work and find its reflection in some aspects and in Act no.
262/2006 Coll., that the new Labour Code.
314th These deformations, however, the fact remains - as noted above
- that the right of trade unions to control occupational health and safety is a reflection
basic employee rights under Art. 28 of the Charter, it is in the public interest and not in conflict with the constitutional
order. Annulling this trade union rights
organizations would in effect amount to a denial of the meaning of their existence, which
protect economic and social interests of employees, which seeks
- among other things - to create favorable working conditions (Art. 27 || | paragraph. 1, Art. 28 of the Charter). The unions would then become academic par excellence
association which would be a worthy partner role of employers and their organizations
could not play.
315th Therefore, the Constitutional Court granted the petition to annul § 322 paragraph. 1 NZP
316th Because the Labour Code provides employers with OSH series
obligations (see eg. § 101 paragraph. 1 and 2, § 102 etc.), the employer
(senior staff) required to respond immediately and eliminate defects in
safety, which has been notified or identified, so
to the life and health hazard to avoid. From this perspective
power to trade unions given the provisions of § 322 paragraph.
2 (injunction and allowance privileges) disproportionate and redundant, because
obligation to remove the defects found by employers goes directly
by law. This power of trade unions thus appears to be a breach of Article
. 11 paragraph. 1 of the Charter. To § 322 paragraph. 2 continues in § 322
paragraph. 3 unions obligation to notify the measure pursuant to paragraph 2
competent authority of state control; this obligation is with regard to the abolition
§ 322 paragraph. 2 obsolete. Besides, employees, or
trade union bodies, nothing prevents that even after the abolition of prescription
alerted authorities state supervision on work safety
problems in safety, if they deem it necessary.
317th We can only say that (not canceled)
right to check the status of occupational safety and health can not automatically mean
right to impose mandatory employer instruction, which measures in this field has to take
. In the Constitutional Court's letter cited above
Additional Protocol to the European Social Charter and
filled by employee representatives have the right (§ 322 paragraph. 1 NZP)
state occupational safety and health check and warn
employer on the deficiencies identified.
Obligation of the employer to eliminate the shortcomings identified in this area that other provisions
NZP (see Part Five NZP). Permission unions
obliges the employer to a binding guideline is thus well above
beyond the requirements contained in the Additional Protocol.
318th Therefore, the Constitutional Court of § 322 paragraph. 2 and 3 NZP canceled.
319th With regard to the provisions of § 322 paragraph. 4 NZP, however, was a proposal to repeal
rejected. That's because on reimbursement of costs incurred by the performance
control of occupational safety and health (OSH), which remains
trade unions - such as their right - be retained. Indeed,
costs incurred in the performance of this check shall be paid according to the regulations of the State.
K § 46, § 61 paragraph. 1, § 61 paragraph. 5
Contested provisions added:
If the employer transfers an employee to another job than is
employment contract and the employee disagrees with such a measure, it may
employer to transfer only after consultation with the unions.
Consideration is not necessary if the total duration of the transfer
not exceeding 21 working days per calendar year.
§ 61 paragraph. 1 and Sec. 5
(1) notice of termination or immediate termination of employment, the employer is obliged
prior consultation with the trade unions.
(5) In other cases of dismissal, the employer is obliged to inform
trade union organization within the deadlines agreed with her.
321st The petitioners are challenging those provisions to conflict with Art. 7, 8 and 11 of the Charter
because the realization permissions
trade unions and employer's obligation to discuss these legal actions or inform about them
apparently leads to invasion of privacy and personal freedom man -
employees, or interference with the property rights of employers;
This provision does not relate as well as employees who are not members
union, even if you specifically want to.
322nd The Constitutional Court of the petitioners nepřisvědčil.
In his view, those provisions can not be seen nor conflict with Art. 7 and 8
Charter nor Article. 11 of the Charter. The trade union organization in this case fulfills its
, in democratic countries recognized, the protective function against
employees; applying a more general view of the grounds on which
employer wants to transfer the employee to the work of a different kind than the
agreed or for which he wants to end their employment, and the way that he wants to do so
(or give notice immediately terminate the employment).
Given permission unions and the corresponding obligation
employer can not be considered a violation of Article. 11 of the Charter also because
employer's decision to transfer to a different kind of work, possibly
decision to give notice to the employee (immediately cancel employment)
not in terms of the validity of a legal act by which such a decision
implements, discussing with trade unions conditional (cf.
§ 19 para. 3 of the Labour Code).
323rd The obligation imposed on employers in § 61 paragraph. 5
Code work is part of a general obligation to provide information which has
employer is obliged to perform to employees (possibly)
represented by council employees or trade union within the meaning of §
278 et seq. Labour Code.
324th Participation of workers' representatives (unions)
when terminating employment with the individual employee is finally derivable from the provisions of Article
. 11 ILO Recommendation no. 166 on termination of employment
1982 (see R166 Termination of Employment | || Recommendation, 1982 11. The Employer May consult workers'
lobbyists before a final Decision is taken on Individual
cases of termination of employment). It is true that the recommendation is not marked
within the meaning of international law, binding and obliges Member States
ILO obligations relating to the possible ratification
but it can be seen as a summary of views on the possible development of legislation
institutes in question. Finally, the issue of cooperation with representatives
employees also appeared in an earlier ILO Recommendation no. 119 of
325, respectively. The Constitutional Court did not grant the petition to annul these provisions (in comparison with
proposals to repeal provisions of § 321 and 322) also because
reason herein union authorization is primarily to protect individual
employee, not the employer's control ( except control
state occupational safety and health); It is one of the reasons
presented here takes the opposite view in comparison with the provisions of § 321, paragraph
. 2 and 3 and paragraph 322. 2 and 3 NZP.
