“The crisis and national labour law reforms
A mapping exercise”
Background note for the
EP Intergroup Bureau meeting 18 October 2011
Stefan Clauwaert
ETUI Senior Researcher
European
Trade Union Institute
Bd du Roi Albert II, 5
1210 Brussels
Belgium
1
Introduction
In his address to the European Parliament of 14 September 2011, ILO Director-General Juan
Somovia stated: “Respect for fundamental principles and rights at work is non-negotiable; not
even in times of crisis when questions of fairness abound. This is particularly important in
countries having to adopt austerity measures. We cannot use the crisis as an excuse to
disregard internationally agreed labour standards.”
In the recent G20 meeting of Labour and Employment Ministers in Paris on 26-27 September
one of the in Cannes the promotion of effective application of social and labour rights and
ensuring respect of fundamental principles and rights at work formed one of the key
recommendations.
However, over recent times, ETUC and its affiliates are informed about and confronted with very
worrying trends of labour law reforms in many Member States under the argument of the need
to render labour markets more flexible as one of the most adequate responses to the current
crisis Europe is in. Whereas in some countries it only consists of piece-meal though important
deregulatory measures, in others it concerns very intrusive overhauls of whole labour codes with
the same deregulatory effect as objective. Furthermore, in several countries it consists of
fundamental changes to industrial relations structures and processes and which might
jeopardise the future and impact of social dialogue and collective bargaining in these countries.
This note is a first attempt to map these labour law reforms in the different member states. It is
surely far from exhaustive for several reasons. First, it only deals with labour law reforms and
changes (and thus not with other anti-crisis measures taken in many countries in relation to
(minimum) wage setting/cutting, lowering or even cutting of social security and social assistance
protection and benefits, cuts in public services, etc.). Secondly, it deals mainly with
developments having occurred in the reference period 2010-2011. And thirdly, this also due to
information and time constraints, it surely does not touch upon all EU 27 member states (also
because some countries following their industrial relations traditions “trust” less in law but
rather more on the social partners for the well-functioning and eventual reforms of their labour
market systems).
It consists of two main parts: firstly an executive summary in which the different reforms are
briefly and thematically described. In a second part, more detailed information is provided on a
country per country basis. The information gathered stems from different sources being: 1)
2
information provided to the ETUC by its affiliated organisations, 2) so-called Memorandums of
Understanding certain countries have with the IMF, EU and ECB, and 3) other sources like the
Dublin Foundation EIROnline website (http://www.eurofound.europa.eu/eiro/ ), other (and
only a very limited number so far of) (electronic) newsletters (e.g. www.planet.labour) and
articles in literature.
Apart from being in first instance a mapping exercise bringing together information on the
different reforms taken or ongoing in the different member states, this note also hopes to form
an important warning signal and helps to raise awareness of all relevant actors, so including
Members of the European Parliament, of the fact that more closer monitoring of these reforms
are necessary as it is feared by ETUC and its affiliates that some of them run counter the
obligations the concerned countries have under fundamental ILO and Council of Europe
standards and EU norms. In
fact,
in some countries trade unions reacted not only by
demonstrating or organizing general strikes but also by filing complaints to the respective ILO
and Council of Europe instances on alleged violations of the countries obligations under these
international and European norms by these reforms (e.g. Greece, Hungary and Slovakia). In that
sense it should be reflected to put all other reforms in the other countries under scrutiny and
indeed investigate their alignment with international and European norms.
Therefore, ETUI will continue to conduct this monitoring, gather the necessary information and
review, amend and complement the information contained (in the different parts of) this note
accordingly.
Stefan Clauwaert
ETUI Senior Researcher
3
I.
Executive Summary
As mentioned in the introduction, mainly three forms of labour law changes/reforms can be
identified. Firstly, fundamental changes to industrial relations structures and processes and
which might jeopardise the future and impact of social dialogue and collective bargaining in
these countries. Secondly, vast overhauls of whole labour codes and thirdly, rather piece-meal
changes to specific aspects and rules of labour law. Whereas in part II of this note, these
changes/reforms are described on a country-based approach, a more thematic-based approach is
used below.
Changes to industrial relations and collective bargaining systems
In this framework, three distinctive clear trends can be identified. Firstly, there is the clear
ambition in many countries to decentralize collective bargaining by introducing a clear shift from
national/sectoral collective bargaining to company level bargaining. Very concrete examples of
this can be found in amongst others Italy, Greece, Portugal, Spain, Romania. Apart from shifting
the onus to other levels, there is often the (additional) problem of allowing also via these “lower
level bargaining” outcomes to deviate in a less favourable way of protection by higher level
collective agreements or even statutory legislation. Examples of the latter can be found amongst
others in Greece, Italy and Slovak Republic.
Second trend which can be identified is the adoption of measures tempering with on the one
hand representativeness criteria for social partners to be recognized (e.g. Portugal, Romania)
and on the other hand providing what used to be trade union prerogatives before to other forms
of workers’ representation (often at company level) (e.g. Portugal, Slovak Republic).
Finally, there are the examples of some countries abolishing (e.g. Hungary) or at least
diminishing the role of certain (tripartite) social dialogue institutions by either the Government
withdrawing from such bodies (e.g. Romania).
Atypical contracts (fixed term, part-time and temporary agency work) and new types of
contracts
Another clear trend is that manifold member states have tried to render their labour market
more flexible by intervening in the rules governing atypical contracts. The manner how is often
also very consistent by either extending the maximum length of period for fixed-term contracts
4
(e.g. Czech Republic, Greece, Poland, Romania, Slovak Republic, Spain) or the number of
renewals (e.g. Slovak Republic).
Other countries opted for the introduction of or amendments to the regulation of temporary
agency work, although it must be noted in this context that this might be more due to the
attempts of the countries concerned to implement Directive 2008/104 on temporary agency
work (deadline December 2011).
More or less linked to this feature of re-regulating atypical contracts is that one can notice in
several member states the installment or creation of “new (types of) contracts”. New types of
contracts for specific groups of workers (like young workers) and/or under which the protection
is of course less than for normal employment contracts. Examples can be cited from the Czech
Republic (agreement to perform work), Greece (new “youth contract”), Poland (ideas concerning
“project contract”), Slovak Republic (new “shared job” system) and Spain (“demonstration
contracts” and new “contracts for young unskilled workers”)
Redundancy rules
Third set of changes relate to redundancy rules. These often range from lowering of severance
pay entitlements (e.g. Czech Republic), altering the periods of notice in less favourable way (e.g.
Slovak Republic) or adding new reasons for allowing for individual dismissals (e.g. Portugal and
Spain).
Working time
A fourth set of amendments concern working time arrangements in the broad sense. This ranges
from an increase of maximum length of shift periods and possibility to for increased amounts of
potential hours overtime to be negotiated into the salary (Czech Republic), to extended
possibilities to work overtime and perform night work (Slovak Republic), extension of reference
periods to calculate working time (Poland) to for example providing changes to the possibility to
reduce/limit the amount of compensation for overtime both in kind and time off (Portugal)
Other issues
As for other issues to highlight, reference could be made to extending trial periods in general or
for certain categories of workers (Czech Republic, Slovak Republic and Romania) or more drastic
5
proposals like exempting small enterprise (with fewer than 10 workers) from (new) employment
legislation for a period of three years (UK)
6
II.
Country per Country analysis
Bulgaria
Although on 30 March 2010, the National Council for Tripartite Cooperation (NCTC) managed
to reach an agreement on a new anti-crisis package containing 59 measures, the government
unilaterally introduced a 60th measure on which no compromise could be found during the
negotiations on the new package. The contested measure concerned in particular the payment of
the first three days of sick leave. Whereas, at present, employees receive a 100% of the daily
payment for the first day from the employer and as from the second day 80% via the National
Social Security Institute, it was now proposed that the employer would pay the first two days and
the third day would be at the expense of the employee. Final outcome seems to be that the
employer will be responsible for paying the first three days at 70% and the NSSI as from the
fourth day at 80% of the sick leave allowance;
As for other relevant ‘labour law” measures in the package one could highlight the introduction
of the possibility for the Minister of Labour and Social Policy to extend the application of sectoral
collective agreements to all companies of the respective branch or industry.
Also on a more positive note, in November 2010, within the NCTC, two national agreements, one
for home-based workers (and relating to Bulgaria’s ratification of the ILO Convention n° 177 on
Home work of 1996) and one on telework (implementing the European social partners’
agreement on telework of 16 July 2002) were signed. Both issues formed part of the “Bulgarian
path 2009-2011”, Bulgaria’s strategy to reform the labour market by ensuring both more
flexibility as well as security. Although the conclusion of these two agreements is considered to
be a milestone for the social dialogue in the country, to ensure effective rights they will need to
be accompanied by changes in social security and tax legislation. After the failure of social
partners attempts to establish a framework of rules on temporary agency work to implement EU
Directive 2008/104/EC, a tripartite forum is now established and an outcome is expected by end
2011. Bulgarian trade unions already expressed that the first drafts would too much flexibility
and far from enough security for this type of work and the workers engaged in it.
Czech Republic
On 1 January 2011, important changes to the Czech labour code came into force.
7
Although some of them are to be welcomed as they tighten the regulation of (atypical)
employment contracts, other changes, mainly relating to the reduction and even cancellation of
social support allowances.
On the positive side, there is firstly the written formalisation of the “agreement to perform work”
(dohoda o provedení práce) via an amendment to Act no 262/2006 Coll. This is a form of
employment which can be concluded for a maximum of 150 hours per calendar year, but subject
to more flexible rules than the labour contract (e.g. in relation to termination rules, payment of
health and social insurance). Secondly, stricter rules are installed for employment agencies
which now need to have an insurance in case of insolvency of the agency or one of its customers
(the premium amount must be three times the average monthly earnings of all temporarily
assigned employees) and they now need a permit to operate from the Ministry of Interior.
Less positive is that unemployment benefits are reduced for workers who terminate their
employment relationship without compelling reason but nevertheless qualifies for a severance
payment. The worker does not receive the unemployment benefit now for the period
corresponding to the value of the severance pay.
Despite these changes brought in January 2011, new ones are already envisaged and are hoped to
come into force on 1 January 2012. Scheduled amendments provide for amongst others:

