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Additional Remarks on the Question of Civil Service Law as a Branch of Law
120-133Views:482The study focuses on the relationship between civil service law and labour law. In Hungary, there have been significant changes in the last decade regarding the regulation of civil service law. The types of the civil service legal relationships have increased, the forums and procedural rules for adjudicating civil service law related disputes have changed, and the number of public employees providing public services has rapidly decreased. This is of particular importance because the existence of these branches of the law is determined by legislation as well. The study concludes that the ability of civil service law to become an independent branch of law will be determined not by 'internal' developments but by legislative ambitions.
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The right to take collective action in EU law based on the European Pillar of Social Rights and the recent case law of the CJEU
9-24Views:237This paper is built around the workers’ fundamental right to take collective action and collective bargaining. Although, this right is firmly embedded in the majority of labour law systems in the social policy (meaning labour law, too) of the European Union, it is worth analysing it separately with an independent meaning. We can approach this right from the fundamental rights, the fundamental treaties or from certain directives, so we can find several questions that are difficult to answer properly. These problems are mostly catalysed by the necessary collision between the need for socially motivated legal protection and the fundamental economic freedoms. In my research, I analyse this right – along with some other connected ones – with the help of the recent case law of the Court of Justice of the European Union and the European Pillar of Social Rights because the latter highlights the holistic approach in the current reforms of EU social policy.
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The Nature of the EU Labour Market and Its Regulations
89-104Views:190Labour market regulation to prevent labour migration easily becomes protectionist, thus violating the rights of migrant workers. This paper focuses especially on the role of the labour market regulations relating to migrant workers in the EU. General labour market regulations will be analysed in the first section. When we talk about the labour market, the regulations will be assessed as to whether they are strong or not and to what extent the workers will get their rights protected. EU labour migration is large around the world and can be handled with labour legislation and the labour market. Therefore, EU labour market regulations and policies, especially active labour market policies, are analysed in this paper.
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effects of Labour Law regulation on the employment Relations Based on the Connection between Social Rights and Labour Market
26-40Views:215In the world of employment we can find several aspects that have effect on the labour market. Labour market cannot be independent from the legal regulation of employment; moreover – according to the tendencies – labour market processes basically define the role of labour law. A fundamental difference can be observed between the approach of Anglo-Saxon countries and researchers and the viewpoint of the continental law systems. In this paper the emphasized question is analyzed through these two different approaches according to the following premise: the Anglo-Saxon legal thinking defining the current development of labour law bears significant differences related to the labour law regulation – which means the direct regulation of labour market – and to the legal guarantees behind employment as well. From the viewpoint of the labour market two main questions are examined in this paper: on the one hand, the expected and necessary level and method of public intervention in connection with social rights, and on the other hand the deepness of the intervention of labour law into the social relations driven by the market.
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Digitization at Work: Expanding Horizons with Loopholes
61-80Views:483The focus of the study is on the emergence and spread of digitization in employment. In this context, the study presents the forms of work that use digitization. On the other hand, it describes the labour market effects of digitalization. The study looks in detail at how COVID-19 has changed the role of teleworking and the home office in employment. This is followed by the presentation of the Hungarian labour law regulation, which deals exclusively with telework. The study makes two proposals to address the codification gap. On the one hand, in connection with application-based work, the introduction of the status of a person with a similar legal status to an employee, which was regulated in the draft of the Labour Code. On the other hand, to impose employer obligations (retraining, job offers) in connection with the spread of automation and robotics in order to prevent dismissal.
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Is This the Way Labour Law Should Protect the Employee? Review of György Kiss’s New Book
203-212Views:193Our review is about György Kiss's book, its title being Employment Flexibility and the Protection of Employee Status (A Possible Approach to Examining the Content of the Employment Relationship). The work raises the question of the future of labour law regulation, using the results and findings of the past. After describing the roots of Roman law, we can learn about the development of the current form of labour law through the development of the Germanic, Francophone and Anglo-Saxon legal systems. In addition to the historical view, the dogmatic foundations are also outlined in the work, so the content processing of the employment contract takes place on several levels before the author discusses the labour law applicability of the relational contract theory he raises. The description of all these bases makes the work suitable for those interested in labour law to better understand the contractual theories of different legal systems. We want to give an insight into this in the review, so that in addition to presenting the work, our own personal views and opinions will also appear.
