119/1998 Coll.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court decided on 29. April 1998 in plenary on the draft group

members and groups of Senators to repeal Government Regulation No. 68/1997 Coll.

fixing the rate of teaching duties of teachers and the level of the duties

the educational work of other teaching staff in the education sector,



as follows:



The proposal is rejected.



Justification



(I).



On 9 April. December 1997 the Constitutional Court was delivered to the filing that

contains a proposal from the Group of 31 deputies of Parliament of the United

Republic for annulment of the Government Regulation No. 68/1997 Coll., laying down

a measure of the teaching duties of teachers and educational responsibilities of work intensity

other teaching staff in the education sector, and contained exactly the same

the proposal, signed by 20 senators.



Government Regulation, which came into effect on January 1. September 1997 and which was

issued under the provisions of paragraph 23 (c). h) Act No. 143/1992 Coll., on the

salary and remuneration for work stand-by in budgetary and certain

other organisations and bodies, as amended, the appellants

They complain that it is in conflict with the law, and this claim based on the

the following arguments.



In the opinion of the appellants ' Act No. 143/1992 Coll., [section 23 (b), (h))]

empowers the Government to lay down by regulation "peace teaching duties of teachers,

the obligations of the educational work of other teaching staff and

educators. " The provisions of § 2 of the contested regulation, however, provides that the Government

the degree of teaching duties, or obligations of the educational work consists on the one hand

direct teaching obligation or direct educational activities [cit).

the provisions of] and the preparation for direct teaching activity (direct educational

activity) work directly related to this activity, and more

work arising from the organisation of education and training in schools and

school facilities under the staff regulations for employees of schools and

educational facilities within the scope of fixed weekly working hours

[(b)). the provisions]. Of the appellants was that section 2 of the

Government regulation goes beyond legal authorization, for the law took

Government to determine the level of teaching duties (or obligations of the educational

work with other teaching staff), which is undoubtedly meant to be

only the direct teaching activity or direct educational activity-that is, only

the obligations referred to under (a)). The obligations laid down in point

(b)) do not have its basis in the law. In the opinion of the appellants is therefore

in this respect, the contested regulation the Government in conflict with the provisions of article 8(1). 4

paragraph. 1 of the Charter of fundamental rights and freedoms ("the Charter").



The appellants further argue that the scope of direct teaching

obligations, or educational activities, as stipulated in annex

Government Regulation, is compared with the previous legislation (regulation

No. 503/1992 Sb.) higher. Therefore, if the appellants are based out of

the view that the responsibilities of teaching staff for doing so already

before the new adjustment the statutory weekly working hours, then an increase in direct

teaching duties, and thus the related necessary other

activities, it must necessarily result in exceeding the maximum prescribed by law

the weekly working time. This is in accordance with § 83 para. 1 of the Labour Code 43

hours. With regard to the possible shortening within the meaning of paragraphs 3 to 5 of this

the section represents the maximum weekly working hours for teachers and

other teaching staff presently 42.5 hours a week (art. 83 (6)

of the labour code). Whereas it has not been changed in correlation

law, in other words, it was not reduced the amount of other

job duties and there has been no change to the applicable conditions of employment,

issued by the Ministry of education, youth and sports

Republic under the mandate of section 58 (a); b) of Act No. 29/1984 Coll., on

the system of elementary schools, secondary schools and higher vocational schools

(the Education Act), (full text of No 258/1996 Coll.), as the contested

Government Regulation also conflicts with the provisions of § 83 of the labour code, since

podzákonným regulation of working time may not be extended beyond the boundaries of the

laid down by the labour code. Also in this respect, therefore, was considered by the

the appellants ' breach of the article. 4 (4). 1 of the Charter.



