Shape Employment Relations in Slovakia

The Rules on Employment Contracts and Collective Agreements and Their Power to Shape Employment Relations in Slovakia Presented by: Dr. Dolobáč Date: 21 June 2023 Content Of The Presentation - - - Contractual system in Slovak labor law • Specific methods of regulation • Relationship between the Labor Code and the Civil Code • Numerus clauses of contracts in labor law Employment contract • Dependent work • “self-employment” as a statutory body in a legal entity/person? Collective relationships • Actual problems Contractual System In Slovak Labor Law - Specific Methods Of Regulation - The method of mandatory regulation (ius cogens) ensures the application of public law elements while the method of dispositive regulation (ius dispositive) shows the private law elements. - The social function diverts contractual labor law substantially from other private branches of law. Despite tendencies for liberalization, the theory and practice are based on the idea that labor law and its basic code, the Labor Code, are fundamentally mandatory in nature. - Relative mandatory norms • The relative mandatory nature of Labor Code is expressed by the provisions of Section 1 par. 6 of the Labor Code In employment relations, the terms and conditions of employment and working conditions of an employee may be regulated more advantageously than this law or other labor law regulation provides, unless this law or other labor law regulation expressly prohibits it or unless it follows from the nature of their provisions that they cannot be deviated from. - Relative mandatory norms • - Maximum (working time) and minimum (minimum wage) standards Period of notice (Section 62 LC) • 1) The period of notice shall be at least one month, unless this act stipulates otherwise • (2) The period of notice for an employee who is given notice for the reasons stated in Section 63 paragraph (1) letter (a) or (b) or because the employee's health condition has, according to a medical opinion, caused the long term loss of their ability to perform their present work, shall be at least  a) two months if the employer in employment relationship has employed the employee for at least one year and less than five years as at the date of delivery of notice, b) three months if the employer in employment relationship has employed the employee for at least five years as at the date of delivery of notice Contractual System In Slovak Labor Law - Relationship between the Labor Code and the Civil Code - Section 1 par. 4 of the Labor Code: "unless this Act provides otherwise in the first part, the general provisions of the Civil Code shall apply to legal relationships under paragraph 1 (individual employment relationships in connection with the performance of dependent work of natural persons for legal persons or natural persons and collective employment relationships)." - Very limited extend of the subsidiary “general provisions” of the Civil Code - Subsidiarity thus applies to general issues such as the definition of a natural person, a legal person, legal acts, method of concluding a contract, etc. - Several typical civil law instruments are excluded (due to the fact that they are not regulated in the Labor Code and at the same time subsidiarity is not allowed) • A typical example is the set-off of mutual claims or the assertion of the right to payment of statutory interest - “… the rights and obligations arising from employment relationships cannot become terminated in other ways not specified in the Labor Code, even if the employee and the employer have expressed a willingness to do so. Due to the fact that the Labor Code does not recognize other than the above stated methods of termination of rights and obligations, and because the legal consequence of a set-off is the extinction of a receivable, receivables from employment relationships represent receivables that cannot be set off and cannot be challenged by an unilateral action." (Supreme Court of the Slovak Republic 2Cdo 103/2008) - Labor Code “does not allow the application of the provisions of the Civil Code concerning the statutory interest in the event of debtor's delay", thus not even in the case of granting a claim for invalid termination of employment (District Court of Čadca 14C/142/2011, Regional Court in Bratislava 5Co/133/2013) - Analogy of law • Given the limited subsidiarity of the general provisions of the Civil Code in the relationship between these two branches of private law, a certain analogy also has its place • The analogy of the instruments (elements) of the Civil Code will be allowed where law enforcement authorities will have no other choice, i.e. in cases where labor law is so insufficient that without the use of the special part of the Civil Code or without the use of other civil law regulations, its provisions would be obsolete  F. E. securing of frights and obligations resulting from labor-law relations - by an agreement on wage deductions, by a surety or by the establishment of right of lien to real estate • The analogy of law and the use of the elements of the special part of the Civil Code are inadmissible in cases where they would result in the application of such provisions of the Civil Code or special regulations that are clearly in conflict with the protective function of labor law, i.e. the protection of the weaker party  F. E. contractual penalty Contractual System In Slovak Labor Law - Numerus clauses of contracts in labor law - Limited Choice of Contract Types • The limitation of contractual types is derived from the wording of Section 18 of the Labor Code, according to which a contract according to the relevant provisions of labor law is concluded as soon as the participants have agreed on its content.  From the quoted wording “according to the relevant provisions of labor law" was set up the so-called "numerus clausus" of contracts and arrangements in labor law  It transforms the "what is not prohibited is permitted", typical for contract law, into the non-traditional "what is not permitted is prohibited" • Practical problems • F. E. • Recruitment allowance agreement • Redemption from the period of notice Employment Contract - Dependent Work - “Self-employment” as a statutory body in a legal person - Is it dependent work or not? - A company with the limited liability - one and the same person - • As a partner creates the general assembly • Is in a position of a statutory body • Is an employee of the company Illegal work and illegal employment (Act no. 82/2005 Coll. on Illegal Work and Illegal Employment) - Fine - the lowest limit is set at € 2,000 for a single violation and 5,000 for multiple violations additional payments - tax and insurance contributions - Lost (revocation) of the trading license - repeated violations and a serious violation of the Act exclusion from the state aid and public contracts Collective Relationships - Actual Problems - Wage as a reward for the attendance at work • As a right agreed in a collective agreement • ? discrimination of a pregnant employee, employee with health disability, lone employee, employee with responsibilities for family etc. - Representation of a trade union • The practice has been encountering a relatively serious problem of trade unions reporting their activities to an employer while none of the employer's employees were members of this trade union and, ultimately, the representation of this trade union is not even formal • No more is valid that a trade union can operate at an employer even if it has no other members • Since 1/3/2021 the Labor Code provides employers with a tool for protection against such actions of de facto inactive trade unions - an arbitrator • For a period of 12 months from the date on which the arbitrator announced that there were no employees among the members of the trade union, that trade union shall not be considered to be a trade union operating at that employer.