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Specialities of Collective Labour Disputes
217-232Views:176We are currently living in a period when technological, economic and other changes fundamentally influence the nature of legal relationships. There is no difference in the labour law palette, as atypical employment is gaining ground in law enforcement circles. In our view, this development cannot be derived solely on substantive law, but should also be presented at the level of litigation and, where appropriate, ADR procedures. Perhaps it is somewhat ironic that it is precisely the collective labour dispute, which is not popular in Hungarian civil society litigation law, in which the emergence of innovative dispute resolution methods can be observed from time to time. Therefore, our work primarily examines the extrajudicial practice of collective dispute resolution, complemented by the solutions used in the legal systems of some countries less researched by the domestic labour law environment. Our aim is to highlight the potential of ADR methods in collective disputes and to explore new, unknown opportunities for domestic law enforcement.
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Balancing Work and Life: New Developments in the Field of Legal Protection of Workers
25-44Views:188The present study deals with the current labour law questions of balancing work and private life. The topicality of the study is supported by Directive (EU) 2019/1158 which, built on the existing legislative basis, brings several novelties in this regulative area refreshing the key elements of the criteria of equal employment referring to the employees raising children. The researched regulation fits into the high level, socially motivated; worker-protection Directive designated by the European Pillar of Social Rights, consequently, this aspect also plays a role in elaboration. In my analysis, I concentrate on the regulative background, subject of the new Directive, as well as its connection to fundamental social rights and the new norms describing the potentially strengthening legal protection of workers. I draw conclusions based on their synthesis about the predictable future effects of the new regulation.
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Is the Implementation of Home Office Legally Feasible? The Criteria for Home Office and its Framework Within Employment Law
59-82Views:1275The year of 2020 was the challenge of “home office”. Although, the publicity uses the term of “home office” as the legal construction of working from home, this approach is misleading. Moreover, the Hungarian Labour Code does not contain any regulation about “home office”, while this legal source embraces two other methods in connection to work from home. These legal institutes are the teleworking and the legal relationship of outworkers. The problem with the aforementioned legal institutes is that the parties must take into account several rules and must apply these solutions regularly, on a permanent basis. However according to the legal literature, the “home office” is created by the economic and human resource management practice of the employers, where they intend to employ the workers mainly at home irregularly, on an ad-hoc basis. At the same time, “home office” does not have a legal framework in the Hungarian Labour Code, therefore the legal literature has been trying to find a real solution for this employment method in the general norms of the Labour Code. In the following article we are going to use the home office definition of the literatures and highlight the background legal institutes and concepts of this working method. Although we are going to set our opinion about which legal institute may be applicable in this sense, in the conclusion we are going to emphasise that legislation and rules regarding “home office” are indispensable.
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The Transformation of Labour Law Litigation
162-176Views:279From the outset of labor litigation, both theoreticians and practitioners have been preoccupied with the question of what specific regulation this area of law – which has essentially additional elements of private law – requires in order to ensure fair treatment and proceedings for all participants. The aim of the present study is to show how labor litigation is evolving today, outlining the phenomena that have arisen due to the new labor and civil procedure codes.
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Collective Agreement’s Status in Law
Views:581The collective agreement is a Janus-faced legal phenomenon. From one side it has the nature of a contractual relationship where the parties have the right to determine the content of the contract, also including the choice itself, whether they establish it or not. On the other hand, the collective agreement acts as a legal norm as well. From this aspect its regulations are also obligatory for those persons who were not involved during the set-up process, or even for those who disagrees with some parts of the document. Therefore it is a crucial question in labour law as to how these contracts are handled by law. The Hungarian Labour Code came into force in 2012 contained an approach in which the legislator wanted to empower the legal status of collective agreement. To achieve this goal, in some parts the Act gives the parties the possibility to deviate from the law and to customize the norms in order to make it fit their current relationship. In this paper I examine the nature of the Collective Agreement and show its specialities in the Hungarian legal environment.
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Circumstances Affecting the Degree of Restitution in the Jurisprudence of Labour Law
192-208Views:108The study examines the dogmatics of the legal institution of restitution applicable in the case of infringements of personality rights in labour law, as well as looking at the functions determining the sanctions in the international and domestic legal environment. It classifies states based on the effect wished to be triggered with the legal institution as well as regarding the circumstances to be considered. It determines the governing factual elements and circumstances with regards to the degree of the institution of restitution. It projects the standpoints of special literature to the practice. It analyses and classifies trivial cases in the light of judicial case law.