An extension of the maximum length of a fixed-term contract from 2 to 3 years but could
only be prolonged twice (in stead 3 times now); nevertheless it could mean that a
maximum length of a fixed term contract of 9 years is possible

As for the “agreement to perform work” (see above) the amendment provides for an
increase of the 150 hour limit per calendar year up to 300 hours per calendar year and if
the income of the calendar month would exceed a certain amount (about 400 euros) it
would be subject to social security and health insurance contributions which is not at all
the case now.

Other amendments foresee in possibility to agree on extended trial periods for
managerial employees up to 6 months (now 3 months and applicable to all workers)

The concept of temporary assignment (i.e. an employer hiring out his/her employees to
another employer) outside the framework of an employment agency is re-introduced.
Unlike the agencies these employers will not need a permit to perform such hiring-out.
Furthermore as from 1 January 2012, a new ban on assignment in the form of agency
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employment of foreigners from third (non-EU) countries and disabled employees would
be introduced.

Also amendments to the rules on severance pay are envisaged. Whereas now all
employees, including newly hired ones, receive three months of severance pay if
dismissed for organisational grounds, the amendment foresees a 1 month severance pay
in the first year, 2 months for the second year and only who has worked more than 2
years will receive the current 3 months’ pay.

As for working time and overtime pay, it seems that amendments are likely to maximum
shift length of 12 hours for both even and uneven schedules of working hours (whereas
now it is maximum 9 hours for even shifts) and they also provide for the extended
possibility to negotiate the inclusion of potential overtime work in the salary. Up to 416
hours overtime per calendar year for managers (now up to 150 hours) and up to 150
hours for other workers (whereas this was not possible before).
Greece
Most recent reforms to make the labour market more flexible date from June 2011 when
amongst others the following measures were proposed:

A new “Youth” contract, for the recruitment of young people (up to 25) with a salary 20%
lower than what used to be offered for a first job, with a 2-year trial period, with no social
contributions for employers, and no entitlement to unemployment benefits at the end of
the contract. On the other hand and before hiring under such contract, employers will
have to prove that they did not cut staff within the past three months; idem for seasonal
businesses that will have to prove that they did not cut staff at the same period the year
before.

Adjusting working time. Depending on businesses’ needs and situation, it will be
possible to increase working time. Thus, employees may work two more hours each day,
for up to 6 months a year, provided that working time is equally cut for the rest of the
year. Such adjustments are possible within the framework of a company collective
agreement, or of an agreement between the employer and union or works council.

