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Theoretical issues of equal treatment in relation to the legal classification of labour law
57-79Views:157There are many national and international academic debates on the classification of labour law. On the one hand, labour law can be categorised as private law when we consider the establishment of employment relationships. The legal basis for an employment relationship is exclusively the employment contract, thus labour law belongs to classical private law. On the other hand, the content of the employment relationship can be determined not only by the employment contract, but also by a number of other rules. These norms typically have public law content and, as so-called public law elements of labour law, seek to limit the contractual freedom of the parties. The existence of public law elements is typically justified by the legislator on the grounds that there is subordination between the parties in the employment relationship, so that the contractual balance of rights, which is characteristic of private law, is shifted in favour of the employer. The presence of elements of public law, and in particular the requirement of equal treatment, is intended to redress this imbalance in employment law by limiting the contractual freedom between the parties. In the present article, we examine in particular whether the presence of public law elements gives labour law a specificity of its own. In addition, focusing on the principle of equal treatment, we examine how the prohibition of discrimination in labour law and classical private law can be interpreted and whether this general behavioural requirement is capable of redressing the balance that has been shifted between the parties. Finally, we ask the rhetorical question: if the requirement of equal treatment is capable of redressing the balance, why is there a need for additional public law elements in labour law?
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Non-competition agreement
20-28Views:215The “agreement on non-competition” is essentially the extension of the protection of the basic economic interest of the employer. While during the employment relationship several labor law provisions protect the interest of both parties, the “agreement on non-competition” is designed to protect the employer’s interests after the termination of the relationship. This means – in return for financial compensation – the former employee needs to refrain from any kind of business competition against his/her former employer. This necessarily involves financial compensation and may have several restrictions, such business or geographical area or time.
The previous Labor Code did not specify for detailed regulation of the issue and the law remained rather vague. It merely referred to the fact that parties – based on their own free will – may enter into such agreement. However the new Labor Code contains explicit regulations under title XVIII of the Act as “Particular Agreements Related to Employment”.
The “agreement on non-competition” belongs to the field of employment law. Unlike the previous Labor Code that categorized this possible agreement as of purely civil law in nature, the new Labor Code declares it to belong under the scope of the Labor Code. The previous regulation even ordered the provisions of the Civil Code to be applied to such agreements however the new legislation brought a conceptual change.
The currently effective regulation provides for a 2-year limitation on such conduct on the employee’s part that would create competition with the employer. The exact amount of the consideration payable for this obligation remains to be decided by the parties however the Labor Code suggests that it shall be based on how difficult the applied restrictions make it for the employee to find another job with his qualifications and experience. As a basic limit the law provides that the amount shall not be less than one-third of the base wage payable for the same period of time.
The “agreement on non-competition” is not to be confused with similar legal institutions. The paper points out two close similarities in the legal system. One being the employee’s obligation of confidentiality; this prevails after termination of the employment relationship as well without any time or similar restrictions and even without any financial compensation. The other one is the so called “non-compete” agreement from the field of competition law. This is applicable after takeovers where the seller shall refrain from engaging into business in the same area as the buyer.
In the field of labor law the time period for the “agreement on non-competition” is up to the agreement of the parties however the new law invokes an upper limit of two years that is following the termination of the employment relationship. This is a decrease from the previous regulation that provided for a period of three years. The agreement can be modified by the consent of both parties just like the employment contract or civil law agreements.
In case of violation of the agreement three cases are to be analyzed. The first is the case of the employee breaching the provisions of the contract. In this case the employee is liable for damages towards his/her former employer. The provisions of the new Civil Code and those of the Labor Code are to be applied to the damages. In the second case the employer may request an injunction to prohibit the employee from any conduct breaching the agreement while the third case involves the breach of the agreement on the employee’s part for which the rules of the Civil Code and the Labor Code are to be applied as well.