Direct teaching activity period was shortened the time for the next

follow-up and related activities that educators

stores, in particular, the Education Act. In this regard, the plaintiffs allege

in particular, the provisions of § 51 para. 2 ("youth workers bringing up

pupils in terms of scientific knowledge and in accordance with the principles of patriotism,

humanity and democracy; are required to work conscientiously

prepare and educate ") and the provisions of § 49 paragraph 1. 1 and 2 of this

the law, which impose a duty to ensure the safety of schools and the protection of

health of pupils during activities that are directly related to education and

education. These tasks are the schools required pursuant to section 1 (1). 4 of the law

No. 1/1991 Coll., on employment, ensuring your employees-

educational staff. In addition, the appellants also point out the section

38A Education Act, which imposes an obligation to lead the prescribed

documentation, which is also part of the responsibilities of teaching

workers. Of the appellants was that the higher the number of hours

direct teaching activities, and educational activities, must be higher

(I) the number of hours required for the performance of the duties with integrally

they are related to. None of them, however, has not been reduced. Government Regulation No.

68/1997 Coll., therefore, is whether or not in violation of the provisions of the cited school

the law.



At the hearing, 29 June 1999. April 1998 tabled by the representative of the Group of Senators

the original opinion, which to the point he handed the Institute of State and law of the Academy of

of Sciences of the United States on 13 June. October 1997, to which it refers and brought

the proposal. In this representation it is stated that there is no doubt that there is a

the mandate of the Government based the law and that it can only examine whether the

Regulation does not establish the obligations of the new compared with the previous legal

modifying, or whether this regulation is not inconsistent with the applicable provisions of the

the labour code, in particular with section 83. Whereas that shortening

working time is possible only in the cases provided for by law and after

consultation with the competent central authority of the Trade Union, is undoubtedly

be inferred that the same procedure shall apply for renewal for work

of the times. In the opinion it is common ground that the standard is podzákonná cannot establish

range of working hours above and beyond the law. Additionally, in this opinion

States that, in the comparison of diction the repealed and current Government regulation clearly

the new duties are based, in so far as significant. At the same time

the Government notes that the mandate contained in paragraph 23 (a). (h))

Act No. 143/1992 Coll., the Constitution of the new Constitution of time precedes

the Czech State. If, therefore, that any derived legislation cannot

store the new duties, the less can be derived the legal standards

issued on the basis of the "předústavních authorizations".



At the hearing, 29 June 1999. April 1998 the appellants remained on their

arguments and stressed that both before and after the effectiveness of the contested regulation

the Government was paying the same conditions of employment for employees of schools and educational

device, that before that date, i.e.. on September 1, 1997, applied the same

regulations, and therefore could not nedospět to the conclusion that the contested regulation

If the Government still pays the same physical units of time, effectively

increases the current recruitment of teachers and other pedagogical

workers, over and above the maximum limit laid down in article 83 of the labour code.

Compared to some of the countries of the OECD (Organization for Economic

Cooperation and Development-Organization for economic cooperation and

development) made by the Government in its submissions, the appellants consider

a legally meaningless, entirely for the Supreme Court decision irrelevant

and also incorrect, as it is comparing the incomparable. In other countries

is there a maximum level of teaching duties, and even with a smaller volume of

teaching hours shall continue to be entitled to full pay. In addition to this in the

countries do not have the teachers reported comparable responsibilities in the form of various

construction supervision, etc.



II.



The Government in its observations dated June 16. January 1998, which was lodged within the meaning of § 69

Act No. 182/1993 Coll., on the Constitutional Court, States that the design group

members of Parliament and Senators discussed at its meeting on 14 July. January 1, 1998.



The Government particularly notes that the appellants ' objections can be summarized so that

conflict with the law in that it has exceeded its statutory mandate

contained in section 23 (a). h) Act No. 143/1992 Coll., as amended, and that the

has also violated § 83 of the labour code.



As regards the wording of the enabling provisions of section 23 (a). h) of law No.