Flexible working time: the possible period of successive fixed-term contracts goes from 2
to 3 years.
As for changes to the industrial relations system, the most remarkable dates only back to end
2010 via Law 3899/2010 passed in December 2010. Until law 3899/2010 was passed, the
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principle of applying a regulation that is more favourable to the employee in case of concurrent
sectoral agreement (CEAs) applied absolutely; there was no possibility of departing from it. Law
3899/2010 introduced a new type of company-related CEA, the ‘special company-related CEA’,
which may provide for remuneration and other working terms that are less favourable than the
remuneration and working terms provided for by the respective sectoral CEA. Minimum wages
and minimum working conditions at national and intersectoral level are still laid down by the
National Collective Labour Agreement (EGSSE). Law 3899/2010 subjects the conclusion of the
special company-related CEA, as well as its extension and renewal, to a preliminary procedure:
parties interested in concluding a special company-related CEA submit to the Social Inspection
Council of the Labour Inspectorate (SKΕΕΕ) a joint explanatory statement setting forth the
reasons that justify their intention to enter into a special company-related CEA. SKEEE’s opinion
is not binding, however. This means that parties may proceed to conclude the special companyrelated CEA despite the Council’s opinion otherwise.
To be noted also is that currently two collective complaints lodged by trade unions are pending
against Greece under the collective complaints procedure to the Revised Social Charter Council
of Europe. It concerns more in particular the following complaints:
No. 66/2011 General Federation of employees of the national electric power corporation
(GENOP-DEI) / Confederation of Greek Civil Servants’ Trade Unions (ADEDY) v. Greece
whereby according to the complainant trade unions the measures relating to remuneration
and working conditions contained in Act No. 3899/2010 of 17 December 2010 are in violation
of Articles 1 (right to work) , 4 (right to a fair remuneration), 7 (the right of children and
young persons to protection), 10 (right to vocational training), and 12 (right to social security)
of the European Social Charter, and
No. 65/2011 General Federation of employees of the national electric power corporation
(GENOP-DEI) / Confederation of Greek Civil Servants’ Trade Unions (ADEDY) v. Greece
whereby according to the complainant trade unions the measures relating to remuneration
and working conditions contained in Act No. 3899/2010 of 17 December 2010 are in violation
of Article 4 (right to a fair remuneration) of the European Social Charter and Article 3 of the
Additional Protocol of 1988 (right to take part in the determination and improvement of the
working conditions and working environment).
10
More
information
is
available
at:
http://www.coe.int/t/dghl/monitoring/socialcharter/Complaints/Complaints_en.asp
Hungary
As for the reform of the labour code in Hungary, and which seems to be one of the most
deregulatory initiatives ongoing for the moment in the European Union both from a labour law
and industrial relations point of view, developments are moving rapidly. Therefore, in the
framework of this note, we refrain ourself by putting in the annex 1 and 2 respectively a recent
newsletter of September 2011 of the trade union LIGA one of the ETUC member organisations
and an analysis by ETUC/ETUI experts on the potential problems the proposed changes to the
Labour Code might bring in relation to Hungary’s obligation under the (Revised) Social Charter
of the Council of Europe.
Italy
The Italian Chamber of Deputies approved on 14 September 2011 a new budget austerity plan
which includes as main novelty in the industrial relations/labour law area the possibility to
derogate, with a company agreement, from conventional and statutory provisions, including
those governing layoffs. This relates to the extremely controversial so-called “article 8” of Decree
n° 138 of 12 August 2011 which allows indeed company or regional local agreements to derogate
from national laws and collective agreements and is now further clarified. The conclusion of
these special agreements is allowed in order to “increase employment, improve the quality of
employment contracts, put a stop to illegal labour, increase competitiveness and pay, manage
industrial and employment crises, and encourage new investments and the start of new
activities.” As for the signatory parties to the agreement and whereas before the rather flue
expression “union representation structures operating in the company” was used, this is now
replaced by “trade union organizations operating in the company following existing laws and
interconfederal agreements”, thereby at least more likely avoiding the creation of fictitious trade
unions in the company. These special derogating agreements are be valid for all the workers
concerned provided that they were signed by a majority of the union organizations thus defined.
These agreements may affect “all aspects of labour organizations and production” including
“recruitment modalities and the regulation of the working relationship” as well as the
consequences of the termination of the employment relation, except for discriminatory layoffs.
Indeed, the text rules this derogation possibility out for provisions governing layoffs on the
ground of wedding, pregnancy or maternity and until the child’s first birthday, as well as layoffs
11
following a request to take parental leave to care for a sick child or after adopting. Furthermore
it is stated that these derogatory agreements and the eventual exceptions contained in it still
have to comply with the Constitution, Acts transposing European directives and international
labour conventions.
This clarification of “article 8” has to be read in conjunction with the adoption on 28 June 2011
of an interconfederal agreement which defines the criteria for union representativeness, the
universal validity of company agreements approved by a majority of unions, and extends the
possibility of derogating from national collective agreements at company level. Main objective of
this new interconfederal agreement is amongst others to ensure the further development of
company level bargaining, and except for the possibility to derogative company agreements, it
also ensures the universal validity of company agreements. As from now and unlike before if the
company agreement is approved by a majority of RSU members, they will be valid for all
employees, and not only those members of the signing unions. In businesses with RSAs (i.e.
company union representation body based on Act No. 300/70), the agreement applies to all
employees if unions composing the RSA that approved it received a majority of the union
contributions registered in the company the year before the signature of the agreement in
question. The interconfederal agreement also provides that RSAs will get a three-year term.
Agreements approved by RSAs will only be subject to workers’ vote if at least one of the
organizations signing the interconfederal agreement or at least 30% of workers in the company
request it within 10 days after the signature of the agreement. The agreement may be rejected by
a simple majority of voters.
Decree n° 138 furthermore lays down new rules for internships as, in particular to avoid
excessive internships, article 11 defines a uniform rule whereby internships can no longer exceed
six months and will only be open for high-school or college graduates within 12 months after
they graduate.
Ireland
The Irish government, as part of its bailout from the EU and IMF, has agreed to a range of
measures which directly impact the labour market. The terms are set out in the so-called
Memorandum of Understanding with the EU and IMF and provides amongst others in a review
of the framework of Registered Employment Agreements (REAs) and Employment Regulation
Orders (EROs) by the Minister for Enterprise, Trade and Innovation. REAs are legally binding,
sectorally agreed minimum pay and conditions which exist in certain sectors (e.g. construction,
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electrical contracting, agricultural, etc.) Wage levels are regulated in these sectors by employers
and worker representatives reaching specific agreements about pay and conditions of
employment, either through REAs or EROs, following consideration by Joint Labour
Committees (JLC’s). The terms in each case are protected by legislation. According to a
government statement accompanying National Recovery Plan 2011-2014 published by the
Government on 24 November 2010, this review is necessary as EROs and REAs are fuelling
‘labour market rigidity by preventing wage levels from adjusting’.
In April 2011, a report on this “Independent Review of Employment Regulation Orders and
Registered Employment Agreement Wage Settling Mechanisms” was published. In general the
report states that the continued maintenance of the current system of JLC’s and REA’s is
necessary and justified. In the case of JLC’s the overriding rationale for this conclusion is the
need to provide for some mechanism for the maintenance of reasonable employment standards
for unorganised vulnerable workers in the concerned sectors. As for the REA’s, the report
identified a need for a system by which collective agreements concluded between substantially
representative parties can be made universally applicable and given legal effect. However, the
report concludes as well that nevertheless the system requires radical overhaul so as to make it
fairer and more responsive to changing economic circumstances and labour market conditions
and makes 19 recommendations in that sense.
It remains thus to be monitored how this reform process will be further be processed.
Latvia
In February 2011, the Latvian Cabinet of Ministers supported several amendments to the Labour
Law. Some related to the transposition of Directive 2008/104/EC on temporary work agencies,
while others however seem to simplify the procedures employers need to follow in case of
collective redundancies by altering the thresholds of total number of employees in the enterprise
following which one has indeed a case of collective redundancy and thus need to inform the State
Employment Agency.
Poland
On June 2, 2009, the Council of Ministers adopted two laws partially based on the propositions
negotiated with the social partners. One of them was aimed at "downplaying the impact of the
economic crisis on workers and employers" and included measures regarding labour law in
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particular in relation to reference periods for working time, limits to fixed-term contracts and
partial unemployment schemes. In particular the law provides for the following:

The reference period used to calculate working time can be brought up to 12 months
(instead of three currently) but to be set in a company agreement. The bill also provides
that more rushed work periods may be compensated by slow periods or additional resting
days;

When taking posts twice a day, the hours performed the second time around are not
considered as overtime. So-called flexible count of working time or doba pracownicza.
Individual working schedules may also be applied if the worker requests it to take care of
a relative or of a child under 14;

Fixed-term contracts are limited to a maximum of 24 months.;

Whereas the 3 abovementioned measures apply to all businesses, the law also provides
for specific measures for companies with temporary financial difficulties such as a
possibility for maximum six months to reduce working time and pay and the introduction
of an “inactivity leave” allowing employers who cannot provide their employees with
work to send them away for a maximum of six months and this as an alternative for
massive lay-offs;

Furthermore, the bill introduces special protection for employees receiving benefits due
to decreased activity and for employees attending training as they cannot be laid off for
12 months.
This “Anti-crisis Act”, enforced on 22 August 2009 will however expire on December 31, 2011. In
June 2011, the social partners, gathered within the tripartite committee (unions, employers and
government), opened talks in view of extending some of the provisions of this Act. In particular
on the menu were: the maximum duration of fixed-term contracts, the introduction of a "project
contract" and the extension of the reference period for the calculation of working time.