326th The Constitutional Court finally disagrees with the petitioners that the contested provisions
impinge on employee-union outsiders who
discuss the transfer of work, termination or immediate termination of employment relationship
express wish. This is because the provisions of § 286 paragraph. 2 sentences
second NZP, which allows employees to exclude interference of trade
authorities in his case, of a general nature and is reflected into the concrete
K § 306 paragraph. 4
Contested provision reads:
(1) Operating Procedure is a special type of internal regulation;
expands the provisions of this Act or specific legislation under
special conditions with the employer regarding the obligations
employers and employees arising from employment relations.
Working order, however, not create new obligations for staff.
(2) Working procedure can not contain an adjustment under § 305 paragraph. 1st
(3) Employers stated in § 303 paragraph. 1 are obliged to issue
(4) The employer, in which a trade union may issue
or change the conditions of employment only with the prior written consent
trade union organization, otherwise the issuance or amendment invalid.
(5) The Ministry of Education, Youth and Sports issued in agreement with
Ministry of Labor and Social Affairs decree provides
work rules for the staff of schools and school facilities established by the Ministry
Education, Youth and Sports, Region, municipalities and voluntary union
328th The Constitutional Court did not grant the application for annulment of § 306 paragraph. 4
Labour Code. In the case of this provision, which is also a possibility
release internal legal standards tied to the prior written consent
unions, it can not be argued, as did the Constitutional Court in connection with the abolition
links to unions in the provisions of § | || 305, which refers to the possibility of issuing internal regulations. Work order is
is an internal legal norm, whose task is to specify
rights and obligations established in the generally binding regulations on employers
conditions. Unlike collective agreements or internal regulations
which can only modify the rights of employees, may be adjusted
Employment of their duties. It is therefore appropriate that
in this case created conditions for the functioning of trade unions,
whose task is to protect the social interests of employees. Can not -
by the Constitutional Court - to accept the argument of unequal status
employers where no trade unions, and employers
where trade union organization operates. Legislation is designed
opportunity for staff to ensure the protection of their social interests
way trade unions. If you do not exercise such rights and trade union organization
can not stop, then the employer may issue logically working
329th The Constitutional Court also considered the possibility of developing a comparative study
in the subject area. Perform a detailed comparison in the case
examined the provisions of the Labour Code with legislation in other states
however, did not appear for several reasons too meaningful. First
least, should have been a very significant comparison, because the proposal
contested provisions is a very significant number (30) which in itself
may be counterproductive and result in confusing or inconclusive
. Himself elected state or group of states with which it has been contested by the
compared, would then have had many similar traits
related to the historical development of labor law in the territory
Czech Republic after the fall of the totalitarian regime and before him . Illuminating
would of course have to be especially comparison with labor law
developed democratic countries of Western Europe. There is, however - as already mentioned above in the comments
Senate of the Czech Republic - a situation
distorted mainly by the fact that fundamental constitutional principles and standards are guaranteed
mostly in the form of collective agreements, which is protected by the sheer
most employees; significance and importance of law governing
doing so inevitably decreases. In the Czech Republic, where collective agreements
disproportionately affect fewer employees, the role of the Labour Code
currently significantly different. There is thus compare the situation in the Czech Republic
with the situation in some post-communist countries; It would, however
also yielded many as potential konstatace similar deficits
constitutionality is not a constitutional argument. Indeed, the benchmark for
Constitutional Court as a judicial body for the protection of the constitutionality of the constitutional order, and
not hypothetically perfect legal regulation of labor relations
existing perhaps in another country. Therefore, the Constitutional Court
comparative examination of the case agree.
330th For these reasons, the Constitutional Court partially upheld and
provisions of § 2 para. 1 sentence, second, third and fifth, § 4, § 18
words "48, 49", § 20 first sentence after the semicolon in the words " ; It does not apply in the case
act towards creation of employment or
conclusion of an agreement on work performed outside employment, "§ 24 par. 2 sentences
Second, § 278 paragraph. 1 in the words" u
which no trade union organization, "§ 281 paragraph. 1 the words" in which no trade union organization
"§ 282 paragraph. 1 point. c) and paragraph. 2 the words "until
conclusion of the company's collective agreement," § 305 paragraph. 1
part of the first sentence the words "for which no trade unions," § 305 paragraph. 1
Second sentence, § 321, paragraph. 2, 3 and 4 and § 322 paragraph. 2 and 3 of Law no. 262/2006
Coll., The Labour Code, the day this judgment in the Collection of Laws
. In the rest of the proposal was rejected.
331st Diverging opinions on this finding to set aside following
judges as follows:
1) The verdict no. I annulling § 2 para. 1 sentence, second, third and fifth -
Ivana Janu, Pavel Rychetsky, Jan Musil and Vojen Güttler.
2) The verdict no. I annulling § 4 - Vojen Güttler
3) The verdict no. II rejecting proposals to repeal § 2 para. 1
first sentence the words "or the nature of its provision that since it is not possible to derogate
" - Elizabeth Wagner, Dagmar Lastovecká and Vojen Güttler.
Chairman of the Constitutional Court:
JUDr. Own hand
Dissenting opinions according to § 14 of Act no. 182/1993 Coll., On the Constitutional Court,
amended, impressed the judges plenary decision Vojen
Güttler, Ivana Janu, Dagmar Lastovecká, Jan Musil, Paul
Rychetský and Elizabeth Wagner.