143/1992 Coll., i.e.. that "Government regulation of peace teaching duties

teachers, the educational work of the other responsibilities of teaching staff and

educators ', and the wording of the title of section 2 of the Government Regulation, in which the term

interprets, States the Government, they are the same. The Government considers the wrong

the view that the obligations referred to in paragraph 2 (a). (b)) go beyond legal


mandate and that, therefore, there was a conflict with the provisions of article 8(1). 4 (4). 1

Of the Charter. Points out in this respect and on the opinion of the Institute of State and law,

the appellants argue that, in which it clearly states that the authorization

the Government based the law is adequate and that it can only examine whether

compared to the previous editing does not establish new obligations or whether

the contested regulation, the Government is not in conflict with the labour code, in particular

with paragraph 83. In the opinion of the Government, however, the violation of this provision

did not occur. From the special nature of the activities that youth workers

they arise as well as oddities in scheduling working time. Exactly

identifiable and measurable are the only activity consisting of direct teaching

activity or educational activities. Other activities are

taking into account their diversity and the diversity of individual

the experience and proficiency of the individual teaching staff

virtually nenormovatelné time. It is primarily for heads of schools and

educational institutions, in the context of its management and organisational activities

to ensure that the implementation of all tasks carried out in the framework of legal educators

the scope of the working time. The Government does not agree with the consideration of the appellants '

the existence of a direct dependency between the number of hours of direct teaching activities,

or direct educational activities and the number of hours of work-related and

downstream. In its view, none of the obligations provided for in §

2 (a). (b)) of the contested regulation the Government in violation of the provisions of the law.

For teachers and other educational staff is particularly § 35 para. 1

(a). (b)) of the labour code, pursuant to which the employee is obliged to according to

instructions of the employer be held personally works under a contract of employment in

set working hours. Another provision that governs their

obligations, in particular, § 51 para. 2 Education Act. All of these

However, the obligations, as expressly apparent from section 2 of the Government Decree No. 68/1997

Coll., can be fulfilled only in the scope of the fixed weekly working

of the times.



The Government does not agree to the challenge or "předústavnosti" the enabling

the provisions of paragraph 23 (c). h) Act No. 143/1992 Coll., and points out that the wording of

This section was amended by law No 40/1994 Coll., which came into

from 1 January 2000. April 1994. To the objection of the relationship between degree of direct

teaching duties and trying to zoom in, the comparability of quality of

education with the countries of the European Union, the Government states that, from the resources of the OECD and of the

sources of International Trade Union central-level shows that the rate of direct

teaching activities in the Czech Republic is lower than in most other

States, while in most developed countries is statutory hours of work on the

a few hours less than in the Czech Republic. This argument is illustrated by the Government

the annex, which contains a table comparing the length of the pedagogical

for committed teachers in hours in the Czech Republic and in the other seventeen

both European and non-European countries, articulated by grade schools. From

the comparison shows that the time devoted to direct teaching belongs in the Czech

Republic to the lowest.



For all the above reasons, the Government is of the opinion that the reasons for

cancellation of Government Decree No. 68/1997 is made.



As regards the formal requirements, it is noted in the comments that

Government Regulation has been approved by its resolution 12. March 1997 No. 141,

the Certified version is attached to the expression.



On 9 April. posted by April 1998 the Minister of education, youth and sports

the President of the Constitutional Court, the draft amendment of the annex to Decree-Law No.

68/1997 from the explanatory memorandum to this proposal, it is apparent that the proposed

the amendment seeks to remove some of the weaknesses that have occurred in the

connection with the release of the Government Decree No. 68/1997 Coll., and the fact that it has

be established for teachers of primary, secondary and higher vocational schools,

including special schools, the rate of direct teaching activities in the margin.

While the lower limit of the margin is usually the same as the level of direct

teaching activities, that was specified in the abolished Decree-Law No.