Maximum duration of fixed-term contracts. Whereas article 25 of the Labour Code
provides that employers can only sign two fixed-term contracts in a row with employees,
by way of exception article 13 of the “Anti-crisis Act” allowed signing several fixed-term
contracts in a row with the same employee provided that they do not exceed 24 months.
One new proposal put on the negotiation table by the employers was to introduce the
possibility for fixed-term contracts of maximum 4 years with the alternative that it could
become a permanent contract after two years. However, in that case for the next two
years, employers would be allowed to terminate the contract with a one-month notice
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without a reason. At their last meeting, in September 2011, the social partners agreed to
limit fixed-term contracts to 18 months tops, regardless of the numbers of successive
contracts. Should the employment relationship extends after the end of the contract, the
fixed-term contract would automatically become permanent. The social partners want
these principles to be added to the Labour Code.

Extending the reference period for the calculation of working time. Whereas according to
the Labour Code the reference period for the calculation of working time is three months,
it has been extended to 12 months in the “Anti-crisis Act”; again employers would like to
make the 12 months the rule and repeal the three months period as said in the Labour
Code. At the last September 2011 meeting, the social partners decided to split the
difference and brought it to 6 months. Extending the reference period from 3 to 6
months could be done via company agreements signed with unions. If there is no union
in the company, the agreements may be signed with other employee representatives and
notified to the Labour Inspectorate.

Introduction of a “project contract.” Also a proposal of the employers’ side is the
introduction of a new contract, a “project contract,” signed with employees in view of the
achievement of a special project for which the contract is signed. Such a contract could
even last for more than four years. It is unclear whether this proposal is still on the table
or not.

Furthermore, and next to the points mentioned above, the social partners also committed
themselves at the September 2011 meeting to develop a joint position on the
representativeness of union and employers’ organizations, in particular looking at
introducing a representativeness criterion at sectoral level, and to look at establishing
rules on the ability to sign collective agreements at company level by employee
representatives in particular in companies where there is no trade union representation.
Portugal
In its Memorandum of Understanding with the European Commission, ECB and IMF of 17 May
2011, the Portuguese government agreed to pursue some important labour market and labour
law reforms, in particular in relation of the systems of severance payments, rules governing
individual dismissals, working time arrangements and wage-setting, collective agreements
between works councils and companies (all in principle had to be realized by end 2011) and
further reforms to the collective bargaining system (by second half of 2012).
15
As for the changes to the system of severance payments, a new law is in the meantime adopted in
on 8th September 2011 which provides that the basis for calculations for the severance pay is
reduced from 30 days to 20 days per year of tenure. Furthermore, the benefits cannot exceed 12
times the reference base (i.e. 20 days per year) and will be limited to 240 times the guaranteed
minimum wage. The new rules will apply for all cases of termination of the labour contract:
individual, collective, removal of the job, relocation, bankruptcy, restructuring, or even death of
the head of the company. The new law will apply to all labour contracts, be them open-ended or
fixed term, signed after its approval. The related idea of creating a compensation fund
cofounded by businesses but this is still under discussion between the social partners.
The Memorandum asks the government to prepare reforms to the law on individual dismissals
by the last quarter 2011 with the objective to make it fire workers amongst others by adding a
new reason for dismissal, i.e. in case ‘where the worker has agreed, with the employer, specific
delivery objectives and does not fulfill them and this for reasons deriving exclusively from the
workers’ responsibility’. Draft legislation on this has to be submitted by the first quarter 2012.
As for working time arrangements, the Memorandum provides for the minimum additional pay
for overtime established in the Labour Code to be reduced to a maximum of 50% (at present
employees are paid 50% extra for the first hour of overtime worked, 75% extra for additional
hours, and 100% for overtime during holidays) and it also wants an end to compensatory time
off, equal to 25% of overtime hours worked. As for the latter, it would however be possible to
revise these norms by collective agreements upwards but also downwards!
The Memorandum foresees also major changes to the Portuguese industrial relations system as
it is expecting that draft legislation is submitted by the first quarter of 2012 on amongst others:

The definition of criteria for the extension of collective agreements, including the
representativeness of the negotiating organisations (to be assessed by ‘both quantitative
and qualitative’ indicators) and how the extension will affect the competitive position of
non-affiliated firms;

A further reduction of the length of continued application of collective agreements that
have expired and not been renewed;

A further decentralisation of bargaining in favour of the company level bargaining;

To allow works councils to negotiate functional and geographical mobility conditions and
working-time arrangements;
16

the lowering of a company size-threshold, so that works councils can conclude
agreements with companies of 250 employees;

the inclusion of conditions, in sectoral collective agreements by which works councils
would be able to conclude firm-level agreements without the delegation of trade unions.
Romania
In July 2011, the Romanian government passed legislation in the form of Act 62/2011 which not
only governs new collective bargaining rules for all levels from national to company level, but
also regulates (representativeness criteria) for trade unions and employers’ organisations, the
functioning Economic and Social Council (CES), labour conflicts, etc. It extracts and/or changes
in a way the concerned rules on collective bargaining contained in the Labour Code (Law N°
53/2003), the Collective Agreement Law (Law n° 130/1996) as well as laws n°54/2003 (on
establishment, structure and management of trade unions) and the Employers’ Law n°
356/2001.
Major changes involve the following:

Abolition of the national unique collective agreement (as a reference point for collective
bargaining at all levels): this unique collective agreement used to stipulate minimum
rights and obligation applicable to all employees in Romania, irrespective of whether or
not lower levels were covered by collective agreements and set amongst others the terms
of reference regarding minimum wage, length of working time and working conditions.

Collective agreements which were previously negotiated for each branch of the national
economy (with 32 of those listed in the national unique agreement) have been replaced
by sectoral collective agreements. Furthermore those collective agreements for the
branches were applicable to all workers and all businesses in that branch, irrespective of
whether there were other agreements on company or group of company level. The new
“sectoral” agreements will however only apply to companies that are member of employer
organisations signatory to the sectoral agreement and can only be enforced at sectoral
level if more than 50% of all employees in the sector work for companies which are
member of the signatory employers’ organisations.
 Before collective bargaining was done annually and the national unique agreement was in
principle made for four years; now there is no longer a compulsory agenda for
negotiations. Only the minimum (12 months) and maximum (24 months) duration of a
collective agreement is fixed.
17
 Representativeness criteria: the new law sets out such criteria for social partners at all
levels (company, groups of company, sectoral and national). Whereas before 15 persons
working in same economic branch or profession, albeit in different companies, were
required to set up a trade union, it requires now 15 workers in same company. To note is
however that apparently 90% of the Romanian companies have up to 9 workers! As for
national representativity criteria, these are still required as only nationally representative
social partners may appoint representatives to the National Tripartite Council for Social
Dialogue (CNTDS), the CES and social dialogue committees for central and county public
administration bodies.

Furthermore, a trade union is only representative and allowed to negotiate a singleemployer collective agreement if a least half plus one of the company’s workers are
affiliated to it (compared to 1/3 under previous legislation). This also has as consequence
that only 1 trade union can be representative in one company compared to up to three
under old legislation. When there are no representative unions in a company because
there aren’t enough members, negotiations can be carried out by the federation to which
the existing union answers. If there is no union at all, negotiations will be carried out by
employee representatives only.