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Effective and Actual? Analysis of Employment-Related Directives in the Legal Practice of the Curia of Hungary Regarding the Enforcement of Workers’ Rights
193-216Views:247In view of the special nature of the employment relationship, subordination of the parties results in a weaker legal position on the employees’ side. Certain guarantees of protection are absolutely necessary to compensate for this asymmetry, thus, among other things, the effectiveness of employees’ enforcement plays a key role. This is why our research seeks to answer the question whether some crucial employment-related directives of the European Union, as well as the broader European Union legal corpus also including legal practice. Furthermore we try to find the answer to the question that, how do these legal sources appear in the domestic legal practice, primarily in the relevant judgments of the Curia of Hungary, and the extent to which these references facilitate the effective enforcement of the workers’ rights.
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The Importance of the Wage Guarantee Fund in the Framework of Labour Law Protection
177-192Views:216Act LXVI of 1994 on the Wage Guarantee Fund and the guarantee system regulated by it, is especially topical nowadays, as more and more employers in Hungary have become insolvent in connection with the crisis caused by the coronavirus epidemic. In many cases, the employers subject to the procedure are not able to meet their wage obligations to their employees, so the state must guarantee the values that can be expressed in exact monetary terms – the work performed and its financial compensation – and at the same time the social security of employees. In the present study, we examine the applicability of the Wage Guarantee Fund, which serves to cover the wages to be paid by insolvent employers, from the perspective of the social security and the enforcement of employees’ claims.
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Working Through Internet in Hungarian Law. Regulation Instead of Banning?
83-95Views:415Working through digital platforms and apps is a new and rare form of work in Hungary. The spread of digital work is quite new all over the world and also part of the wider trend of precarious forms of work. Hungarian labour law faces serious challenges regarding crowdsourcing and working via apps. The main question is how to insert these new forms of work into the existing labour law framework. These new forms may hardly be considered as employment relationships due to the serious differences. Self-employment cannot be the solution either, since it would leave workers without any employment protection. Therefore, regulation of digital work is unavoidable, even if its details are far from clear for the moment.
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Collective Wage Bargaining and the Related Challenges of Labour Law and Labour Relations Regarding Public Services Operated by Publicly Owned Companies
148-161Views:258In the case of state- and municipality-owned companies providing public services, the 2021 salary increase was settled with a six-monthly delay, which was manifested in three-year, so-called “income policy” agreements. However, for the purposes of this paper, the process became relevant mainly due to the aspect of labor relations and it also became suitable for a legal science analysis. During the course of this, within the available space limits, I discuss the process of salary negotiations (with its labor law content and consequences), the theoretical bases of the different collective labor law regulations regarding public assets, and finally, the newly emerging practical issues related to the strike rights regulation of this sector.
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Social Dumping in the Face of Cross-border Collective Agreements and Actions: A Dilemma of the European Legal Practice on the Edge of Law and Economy in the Light of the Framework of International Standards
180-202Views:171In this paper I outline the objectives of the ILO, the conventions relevant to collective bargaining and action, and furthermore the pronouncements of the ILO supervisory bodies. After describing social dumping I examine the jurisprudence of the European Union regarding the collision of fundamental freedoms and collective labour rights in the light of international labour standards. My observation is that the hierarchical relationship between fundamental freedoms and labour rights in favour of the former cannot be maintained even based on EU law.
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Change of Legal Relations: Consequences for Labour Law of the Restructuring of Public Services
81-103Views:232Changes in the organization of public services often have the consequence of changing the employment relationship of those employed among them. The change is often caused by the transformation of civil service legal relations into private employment law. In the background of changes are usually the legislature's intention to maintain legal relations with the successor employers. This intention is realized in Hungarian labor law and civil service law by various legal and technical methods. The paper reviews these in different areas of public services.