503/1992 Coll. for the teachers of nursery schools and teaching staff in the

the functions should be restored to the State that existed before the

the release of the Government Decree No. 68/1997 concerning the grounds for the proposed

the changes, in particular a considerable divergence is given by subjects, local

conditions and experience of teachers, which leads to the conclusion that it is desirable to

the specific level of teaching duties could provide for the Director of the school in

certain limits. The change has also to be presented to the system step in

the process of transferring the management powers from the Ministry to lower the articles

the proceedings, which would control education should approach the usual principles in

countries of the European Union. The Ministry also recalls that, at the same time

ready instructions of the Minister of the remuneration of teachers, depending on the

the number of hours of direct teaching duties. The instruction recommends that the teaching

the activities above the lower limit was valued personal payoffs, and at the same time

It is designed the procedure for determining the amount of this surcharge. The introduction of this

the new arrangements should not bring claims on the State budget, because in practice

would mean a major redistribution of nenárokových salary without increasing the

the total number of teachers (the increase in the female is permitted

schools). Need odučení more hours should be dealt with by increasing the short

jobs on full or overtime work. Also in this case

would thus strengthen the salary entitlement at the expense of the folders nenárokových,

which, in the opinion of the Ministry also corresponds to the requirements of Trade Union

authorities.



At the hearing, 29 June 1999. April 1998 remained representatives of the Government on the terms of

opinion that said in that direction that the profession also brings

the next time it's hard to normovatelné activity, which often don't happen

in the workplace. That is why these obligations of the Government regulation limits

up to the extent of the statutory working time. The Government is

convinced that the areal quantification is not possible, that describes the nature of the

the case and the need to move to a system that will evaluate the particular

activities according to local conditions. The Government wants to take such a step

the proposed amendment of the contested regulation. In addition, he recalled that the

the other hand, a number of indirect duties to teachers in the past years

fallen off.



III.



The Constitutional Court considers it indisputable that for teachers and other pedagogical

workers pay the full extent of the labour code and the regulations of this code

performing and that therefore the statutory weekly working time for this

category of employees is 42.5 hours, as well as that any

overtime work of this category of workers is subject to the same

as with other participants in the mode of employment relationships, thus

for this category of staff, § 96 para. 1 of the labour code, in accordance with

the work done by the employee to the employer or with the command

the agreement over a fixed weekly working time resulting from the advance

set working hours and held outside the framework timetable

overtime work is work that is restricted by statutory limits

and from that derive the General demands on the surcharge, or compensatory time off

(section 7 of the Government Regulation No. 108/1994 Coll.). For those employees to whom

It is for the extra pay for executives, is the salary set taking into account the

any overtime (section 10, paragraph 2, of Act No. 143/1992 Coll., as amended

version).



A comparison of Government Regulation No. 503/1992 Coll. with the current Regulation No.

68/1997, shows that she was elected somewhat different form of legislation.

While in the previously applicable regulation was a measure of the teaching duties

set directly in the text of the custom code, today is contained in the

a separate annex. Determination of the so-called. other duties [in both cases

as for section 2 (a). (b))] is formulačně. In both cases, however, are

limited to "into the range of weekly working time" with the fact that the footnote is

reference to the provisions of § 83 of the labour code and Decree No. 63/1968

Coll., on principles for shortening the length of weekly working time and for download

operating and working regimes with a five-day working week, as amended by

amended. The only noticeable difference is apparent from a comparison of the number of

hours of direct teaching duties (educational activities), however, should be

State that you cannot talk about a flat-rate increase in the number of hours. The same

the scope exists primarily for educators (specifically, 28 to 30 hours in the

school retinues and special kindergartens, 25 to 27 hours in the

facilities for institutional care, 30 to 32 hours in youth homes

, etc.), also for the masters of vocational education, the scope has not changed and is specified in the

the range of 30 to 35 hours. The teachers sets out Government Regulation No. 68/1997.

direct teaching obligation for one to two hours later (e.g. in

kindergartens 33 # 31 hours, on the level of basic school 24 # 23

hours, at the II. level of basic school 24 hours, instead of the 22 secondary schools 23

# 21 hours). At the same time, however, is somewhat less the basic obligation for

teachers and classes on the first level, which is compared with the earlier editing new

the created group with the duty of 20 to 22 hours. On the other hand, however, in


the new regulation for credit is missing the function class teacher who was

teachers 1. years of degree two hours and one hour for the others. U

the directors of the schools was also an increase of two, or in secondary schools

about an hour, in some cases, even to a reduction (e.g., for ELEMENTARY SCHOOL

over the eleven classes from 10 to eight hours).