And as for the Social and Economic Council, this will become a public institution of
national interest charged with the creation of the conditions for a civic dialogue between
employers’ associations, trade unions and structured entities of civil society and
government thus leaving its place in the CES to the latter entities. A tripartite national
social dialogue committee, composed of union and employers’ representatives as well as
representatives from the financial and banking industry, is going to be set up and
coordinated by the Prime Minister, but it will only act in an advisory capacity.

And a mediation and arbitration body will be set up to handle industrial conflicts.
Apparently, and mainly due to the problems in getting social partners recognized at sectoral
level, collective bargaining has come to a standstill currently in Romania. In September 2011,
Romania’s five trade union confederations (Cartel Alfa, BNS, CLSR-FRatia, the Democratic
Trade Union Confederation of Romania and the Meridian National Trade Union Confederation)
and some employers’ organizations (Conpirom, the National Union of Romanian Employers and
UGIR-1903) joined forces and signed a memorandum of understanding (MoU) asking the
centre-right government to revive social dialogue as soon as possible in order, notably, to discuss
concrete measures to prevent a possible new economic crisis. Both employers and unions
apparently even think that the text conflicts with the ILO’s conventions and the principles
18
promoted by the different EU Treaties and have therefore –supported by the ITUC and ETUC requested the assistance of ILO experts.
With the first proposals being launched in December 2010, a reform of the Labour Code got
finally enforced on 1st May 2011. Main bottlenecks of discussion seem to have been the
prolongation of trial periods, the more flexible use of fixed-term contracts and (the abolition of
national) collective agreements. According to the new Code, the trial period is now longer and for
employees it goes from 30 to 90 days, whereas for executive positions it is extended from 90 to
120 days. Employers will also be allowed to try three candidates for the same position and can
multiply trial periods for the same job for up to 12 months. To note thereby is that according to
Romanian law, the trial period may be terminated without notice, at any time and without a
given reason. Furthermore, the maximum length of fixed-term contracts is increased from 2 to
3. Although hardly adopted, the European Commission apparently already asked for reviewing
some of the new provisions. In particular to further increase to bring the period of time off as
compensation for overtime work to 90 days whereas the new Labor Code already improved this
period from 30 to 60 days. The Commission experts also asked to be more specific and clearer on
what is meant with the “the extension of cases where employers may prolong fixed-term
contracts”.
Slovakia
Following an intensive debate which started in October 2010, Government adopted the proposed
changes in April 2011 after it had also had discussed these changes with experts of the ILO midApril. However the text was still significantly altered following a debate over the months June
and July in Parliament. The text of the new law was finally signed on 27 July and came into effect
on 1 September 2011. The main changes consist of the following:

Relating to the industrial relations system/employee representation: Any new union
organization created in a company after September 1, 2011 and claiming to represent all
employees would have to prove to the employer, if he requests it, that it represents at
least 30% of employees. For existing union organizations, employers will be able to apply
this system as of January 1, 2013. Furthermore, if a union organization and a works
council are active at the same time in the company, the union’s rights are lessened in
favour of the works council and it is now thus possible for workers’ representatives other
than unions to sign an agreement with the employer determining working and
employment conditions as in a collective agreement. In addition, and for the first time, it
19
is now possible in the Czech Republic to agree in a collective agreement upon working
and employment conditions that are less advantageous for employees than those
provided for in the Labour Code, although there are some strict exceptions stipulated.
For instance; less advantageous provisions cannot be agreed upon in relation to aspects
like the trial period and overtime (see below), the temporary suspension of work in
certain cases, the sanction for failure to comply with the notice period by employee when
they terminate the employment relationship and the employer’s obligation to offer
another job to laid off employees, under some circumstances.

As relating to working time, the changes provide for more flexibility regarding overtime
and night work. It is now possible to determine, in a collective agreement, that
employers may ask employees to work 100 extra hours beyond the current 150-hour
limit. While the maximum annual amount of overtime (commissioned and agreed to)
remains 400 hours for regular employees, executives may work 150 hours more than this
limit, i.e. a total of 550 hours. Regarding night work, employees may work at night for
more than weeks in a row if the job or conditions in the firm demand it.

As for fixed-term work, contracts can now last 3 years instead of 2. Besides, this
relationship can now be extended three times in this 3-year period (instead of twice in a
2-year period before).

In relation to trial periods, these remain 3 months for regular employees. However, it is
now possible to agree on a trial period of up to 6 months for managerial staff. In
addition, collective agreements may provide for an additional three months to the
maximum duration of the trial period for both types of employees, which would
respectively bring it to 6 and 9 months. In practice, this seems to come down to an
extension of the period during which employers and employees may terminate the
employment relationship for any reason or without giving a reason after a simple
notification issued at least three days earlier. However, as for the termination of the
contract during the trial period of a pregnant woman, of the mother of a child up to 9
months and of a breastfeeding woman, this can only be applied under extraordinary
circumstances which have nothing to do with the fact that she is pregnant or a mother.

Major changes affect also arrangements of flexible working time. Firstly, it concerns the
“flexi-account” system which enables employers with the consent of the company’s union
representatives, to send employees away if serious operational reasons are brought
forward. During the working time reduction period, employers have to pay basic pay to
their employees and when normal activity resumes, overtime will not be considered as
20
such. This anti-crisis measure was introduced in 2009 and supposed to end December 31,
2012 but is now thus permanently introduced in the Labour Code. On top of it a major
change now is that using the flexi account does no longer require the employers and
unions signing an agreement but can be done following a simple consultation with the
employee representatives (unions, works’ council, etc. ). In addition to the flexi account,
a new working time account is introduced which represents a special form of irregular
working time which employers may use for momentary needs to increase production or,
on the other hand, to reduce it. Again, to use the working time account, employers need
to sign an agreement with the workers’ representatives.

The amendments also introduce the new concept of a shared job whereby several parttime workers can work on the same job and they divide working time and tasks
themselves. Employers will only step in if the employees fail to reach a mutual
agreement.

Regarding termination of the employment relationship after notice, instead of the 2
months’ notice for employers and employees, there will be a differentiated notice period
ranging between 1 and 3 months, following these modalities: if the employment
relationship lasted for less than a year, there will be a 1-month notice period; if the
employee has worked for the employer for at least a year, the notice period is two
months. The 3-month notice period only applies if the employer terminates the
relationship for economic or health reasons, and only if the employee has been in the
company for at least 5 years. Besides, when employers terminate the employment
relationship because of economic or health reasons, employees’ entitlement to benefits is
removed if they stay at work during the notice period. There is also the possibility of
combining part of the notice period and part of the severance benefit.
In January 2010, important changes were also brought to the collective bargaining system more
in particular by introducing a new mechanism for the extension of multi-employer collective
agreements. These changes came about following consultation with ILO experts and provide
amongst others that:

the scope of multi-employer collective agreements should be specified by the respective
code under the General Industrial Classification of Economic Activities (NACE);

the collective agreement is applied to those employers affiliated to the employer
association which signed the agreement, and if their activities fall within the NACE
specification;
21

multi-employer collective agreements can also be applied to an employer, even if not a
member of the contracting employer association, if the contracting parties agree;

upon the request of both or one of the contracting parties, the Ministry of Labour, Social
Affairs and Family) can extend the collective agreement to all or some employers in the
sector/s covered by the agreement;

the law also specifies cases when the extension of multi-employer agreement cannot be
applied to an employer, for instance if: the employer is covered by another multiemployer agreement; or he/she employs less than 20 employees or he/she is bankrupt