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A munkaviszony megszűnésének és megszüntetésének új szabályai a korábbi szabályozás tükrében
24-34Views:122From the 1st of July 2012, Act XXII of 1992 on the Labour Code, which was effective from the 1st of July 1992, had given place Act I of 2012 on the Labour Code (New Code). The New Code has brought a lot of changes concerning the cessation and termination of the employment. The univoque aim of the legislator, near reducing the number of the labour suits, was resolving the inconsistency of the practice, corresponding to the changing social and economic relations, furthermore harmonising the Hungarian law to the law of the European Union. The rules concerning the termination of the employment have not substantially changed. The New Code broadens the list of cases regulated previously. Concerning the termination of the employment, the New Code determines the ordinary dismissal as dismissal, whereas the extraordinary dismissals as dismissal with prompt effect.
At the same time, it is a new rule, that the parties could terminate the definite term employment with dismissal, if the conditions determined by the New Code emerge. The New Code has brought substantial changes concerning the rules of the dismissal protection. It constricts the number of cases when the dismissal protection could be applicable and respecting the application of the dismissal protection, it considers authoritative the moment of the notification of the dismissal. For example an expectant mother could refer to the dismissal protection, if she had notified the employer about the pregnancy before the notification of dismissal.
According to subsection 3 of section 65, there are cases, when the dismissal should not be communicated, whereas according to subsection 2 of section 68, the dismissal could be communicated, but the termination period would start earliest after the last day determined by the New Code.
The New Code, contrary to the old one, determines 6 months as the longest term of the dismissal period. The rules of the acquittal and the severance pay have not changed substantially. Regarding the dismissal with prompt effect, the legislator makes a distinction between the termination with motivation and the termination without motivation. It is a substantial modification regarding the unlawful termination of the employment, that according to the rules of the New Code, the employee could claim for damages as arrears of salary, which could not exceeds the 12 months amount of the absence fee. The restoration of the employment could be executed only in the few cases determined by section 83 and only if the employee requests for it. -
The change of legal rules concerning employment policy instruments
Views:40The aim of the present essay is to give an overview of the means of the employment policy through the analysis and construction of the relevant statutory intruments and legal rules.
During the treatment of the means of the employment policy this essay tooks the classification accepted by the scientific literature as a basis therefore it deals with these instruments divided into two big groups.
Among the active types of the means of the employment policy the direct and also the indirect kinds of benefits of the jobless and unemployed are treated here.
Among the passive types of means those instruments are presented which are to succeed the unemployment benefit and the unemployment allowance such as jobsearch benefit and jobsearch allowance.
The definition of ‘employment policy’ is widely construed that is why this definition comprises the classical instruments of Labour Law and in a separate subsection the subsidy of the atypical legal relations of employment are also presented.
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Possibilities of workplace mediation in the European Union
1-13.Views:374The world of labor market and industrial relations is a field where conflicts and disputes are inevitable characteristics of the operation, regardless of the form of employment. Also, labor disputes appear both from an individual aspect, where the disputants are the employer and the employee, and in a collective respect, where the disputes take place between the employer(s) and the collective of the workers, typically represented by an employee organization (union) or a works council.
When a conflict or a dispute cannot be resolved through negotiation, the law offers dispute resolution mechanisms for the participants. Therefore, several legal mechanisms have been evolved in order to resolve disputes, starting from the classical form of litigation, where a court determines the end of the dispute by its judgement, and other alternative forms of dispute resolution, such as arbitration, mediation and conciliation, where the parties can reach a decision or a settlement outside of the judicial system of the state.
EU Member States have introduced various legislative rules for labor dispute resolution covering all manner of individual and collective disputes. ADR schemes are also supported by the ILO, as the ILO Recommendation No. 92 (1951) suggests that voluntary conciliation should be made available to assist in the prevention and settlement of industrial disputes between employers and workers. Within the aegis of the European Union, several instruments have emerged with the attempt to elaborate the basic principles for the operation of ADR schemes in the context of cases between businesses and consumers. The Directive 2013/11/EU on alternative dispute resolution for consumer disputes (the “ADR Directive”) and Regulation (EU) No 524/2013 on online dispute resolution for consumer disputes (the “ODR Regulation”) ensured that consumers could turn to quality alternative dispute resolution entities for all kinds of contractual disputes with traders, and established an EU-wide online platform for consumer disputes that arise from online transactions with traders.