As regards the objection that has exceeded its statutory mandate contained in §

23 (a). and) of the Act No. 143/1992 Coll., on the Constitutional Court is of the opinion that the

grammatical interpretation of the enabling provision would actually rather suggested

that will be in this Government Regulation only direct teaching activity

or direct educational activities, i.e. activities which are listed in section 2 of the

(a). and the contested regulation the Government.) From the fact that even for teachers and other

teaching staff is undeniably the statutory working time 42.5 h.,

as mentioned above, that is, logically cannot result anything other than

that, in the remaining time of carrying out additional work resulting from their

employment classification, according to the instructions of the employer [section 35 (1)

(a). (b)) of the labour code]. Definition of the activities in section 2 (a). (b)) is

contrary to the mandate arising from the law, but is rather superfluous,

as it expresses only what results from the Act. However, if it comes out of the

the principle of "non nocet superfluum", so that the excess is not harmful, can this

the fact itself be cause for annulment of the contested legal

Regulation, though you can certainly imagine that Government Regulation

limited only to the direct duty of teaching or education activities.

Can you even imagine the adjustment was less rigid and set in

much wider range of span, or a maximum allowable limit, which would

allow the directors of schools in far more fully take into account the conditions of the

schools, of course, innovations in teaching, etc. You can think of

even imagine, that would not be addressed in this area

legal regulation of at all, since none of the creative professions, among which

undoubtedly the profession belongs to, cannot be precisely defined, what is

own work and what are the activities that necessarily precede

or follow. Working hours in these occupations can hardly

lay down in the usual way, e.g.. in blue-collar jobs. Therefore, you can

In summary, that the contested regulation the Government by laying down binding peace direct

teaching duties (or obligations of the educational work) provides for de

facto ratio of both parts of the working hours referred to in paragraph 2 (a). and) and in section 2 of the

(a). (b))-here, as already stated, somewhat superfluously.



As regards the claim that the increase in the number of hours of direct teaching or

educational activities in violation of § 83 of the labour code, the Constitutional Court

the view that the contested regulation the Government itself new responsibilities

does not constitute. As is apparent from the above, the General conclusion about the nature of the

of this regulation, this legislation that in some cases

provides for a greater number of hours of direct teaching duties or educational work,

amended at the same time the ratio between this work and the work of others, but within the

the statutory working time. For example. the increase from 23 to 24 hours the ratio changes from

0.54 to 0.56, in increase of 22 to 24 hours the ratio changes from 0.52 to 0.56

etc. This change of the ratio, except that as to the level of a small and not

considerable (as claimed by the appellants), does not even necessarily to cross

the statutory working time. However, this does not exclude that it may in particular

the case occur to populate all the characters of overtime and the emergence of

claims arising out of it.



In General, the Constitutional Court considers relevant to recall that in accordance with

article. 78 of the Constitution, the Government is authorised to issue regulations for the implementation of the law in

the limits, which means that the Government does not need the explicit delegation in

the relevant law. However, the regulation cannot diverge from the statutory limits,

cannot therefore be praeter legem. In other words, it must keep within the limits of

the law, which either are defined explicitly, or arise from the meaning and

the purpose of the Act (see the preamble to the Constitutional Court, SP. zn. Pl. ÚS

17/95 of 25 October. 10.1995, St. 4, pp. 161 Collections awards and the resolution of the TC

The Czech Republic). Of these limits, the Government nevybočila.



For all the above reasons, the Constitutional Court members and the group design

a group of Senators has rejected.



The President of the Constitutional Court:



JUDr. Kessler v. r.