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Foreign Loan: Cross-border temporary agency work in Hungary, with special regard to the employment of third-country nationals
43-60Views:308The special feature of temporary agency work is that the employee does not work for the agency which concludes the employment contract with them, but for a third party, the user company, with which the agency enters into a civil law contract for the remunerated transfer of workforce. The article summarises how an international element can appear in this tripartite employment relationship. It covers the rules under which an agency may conclude an employment contract with a foreign employee and also the cases where the agency and the user company are established in different states. Although Hungarian law generally prohibits third-country nationals to work in Hungary as agency workers, this is made possible by an expanding range of exceptions. The article explores the labour law and social security law situation of third-country agency workers in Hungary.
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The Protection of Fundamental Rights of People with Disabilities and Reduced Capacity to Work Using Social Farm Services
83-100Views:189The present study examines the fundamental rights of disabled people using the service of social farms – especially people with disabilities and with reduced capacity to work. These rights are essential for these people in order to ensure their employment. These people are often cut off from the labour market, moreover, they cannot be present there. Therefore, fundamental rights ensured within the Fundamental Law of Hungary play a significant role for treating and employing them equally. Labour law and social law protection confirms this constitutional protection.
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Some Labour Law Aspects of Psychological Contract Theory
50-69Views:233The aim of this paper is to present the central-topics of psychological contract theory, focusing on the relevant labour law contexts. The main research method used is an examination of relevant studies, articles and monographs on the topic, a secondary analysis of empirical research data systematically compiled by the authors, and an exploration of the main labour law aspects and contexts. The difference between an employment contract and a psychological contract is that while the former is a written, legally binding contract, the latter is a theoretical, abstract construct that contains the mutual and implicit expectations of the parties. A psychological contract therefore falls into the category of "extra-legal" contracts, but in certain cases, especially in the event of breach of contract, it may have legal relevance.
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The right to strike in the case-law of the ECtHR
115-133Views:242The right to strike has been long recognized as an important labour right in the European countries protected by constitutions and international conventions on labour and social rights. However, these international conventions mainly contain mere declarations to only pursue the right to strike and do not have an effective protection mechanism. Nevertheless, in the last few decades a human rights perspective on labour law gained ground and thus international organizations and international courts started to derive labour rights like the right to strike from civil and political rights and therefore some of these labour rights enjoy the same level of protection as the first generation human rights. In its recent judgements, the European Court of Human Rights stated that the right to strike is protected under Article 11 of the European Convention on Human Rights and developed a case law on the requirements of a lawful strike action, secondary strike actions and the restrictions of the right to strike.
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Review of the Book “Posted Workers in EU and Hungarian Law” by Gábor Kártyás
209-220Views:94In today’s globalized labour law, where borders, especially within the European Union, seem to be increasingly blurred, cross-border situations are becoming more common. Due to digitalisation and technology, which is evolving at a rapid pace especially in the present situation, working abroad can now be carried out without the worker actually moving away from his desk, namely not physically entering another country. In view of this, the topicality and exciting nature of the processed topic can hardly be questioned. Following a holistic approach, the reviewed book guides the readers with unique detail and provides them with a sure point of reference on the swampy ground of the posting, which is surrounded by many challenges and conflicts of interests. In our review, we will describe and evaluate the content of the monograph along these sure points of reference.
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Recent Developments in Labour Law Liability
145-155Views:164This article is about the new labour law regulation (Act 2012/1.) in the field of liability for damages.
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Trends, Directions, Legislative Efforts: the Abolition of the Civil Servant Status
179-195Views:161One of the most spectacular changes to the Hungarian employment system in recent years is that many former civil servants (‘közalkalmazott’) have lost their status and come under the scope of the Labour Code or have been subject to newly created status laws. As the Act on Civil Servants (‘Kjt.’) applies now only a few groups of civil servants, having been emptied out by successive reforms, it is not surprising that the future existence of the Act and of the autonomous status of civil servants is being called into question. But what factors have led to the gradual, and in recent years accelerating, decline of the Kjt.? Is the 'disappearance' of civil servants the result of internal processes that rationally follow from the development of the law, or is it the result of independent economic and political considerations? What was the original role of the Kjt. in the system of employment relationships and how can its ‘emptying’ be understood in an international and historical context? The study argues that this process is not an inevitable consequence of legal doctrinal developments, but rather the result of legislative efforts to abolish the uniform legal status of human service providers. Hungarian legislation is no exception to the neoliberal and neo-Weberian trends, while the comparative advantages previously enjoyed by civil servants are eroding and the regulation is becoming highly fragmented.