Workplace mediation is widely and successfully utilized in the USA for solely employment purposes both in the private and the public sector. Also, in the United States is a “employment at will” doctrine prevails, that basically means – unless stipulated to the contrary by the parties – the employment relationship can be terminated with immediate effect without any justification (just cause), thus workers do not have access to legal remedies as in the EU where the statutory laws provide a broad protection against arbitrary or unjust termination. Mediation, however, provide an effective solution for employees and workers, even if situated outside the protective scope of labor law.
While the role of customer/consumer ADR and mediation is increasing throughout the whole European Union, workplace and employment mediation still constitutes a “grey zone”. In many of the legal instruments of the EU and also in several products of the national legislations, consumers and workers are treated with the same legal awareness, thus protective laws compensate their weaker position in their legal relationships, but as far as the utilization and access of dispute resolution schemes are concerned, a significant but not always reasonable differentiation can be detected. Also, while mediation is an available tool for individual employment matters, still has not been utilized considerably, and remained an instrument only to resolve mostly collective conflicts. Therefore, the aim of this paper to present various styles of mediations from a comparative perspective, to express their biggest advantages and to highlight the areas where mediation could be more suitable to use in the context of the individual disputes of the workplace.
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Healthcare professional’s liability for damages
45-53Views:177The doctor-patient relationship requires set rules for liability considering the nature of professional norms on medicine and the protection of human life and health. According to these rules, the healthcare provideris vicariously liable for damages suffered as a consequence of healthcare servicesprovided to the patient. In such cases– on the grounds of labor law rules – the healthcare providermay transfer liability to its employee. Considering recent amendments of labor law regulations, it is essential to summarize and analyze relevant labor law norms relatedto medical liability.
The employee’s liability for damages is based on the employment relationship between the healthcare provider and the employee. Despite of the healthcare provider’s liability for damages, the employee’s liability is always personal.
According to the new labor code the employee’s liability for damages is only ascertainable if the tortfeasor did not act like a reasonable person would have actedunder given circumstances. This means that the tortfeasor’sintention or negligence is irrelevant in the course of ascertaining liability. The purpose of our study is to provide a review of the strict measure of due care in health care services, and to summarize rules about the healthcare professional’s liability for damages.
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Comparison between the requirements of the Court of Justice of the European Union and the Hungarian judicial practice in terms of equal treatment and/or the breach of thereof in the field of labor law
Views:236Employment and occupation are crucial to ensuring equal opportunities for all and in large measure contribute to the full participation of citizens in economic, social and culture life. However, many cases of discrimination have been identified in the field of employment and the labour market.
In this study I try to examine how the equal treatment works in the EU Law and Hungarian national law, and I try to present the case-law of the European Court of Justice and the Hungarian Courts in this area. The first part of the study deals with the definition of key concepts (direct discrimination, indirect discrimination, harassment), and include its legal background – with respect to the directives of the European Parliament and the Council, and the Hungarian legislation. The second part tries to describe the legal concept of indirect discrimination, mentioned as justification (statutory derogation, objective justification). And finally I try to present the special burden of proof, which is used in discrimination cases.
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A büntetőjogi mediáció gyakorlati aspektusai
1-12Views:98Mediation is a conflict-management method designed to achieve restorative justice (offenders should assume responsibility and pay the penalty for their deeds, with the greatest emphasis on reparation of the victim, and the affronted community should be conciliated). This method may be applied to solving a variety of disputes or conflicts (e.g. disputes involving neighbours, families, couples, and companies).
