Labor and Contract Law Aspects

The Regulation of Employment Contracts and Collective Bargaining in Serbia - Labor and Contract Law Aspects Presented by: Prof. Dr. Senad Jašarević Date: 27 June 2023 The PLACE OF LABOR LAW IN THE LEGAL SYSTEM - Labor law represents one of the key branches of law in Serbia. - However, it seems it does not always receive the necessary attention from the state. - Legislative solutions are often belated in the light of the needs of practice. - Also, the state does not take sufficient care of the effective application of labor law, which is why regulations are often circumvented in practice. - In addition, judicial protection in labor disputes is too slow. The Theoretical Approach To Employment/Labor Contract - Employment contract in Yugoslav/Serbian doctrine • A central category of labor law • The basis for establishing a labor relationship • Form of regulating labor relationship • A basic means of scheduling the workforce • A means of regulating the intensity and type of work • Its essential features are voluntariness and consensuality (Tintić) Legal Features - Consensual - Commutative - Synallagmatic - Bilateral Contract The Subject-Matter - The subject-matter must be: • Possible • Permissible • Determined or determinable  Defined work, 2. Remuneration, 3. Subordination). - The cause must be: • Sufficiently defined and • (legally and morally) permissible • (The subject-matter of the employment contract must be a work conducted for the benefit of another person that is not prohibited - Lubarda). The Regulation Of The Employment Contract The Effective Serbian Law (In Short) - The legislator did not regulate the notion of the employment contract - Many issues in relation to employment contract are regulated by the LC, such as: • The obligation to conclude an employment contract, • Form of the employment contract, • Different forms of employment (for a definite and indefinite period, for work outside the employer's premises, for work at home), • Time of conclusion of contract, • Content and its place in the legal system, • Annex to the contract, • Termination, etc. Formal Requirements - Must be concluded in writing (if a verbal agreement is concluded - legal presumption of entering to employment relationship) - The obligatory content of employment contract - Employer is bound to keep the copy of employment contract - Must be in conformity with the law, collective agreement (CA), labor - Rules (provisions of the employment contract stipulating less favorable working conditions than in the law - shall be invalid) Other “Labor Contracts” - Temporary or occasional work contract - Special service contract - Contract on apprenticeship or professional development - Additional work contract - • THE NEW TYPES od LC are not regulated Special Labor Law Provisions Due To The Covid 19 Pandemic - 1. Ministerial decree on the preventive measures for safe and healthy work for the prevention of emergence and spread of an epidemic of an infectious disease (2020) - 2. The Guidelines for safe and healthy work from home (2021) - by the Directorate of safety and health at work - BASIC MEASURES: • Protecting measures • Work at home (with annex to the employment contract) COLLECTIVE AGREEMENTS Collective Agreement In Yugoslav/Serbian - Basic features of a collective agreement (Tintić): • (a) By its legal nature - it is a normative agreement (containing rules that are being applied as general rules of law); • (b) A trade union organization acts on behalf of the workers as a contracting party (while another entity not organized as a trade union may act on behalf of the employees, if permitted by law and when there are no trade unions); • (c) It must be concluded in writing (the form is an essential element) - hence it is a formal contract; • (d) Is concluded for an indefinite/definite (Serbia) period; Scope - Territorial (regional, provincial, local) - Personal (profession) - Mixed a) inter-confederal (inter-categorial), enterprise, plant CA - EXTENSION OF CA Legal Nature Of The CA - Very specific - "atypical agreements" - "At the crossroads between private and public law” - "Legal chameleons in the world of legal beings" - It has the "body" of the contract, the "soul" of the law (legal effect) The Regulation Of Collective Agreement Effective Serbian Law - No definition - Must be concluded in writing - No duty to conclude CA, but duty to negotiate in good faith Subjects - Representative organizations of social partners • When no association can be considered representative - the unions or the employers' associations can conclude an association agreement - If there is no trade union • Special "agreement" (on wages), concluded by the employees' council or the workers themselves with the employer The Levels Of Collective Bargaining - 1) NATIONAL = GENERAL CA (entire territory of the country not existing GENERAL COLLECTIVE AGREEMENT was concluded in 2008- expired 2011 since collective agreements are valid for a maximum of 3 years. - 2) BRANCH/SECTORAL = SPECIAL CA (branch for the territory of the whole of Serbia, as well as for the territory of a unit of territorial autonomy/province or local municipality) - sectoral bargaining is the most developed - 3) CA WITH THE EMPLOYER Application Of Collective Agreements Legal Effects Of Collective Agreements - Collective agreement is considered a source of law, by legal force immediately after the law and bylaws - Collective agreements have priority over labor rulebook and employment contracts the employment relationship can be regulated by the labor rulebook and the employment contract only when the LC so provides - when collective agreement is not concluded (LC Arts. 1, 3) - However, such a legal solution did not encourage collective bargaining in practice. The Personal Scope Of Application Erga Omnes Effect - 1) EMPLOYEES - The collective agreement is binding on all employees, including those as well who are not members of the union, which signed the collective agreement. - 2) EMPLOYERS - a collective agreement applies to all employers who are members of the association that signed the collective agreement, as well as to those who join it subsequently. (LC, Art. 262) Extension of CA - The Government may, at the proposal of social partners, extend the effect of a collective agreement - if there is a justified interest (in order to ensure equal working conditions or to alleviate differences in wages). - The condition is that the collective agreement whose effect is extended obliges employers employing more than 50% of employees in a certain branch, group, subgroup or activity. Some employers, or association of employers, may apply for exemption from the collective agreement with extended effect should they not be able to implement that collective agreement due to financial and business results (Art. 258,2 par. 2 of LC). The Settlement Of Labor Disputes Related To CA - Arbitration - Conciliation (mediation) - Preventive mediation. - Informal (state) mediation - Court procedure (for interest dispute)