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Enforcement options in case of abuse of unilateral power in the field of working time
101-125Views:124Apart from the aforementioned provisions of Act CXVI of 2018 amending the Labour Code's rules on working time, nowhere in our current legislation is there a meaningful request for employee consent on the subject of working time, which - even if an employer's ultima ratio is maintained - would be extremely beneficial, in our view, not only from a fundamental rights and social, but also from an economic-efficiency perspective. The fulfilment of the aforementioned obligation to harmonise EU law would also undoubtedly bring benefits in this area. However, it should be noted that European Union legislation does not provide a satisfactory solution to these problems either, as it does not itself contain sufficient legislative provisions to involve the employee side in decisions on working time/working patterns. In our view, the only solution would be a domestic legislative reform that would provide a solution to all the problems identified in our study in line with EU law, but with its own solutions.
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Unilateral determination of working time in the effective regulations of labor law
63-80Views:269In most cases, law does not differentiate between various people in equal-level positions of a contract; during sales, the State has the same rights and obligations as the contracting private person. Labor law is a specific field of law where one of the parties that are theoretically on equal level – i.e. the employee – is actually in a somewhat subordinated and obviously more exposed position. In the light of the foregoing, it is especially notable that there are some fields of labor right where the third way applies; parties are not equally positioned in terms of power; however, it is not the employee who gets legal assistance for the equality of opportunities, but the law itself supports their disadvantaged position. Such situation is called the legal situation of unilateral power, and we aim to study to what extent it is present in Hungarian labor law and how advantageous or disadvantageous this it to the parties. The field of law where one is likely to detect the traces of unilateral power is the legal regulation related to working time, which, therefore, is the subject of this study, and the definition of working time will hereinafter be looked into from the aspect of the employer’s unilateral right to establish employment. Unilateral power is basically not typical to be enforced in labor law, and therefore, working time-related regulations – that belong to the employer’s own discretion – form an exception in such respect. At the same time, the option of flexible work order provides an exception from the superiority of unilateral power, and therefore it is actually an exception to the exception. Such complex system, however, provides the option to make sure whether the enforcement of unilateral power is constructive in labor law, or it would be more reasonable to apply a more balanced system such as the principle of the employer’s ultima ratio as suggested by Guy Davidov. While noting that according to those described above, flexible work order poses some potential risks, too, in our opinion, it would be more efficient and social to set up a consensus-based system, which would also allow us to satisfy our obligation of European Union legal harmonization. Hungarian legislation, and labor law legislation in particular has numerous tasks to do in order to promote the solution of socio-economic problems, as well as to fulfill our obligations related to legal harmonization; in our opinion, the conclusions above confirm that making working time regulations more liberal is one of the major tasks of legislation.