The mediation technique has already been used in the fields of civil law, family law and employment law. From 2007 onwards, it can also be applied in criminal procedures. According to Article 221/A of the Code on Criminal Procedure (Act XIX of 1998) the mediation process may be used in criminal procedures dealing with certain offences against the person, property or traffic offences if the crime is punishable with no more than five years imprisonment, and the offender has made a confession during the criminal investigation. -
Simplification of civil procedures in the European Union, the regulation of small claims procedures in particular
Views:33Introduced to reduce obstacles to the free movement of goods and persons, judicial cooperation in civil matters has become part and parcel of the new European area of justice. Creation of this area is meant to simplify the existing legal environment and to reinforce citizens' feeling of being part of a common entity. The Conclusions of the Tampere European Council state in this respect that “in a genuine European Area of Justice individuals and businesses should not be prevented or discouraged from exercising their rights by the incompatibility or complexity of legal or administrative systems in the Member States.”
At present, the judicial cooperation in civil procedures is based on the Hague Programme, adopted by the 2004 Europen Council in Bruxelles.The Hague Programme requires that the Commission should translate the Hague objectives into concrete measures. To this end, the Annex to the Communication from the Commission to the Council and the. European Parliament on the Hague Programme, consists of an Action Plan listing the main actions and measures to be taken over the next five years, including a specific set of deadlines for their presentation to the Council and the European Parliament.
The chapter dealing with this area is named „Strengthening justice”, and it includes amongst others the following tasks:
- Specific Programme on Judicial Cooperation in Civil and Commercial Matters (2007)
- Support by the Union to networks of judicial organisations and institutions (continuous)
- Creating a „European Judicial culture”
- Evaluation of quality of justice (Communication - 2006)
- Creation, from the existing structures, of an effective European training network for judicial authorities for both civil and criminal matters (2007)
The European Union has set itself the objective of maintaining and developing the European Union as an area of freedom, security and justice in which the free movement of persons is ensured. For the gradual establishment of such an area, the Community is to adopt, among others, the measures relating to judicial cooperation in civil matters needed for the proper functioning of the internal market.
The Community has among other measures already adopted Council Regulation (EC) No 1348/2000 of 29 May 2000, on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters; Council Decision 2001/470/EC of 28 May 2001, establishing a European Judicial Network in civil and commercial matters; Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters; Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004, creating a European Enforcement Order for uncontested claims; Council Directive 2002/8/EC, of 27 January 2003, to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes; Council Regulation (EC) 2201/2003, of 27 November 2003, concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) 1347/2000; Regulation (EC) No 805/2004, of the European Parliament and of the Council of 21 April 2004, creating a European Enforcement Order for uncontested claims; Proposal for a regulation of the European Parliament and of the Council creating a European order for payment procedure; Proposal for a regulation of the European Parliament and of the Council establishing a European Small Claims Procedure.
The disproportionate cost of litigation for small claims has led many Member States to provide simplified procedures for claims of small value which are intended to provide access to justice at a lower cost, thus influencing one of the three factors that determine the rationales in dispute resolution. The details of these procedures have been investigated and documented in detail in studies prepared for the Commission. The evidence from these reports suggests that the costs and timescale associated with the domestic simplified measures, and thus their use and utility to claimants, varies widely. A 1995 study for the Commission found evidence of how costs of cross-border claims were significant compared to the size of most potential claims, and that these costs varied substantially between Member States. The total costs of pursuing a cross-border claim with a value of € 2.000 was found to vary, depending on the combination of Member States, from € 980 to € 6.600, with an average quoted figure of € 2.489 for a proceeding at the plaintiff’s residence. The study also showed that due to different and conflicting costing rules part of the costs have to be paid even by successful plaintiffs.
On 20 December 2002, the Commission adopted a Green Paper on a European order for payment procedure and on measures to simplify and speed up small claims litigation. The Green Paper launched a consultation on measures concerning the simplification and the speeding up of small claims litigation.