and the extension of such a multi-employer agreement to the whole sector or branch
could be done without the consent of the employer but if recommended by a special
advisory committee. Apparently government was ready in October 2010 to accept
changing the latter but it is unclear what the actual state of play is now on this.
Slovenia
A new law on temporary work regulating different forms of temporary work or so-called “small
work” was passed a first time in the National Assembly in October 2010. Under pressure of
heavy opposition amongst others by the trade unions, the National Council voted to delay the
law but nevertheless in November 2010 the Assembly passed it for a second time. But the harsh
opposition of trade unions and youth organisations led to the fact that a national referendum
was held on 10 April 2011 in which 80% of the voters voted against the new law. The law was
going to regulate several forms of paid temporary or occasional work by special categories of
people like students, pensioners and unemployed people. However these jobs are performed
under a special contractual relationship which is not considered as an employment relationship
and thus not falling under the protection offered by Slovenian employment law. The new law was
going to allow these groups to work to up to 60 hours per month and 720 hours per year (the
latter only applicable to students) albeit with fewer rights in relation to (lower) pay, no
remuneration in case of sick leave, no holiday allowance, no severance pay and no annual
holidays. The new law did foresee also however some restrictions for the use of this kind of work
by companies depending on their size. (e.g. companies between 1-10 workers max. 360 hours,
between 10-30 workers 720 hours, between 30-50 workers max 1.080 hours, etc.) It remains
now to be seen how government intends to regulate this in future.
Spain
22
On September 15th 2011, the Parliament validated a new chapter of the Labour market reform.
The decree, already passed by the Council of Ministers in August 2011, contains a series of
measures amongst others to encourage youth employment and suspends the provision of the
Statute of Workers which restricts appeal to consecutive temporary contracts.
Firstly indeed, the decree creates a new training and dual education contract for unskilled young
people aged 25-30, with the possibility of increasing this limit to 34 later, depending on the
duration of training undertaken. The aim of this new contract is to help people get back to the
employment market while alternately giving them access to training. It will last for a minimum
of one year and a maximum of two years, and may be extended another 12 months depending on
the type of training. Working time as determined in the contract represents 75% of habitual
working time in the company. The remaining 25% will be dedicated to training activities in a
specialized center. Employers may be completely exempt from contributions (only 75% for
businesses with 250+ employees).
Secondly, the decree provides for a suspension of the limit to successive temporary contracts.
Until 2014, that aimed to combat the sequence of temporary contracts by turning the
employment relationship of all precarious workers (fixed-term, temporary…) who had been
working on the same job for 24 months (over a 30-month period) via two or more contracts into
a permanent contract is suspended.
To recall is that an earlier reform package only dates from September 2010 –via Law 35/2010
which amongst others foresaw :

to make fixed-term contracts less attractive by setting a maximum length of period of
three years (not existing before) but with possibility to go beyond by industry collective
agreement for an additional 12 months and by increasing the minimum severance
payment that employers must give employees at the end of their fixed-term contracts
(other than apprentices, trainees and substitutes) from minimum 8 days’ salary per year
worked in 2010 up till 12 days by 2015.

on the other hand the extended use of the so-called “development contracts” being a new
type of employment contract although with fewer rights for the workers engaged under it;

to introduce a new definition of reasons for dismissal whereby it provides, both for
collective and individual procedures, that the employer can have a proper motive for
redundancy exists where the employer minimally shows the reasonableness of the
connection between an organizational, productive or technological change and the
23
enhancement of the company’s condition. This notion of reasonableness did not exist
before. Furthermore this new law introduces a 15 days notice (instead of 30 days) in case
of individual dismissals.
As for changes to the industrial relations system, Council of Ministers approved, on June 10th
2010, a royal decree reforming the framework of collective bargaining and which was published
the 11th of June in the official gazette and entered into force on 12 June. The text introduces
mediation to solve conflicts, facilitates internal flexibility for businesses but main change is that
it gives precedence to company collective agreements over provincial collective agreements.
Company agreements will indeed take precedents over agreements signed at provincial level and
may provide for less advantageous terms for questions such as pay, working time organization,
professional categories, recruitment systems and conciliation measures. This prevalence works
unless a national, sectoral or regional agreement states otherwise. Nevertheless, this is a
substantial change in the hierarchy of the collective bargaining system, as currently provincial
agreements cover about 70% of businesses.
The text still needs to be approved by Parliament to become an Act.
United Kingdom
In March 2011, the UK Government launched in the framework of its “Plan for Growth” several
changes clearly aimed to cut the costs and red tape of employment law. Firstly, the measures
provides for the cancellation of foreseen changes on for example training leave (i.e. as from April
2011 it was foreseen to extent the right to ask for time to study or train on or off the job also to
workers in companies with 250 or less staff) and the extension of the right to request flexible
working (i.e. whereas this right was only foreseen in respect for of children under 17 (or 18 for
children with disabilities) this was foreseen to be extended to all parents of children under 18).
Furthermore, plans to allow workers who believe to be discriminated because of two “protected
characteristics” (e.g. sex, disability, age, race, etc.)
to bring a combined claim as well as
obligations for businesses to take reasonable steps to prevent harassment of their staff by third
parties were also cancelled. Another part of the plan is to exempt business with fewer than 10
employees and certain business start-ups from a large part of all (new) domestic legislation for a
period of three years. And thirdly, the government publicly announced that it would launch a
24
drive to revise burdensome EU directives like the revision of the pregnant workers Directive
(92/85/EEC) and the Directive on information and consultation (2002/14/EC).
On a positive note, it should be highlighted that in October 2011 the Agency Workers Regulations
2010 came into force thereby implementing the EU Directive 2008/14/EC.
More recently, however, government has confirmed the doubling of the qualification period for
unfair dismissal tribunal claims from one year to two as from 1 April 2012. The reform
furthermore also provides for a fee for lodging a tribunal case, in a bid to prevent so-called
'vexatious' claims.
25
Annex 1: LIGA Newsletter September 2011
(see separate file)
26
Annex 2:
ETUC preliminary analysis regarding the potential problems with the Revised
European Social Charter Council of Europe and the proposed amendments to the
Hungarian Labour Code
27
Information in respect of the (draft) Hungarian Labour Code and the (Revised) European Social
Charter
(26/08/2011)
Overview
I.
INTRODUCTION ............................................................................................. 30
II. HUNGARY AND THE EUROPEAN SOCIAL CHARTER .................................... 30
A.
GENERAL INFORMATION ...................................................................................................... 30
1.
Ratifications ................................................................................................................... 30
2.
Table of accepted provisions ........................................................................................... 31
3.
The Charter in domestic law ........................................................................................... 31
B.
REPORTS ............................................................................................................................... 31
C.
THE SITUATION OF HUNGARY WITH RESPECT TO THE APPLICATION OF THE CHARTER ............. 35
III. POSSIBLE PROBLEMS IN RELATION TO THE CHARTER .............................. 37
28
A.
B.
GENERAL PROBLEMS .............................................................................................................38
1.
In respect of regression (Article G §1 ..............................................................................38
2.
In respect of trade union rights in general and promotion of collective agreements...38
PROBLEMS IN RESPECT OF INDIVIDUAL POINTS ......................................................................38
ANNEX 1 ...............................................................................................................40
29
Introduction
Instead of going into each proposed amendment to the Labour Code (LC) described in the
document (“Some provisions form the new draft Labour Code”, hereinafter: the document) and
mirroring it to the charter provisions and its case law, the main objective of the following paper
is to recall the situation regarding Hungary vis-à-vis the Revised European Social Charter
(hereinafter: the Charter) and highlighting the standing violations they have including the very
recent one on non-reporting (see below 0.).
This approach has been taken for two main reasons:
1) A lot of the proposed amendments fall under Charter provisions which Hungary did not accept
when ratifying the Charter, e.g.
-
remuneration aspects - Article 4,
-
termination of employment - Article 24,
-
workers' representation protection - Article 28,
-
collective redundancy - Article 29 etc. (see table below, 0).
2) If the situation falls under a charter provision it is not easy -at least for now- to find a
potential violation. Nevertheless, a first indication in respect of possible problems in relation to
the accepted Charter’s provisions is added (see below 0.).
Hungary and the European Social Charter1
General information
Ratifications
Hungary ratified the European Social Charter on 08/07/1999 and the Additional Protocol to the
Charter on 01/06/2005.
Source
of
information:
1)
Factsheet
on
Hungary
available
on
Social
Charter
website
(http://www.coe.int/t/dghl/monitoring/socialcharter/CountryFactsheets/Hungary_en.pdf
),
2)
Governmental Committee of the European Social Charter, Working document prepared by the Secretariat –
European Social Charter Conclusions 2010, T-SG(2010) 5 prov., Strasbourg, 18 Mars 2011 and 3) Governmental
Committee of the European Social Charter, 123rd meeting ( Strasbourg, 2-5 May 2011) - Draft report prepared by the
Secretariat, ET-SG(2011 )7 prov., Strasbourg 19 May 2011
1
30
It ratified the Amending Protocol to the Charter on 04/02/2004, but has not yet ratified the
Additional Protocol providing for a system of collective complaints.
Hungary ratified the Revised European Social Charter on 20/04/2009 accepting 60 of the
Revised Charter’s 98 paragraphs.
Table of accepted provisions
1.1
1.2
1.3
1.4
2.1
2.2
2.3
2.4
2.5
2.6
2.7
3.1
3.2
3.3
3.4
4.1
4.2
4.3
4.4
4.5
5
6.1
6.2
6.3
6.4
7.1
7.2
7.3
7.4
7.5
7.6
7.7
7.8
7.9
7.10
8.1
8.2
8.3
8.4
8.5
9
10.1
10.2
10.3
10.4
10.5
11.1
11.2
11.3
12.1
12.2
12.3
12.4
13.1
13.2
13.3
13.4
14.1
14.2
15.1
15.2
15.3
16
17.1
17.2
18.1
18.2
18.3
18.4
19.1
19.2
19.3
19.4
19.5
19.6
19.7
19.8
19.9
19.10
19.11
19.12
20
21
22
23
24
25
26.1
26.2
27.1
27.2
27.3
28
29
30
31.1
31.2
31.3
Yellow = accepted provisions
The Charter in domestic law
Article 7§1 of the Constitution: “The legal system of the Republic of Hungary shall ensure
harmony between the assumed international law obligations and domestic law’.”
Reports2
Between 2002 and 2010, Hungary submitted 6 reports on the application of the Social Charter.
Following a decision taken by the Committee of Ministers in 2006, the provisions of both the 1961 Charter and the
Revised Charter have been divided into four thematic groups. States present a report on the provisions relating to one
of the four thematic groups on an annual basis. Consequently each provision of the Charter is reported on once every
four years.
2
31
th
Hungary failed however to submit its 7 report, due by 31/10/2009, on the provisions relating to
Thematic group 3 “Labour rights”, i.e.
-
the right to just conditions of work (Article 2 – and including aspects of working time!)
-
the right to a fair remuneration (Article 4)
-
the right to organise (Article 5)
-
the right to bargain collectively (Article 6)
-
the right to information and consultation (Article 2 of the 1988 Additional Protocol)
-
the right to take part in the determination and improvement of the working conditions
and working environment (Article 3 of the 1988 Additional Protocol).
Hungary has accepted all the articles from this group, with the exception of Article 4.
Thus no report on article 5 and 6 relating to collective bargaining and collective action was
submitted. Consequently the Committee was unable to reach any conclusions for Hungary in
2010.
The next Hungarian report concerned the provisions accepted by Hungary with regard to
Thematic group 4 “Children, families, migrants” i.e.
-
the right of children and young persons to protection (Article 7),
-
the right of employed women to protection (Article 8),
-
the right of the family to social, legal and economic protection (Article 16),
-
the right of mothers and children to social and economic protection (Article 17).
The deadline for submitting this report was 31 October 2010. Again, Hungary failed to submit a
report on time.
The working document in relation to the 123rd meeting of the Governmental Committee to the
Social Charter (May 2011) and where the Conclusions 2010 were (partially) discussed, this late
or non-submission of reports was referred to as follows.
“In its General Introduction to the Conclusions 2010 (Revised Charter) and Conclusions
XIX-3 (1961 Charter), the European Committee of Social Rights made the following
statement:
32
The Committee emphasises that the Charter requires the submission of a complete report.
This means that formulae such as “no new developments”, “the situation has not changed”
(since the previous cycle) or similar ones may in certain situations be valid in relation to
the legal framework, but they are not sufficient when the Form for Reports asks for
information on practical measures and developments (e.g. updated statistics on the