The European Small Claims Procedure is meant to simplify and speed up litigation concerning small claims, whilst reducing costs, by offering an optional tool in addition to the possibilities existing under the laws of the Member States. This Regulation should also make it simpler to obtain the recognition and enforcement of a judgment given in a European Small Claims Procedure in another Member State, including judgements which were initially of a purely domestic nature. In order to facilitate the introduction of the procedure, the claimant should commence the European Small Claims Procedure by completing a claim form and lodging it at the competent court or tribunal. In order to reduce costs and delays, documents should be served on the parties by registered letter with acknowledgment of receipt, or by any simpler means such as simple letter, fax or email. The procedure should be a written procedure, unless an oral hearing is considered necessary by the court. The parties should not be obliged to be represented by a lawyer. The court should be given the possibility to hold a hearing through an audio, video or email conference. It should also be given the possibility to determine the means of proof and the extent of the taking of evidence according to its discretion and admit the taking of evidence through telephone, written statements of witnesses, and audio, video or email conferences. The court should respect the principle of an adversarial process. In order to speed up the resolution of disputes, the judgment should be rendered within six months following the registration of the claim. In order to speed up the recovery of small claims, the judgment should be immediately enforceable notwithstanding any possible appeal and without the condition of the provision of a security. In order to reduce costs, when the unsuccessful party is a natural person and is not represented by a lawyer or another legal professional, he should not be obliged to reimburse the fees of a lawyer or another legal professional of the other party. In order to facilitate recognition and enforcement, a judgment given in a Member State in a European Small Claims Procedure should be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition. Since the objectives of the action to be taken namely the establishment of a procedure to simplify and speed up litigation concerning small claims, and reduce costs, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality as set out in that Article this Regulation does not go beyond what is necessary to achieve those objectives.
The European Council underlines the need further to enhance work on the creation of a Europe for citizens and the essential role that the setting up of a European Area for Justice will play in thisrespect. A number of measures have already been carried out. Further efforts should be made to facilitate access to justice and judicial cooperation as well as the full employment of mutual recognition. It is of particular importance that borders between countries in Europe no longer constitute an obstacle to the settlement of civil law matters or to the bringing of court proceedings and the enforcement of decisions in civil matters.
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The legal consequences of the unlawful termination of the employment relationship by the employer in the light of Act I of 2012 on the Labor Code
125-144Views:91Highlighting the consequences of the illegal termination of the employment by the employer, the thesis presents its recent short historical background, development direction, current regulation – mainly the Act I of 2012 on the Labor Code (Mt.) 82. § (1), (2) and (4)
paragraphs –, especially the practical application of the judicial experience accumulated over more than ten years. The thesis covers the legal basis of the labor law claims presented against the employer's decisions in question, as well as the summativeness of the issues, calling for help the case decisions of the higher courts, i.e. either the judgment boards or the Kúria, made in similar matters, which can be considered as guidelines in the application of the law. -
Unilateral determination of working time in the effective regulations of labor law
63-80Views:228In 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.
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Does the Ebktv. provide adequate protection on the labor market for child-raising? Equal employment of pregnant women and parents in Hungary
47-60.Views:229In the recent years, there were several government programs in Hungary aiming to boost the number of childbirths, mainly through direct financial support for parents. But undertaking the commitment to raise a child is not just a financial issue for parents, and especially women. The work – life balance is just as important for many, especially for college-educated ones.
My paper aims to examine the legal framework of the equal treatment focused on the abovementioned situation, about how it can prevent the discrimination of pregnant women and parents in the workforce. I briefly look at the legal development of the area in the European Union, and the most relevant issues and procedural questions in the Hungarian Act CXXV of 2003 on equal treatment and the promotion of equal opportunities. For the main part of the paper, I focus on the case law of the Equal Treatment Authority, on how certain conducts (direct or indirect discrimination, harassment, victimization) surface in relation to childbearing and child raising, how did the Authority decide in these cases, and how do these decisions affect the practice of this field. The Kúria is also a substantial actor in this area, as the highest court in the country, its binding uniformity decisions hold significant weight for the law of equal treatment, therefore I examine some of its important decisions.
In the end, I summarize my findings. In today’s labor market, pregnant women and parents face discrimination, this is especially true for pregnant women on probationary period. Employers feel burdened if an employee gets pregnant, and in some cases, they still try to lay off women who do not put their career ahead of family. Overall, I conclude that the legal framework is satisfactory, but several underlying social issues will continue to generate obstacles if the employers’ and society’s view about motherhood and roles in the family will not change.