number of sanctions, accidents, etc.) in order to demonstrate the application of the
Charter in practice. In such cases, lack of the requisite information will lead the
Committee to a conclusion of non-conformity.
Furthermore, in case of non-submission of a report, the Committee considers that there is
a violation of the formal obligation to report and that there is, in effect, nothing to
demonstrate that the situation as regards the substantive provisions concerned is in
conformity with the Revised Charter.” (underlining added)3
Consequently, it was proposed to adopt a warning against Hungary.
The discussions in the Governmental Committee at that 123rd meeting in relation to this nonsubmission of reports by Hungary are reflected in the provisional report of the meeting as
follows:
“As regards Hungary
26. The Chair then turned to the situation of Hungary, she highlighted that there was no
representative from Hungary present and no one had attended the last Governmental
Committee meeting either. She requested the Secretariat to write a letter to the
Hungarian Permanent Representation expressing the Governmental Committee’s
concern at their failure to submit a report and their non-attendance at Governmental
Committee meetings.
27. The letter appears in Appendix IV.
28. The Secretariat stated that the situation of Hungary was different to that of Finland,
Hungary has not at all submitted a report in 2009 and not yet submitted a report in
2010.
3
Governmental Committee of the European Social Charter, Working document prepared by the Secretariat – European Social
Charter Conclusions 2010, T-SG(2010) 5 prov, Strasbourg, 18 Mars 2011, page 10
33
29. The Chair acting as the representative of Portugal proposed a vote on a warning to
Hungary. The representative of the Czech Republic agreed.
30. The Governmental Committee then voted on a warning; 19 votes in favour, 6
against and 8 abstentions. The warning was adopted.”4
Finally, it should be noted that Hungary is obliged to submit a report by 31 October 2011
regarding the rights in Thematic Group 1 “Employment, training and equal opportunities”, i.e.
-
the right to work (Article 1)
-
the right to vocational guidance (Article 9)
-
the right to vocational training (Article 10)
-
the right of persons with disabilities to independence, social integration and participation
in the life of the community (Article 15)
-
the right to engage in a gainful occupation in the territory of other Parties (Article 18)
-
the right to equal opportunities and equal treatment in matters of employment and
occupation without discrimination on the grounds of sex (Article 20)
-
the right to protection in cases of termination of employment (Article 24)
-
the right of workers to the protection of their claims in the event of the insolvency of their
employer (Article 25)
Hungary has ratified them all with the exception of articles 18, 24 and 25. Looking at some of the
proposed amendments to the Labour Code as described in the note send by our LIGA colleagues
(e.g. protection against termination of employment), it seems of utmost importance that the
European Committee of Social Rights and the ETUC is provided with all relevant information on
these proposed changes.
Governmental Committee of the European Social Charter, 123rd meeting ( Strasbourg, 2-5 May 2011) Draft report
prepared by the Secretariat, ETSG(2011)7 prov., Strasbourg 19 May 2011; the letter which is referred to in §27 can be
found in annex 1 to this document.
4
34
The situation of Hungary with respect to the application of the Charter
Hungary is currently (August 2011) not in compliance with the Charter for the following cases:
Thematic Group 1 “Employment, training and equal opportunities”
No cases of non-compliance retained
Thematic Group 2 “Health, social security and social protection”
► Article 3§1 – Right to safe and healthy working conditions - Safety and health regulations
It has not been established that the self-employed and domestic workers are protected by
occupational health and safety regulations.
(Conclusions XIX-2 http://www.coe.int/t/dghl/monitoring/socialcharter/Conclusions/State/HungaryXIX2_en.pdf
)
►Article 11§1- Right to protection of health - Removal of the causes of ill-health
It has not been shown that sufficient measures have been taken to reduce the mortality rate.
(Conclusions XIX-2
http://www.coe.int/t/dghl/monitoring/socialcharter/Conclusions/State/HungaryXIX2_en.pdf
)
►Article 12§1 - Right to social security - Existence of a social security system
The minimum monthly old age, survivor's, orphan's and disability pensions as well as the
minimum monthly job-seeker aid and entrepreneurial benefit are manifestly inadequate.
35
(Conclusions XIX-2
http://www.coe.int/t/dghl/monitoring/socialcharter/Conclusions/State/HungaryXIX2_en.pdf
)
Thematic Group 3 “Labour rights”
In view of Hungary’s failure to submit a report on the application of the Charter concerning the
provisions of Thematic Group 3, the European Committee of Social Rights was unable to reach
any conclusions for Hungary for 2010.
(Conclusions XIX-3 http://www.coe.int/t/dghl/monitoring/socialcharter/Conclusions/State/HungaryXIX3_en.pdf
)
► Article 2§1 – Right to just conditions of work - Reasonable working time A 72 hours working
week is allowed by law for employees on stand-by duty.
(Conclusions XVIII-2 http://www.coe.int/t/dghl/monitoring/socialcharter/Conclusions/State/HungaryXVIII2_en.pd
f)
► Article 2§3 – Right to just conditions of work - Annual holiday with pay
The employer is allowed to postpone three fourth of the basic annual leave, including half of the
minimum leave as required under the Charter, to a later period in case of “economic interests of
particular importance”, a concept which is unclear in respect of Article 2§3 of the Charter.
(Conclusions XVIII-2 http://www.coe.int/t/dghl/monitoring/socialcharter/Conclusions/State/HungaryXVIII2_en.pd
f)
36
► Article 6§4 – Right to bargain collectively - Collective action - In the civil service, a strike can
only be called by a trade union that is party to the agreement concluded between the
Government and the trade unions concerned. Moreover, civil service trade unions may only call
strikes with the approval of a majority of the staff concerned. The criteria used to define civil
servant officials who are denied the right to strike go also beyond the scope of Article 31 of the
Charter (any restriction shall be prescribed by law, pursue a legitimate purpose and be necessary
in a democratic society for the protection of the rights and freedoms of others or for the
protection of public interest, national security, public health or morals).
(Conclusions XVIII-1 http://www.coe.int/t/dghl/monitoring/socialcharter/Conclusions/State/HungaryXVIII1_en.pd
f)
Thematic Group 4 “Children, families, migrants”
► Article 17 – Right of mothers and children to social and economic protection
– corporal punishment in the home is not prohibited;
– the maximum length of pre-trial detention is excessive.
(Conclusions XVII-2 http://www.coe.int/t/dghl/monitoring/socialcharter/Conclusions/State/HungaryXVII2_en.pdf
)
Possible problems in relation to the Charter
The problems referred to are not an evaluation of the situation. Such an exercise would require
an examination based on i.a.
-
translated texts
-
knowledge of the justifications
-
sufficient time etc.
Therefore, it appears only possible to raise certain problems which would have to be examined in
more detail at a later stage.
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General problems
In respect of regression (Article G §1
There is a general problem of the regression in respect of acquired level of workers’ protection.
This may give a rise to scrutiny under Article G§1 of the Charter which would appear to require
specific justification in cases of regression.
From the outset it should be, nevertheless, noted that the European Committee of Social Rights
(ECSR) has until now not examined regression problems under this provision.
In respect of trade union rights in general and promotion of collective
agreements
In respect of (the restriction of) trade union rights which is highlighted in point III. under
different headings an examination concerning the compliance with Article 5 would be required.
In a number of points the legislature would be given the power of rule against collective
agreements, e.g.
-
point I. 6. (“the Proposal weakens the CAs”);
-
point II. 4. (“even if the CA of the parties agree otherwise”).
Moreover, point III.4. raises the problem more generally. In particular the fact that works
councils are also given competence to negotiate would require an intensive examination under
Article 6§2 as this provision seems to leave this prerogative to TU (in particular when this was
practice before).
Problems in respect of individual points
The potential problems with the Charter in respect of individual points mentioned in the
document which could be raised as examples but which would still require a more detailed
scrutiny of the proposed changes in relation to the Charter would appear to be
-
Point I.3. (Protection against dismissal is abolished) appears to allow in future dismissals
also during the period of maternity leave which would raise problems in respect of the
obligation “to consider it as unlawful for an employer to give a woman notice of dismissal
38
during the period from the time she notifies her employer that she is pregnant until the
end of her maternity leave” (Article 8§2);
-
Point I. 6 (although somewhat unclear) could raise problems in respect of the obligation
to reduce as far as possible working hours (Article 2§1);
-
Point I. 7 (changes in working times patterns) could raise problems as regards the
requirement of a written information about essential aspects of the employment
relationship (Article 2§7);
-
point I. 9 (the scheduling of 1/4 of the annual leave by employer) as this has already in a
certain way led to non-conformity by the ECSR (Article 2§3);
-
Point I. 10 (reduced employers’ liability in case of accidents) could create problems in
respect of the obligation to “maintain the social security systems at a satisfactory level”
(Article 12§2) and to “raise progressively the system of social security to a higher level”
(Article 12§3);
-
Point II. 4. (break-time shall not be part of the working time) might appear to be a
challenge to the same obligation as under point I.6. (see above), in particular the
cumulative effect of (the increasing possibilities for) more working hours should be
examined;
-
Point III.2. (Consultation rights) could raise the question of compatibility with the rights
to consultation (Articles 21 and 22);
-
PointIII.3. (decreasing trade union tights) would possibly require an examination under
the provision for the right to organise (Article 5).
SC-26-8-2011
KL-26-8-2011
39
ANNEX 1
APPENDIX IV
LETTER SENT TO THE PERMANENT REPRESENTATIVE OF HUNGARY
Non submission of the national reports for 2010 and 2011
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