Тревожни тенденции в българската нормотворческа практика - за поредното ненужно увеличаване на административната тежест на работодателите

Author(s): Andrey Aleksandrov / Language(s): Bulgarian Issue: 3/2020

The subject of this study is the deepening tendency to burden employers with administrative obligations, for which it is difficult to find a logical explanation. The amendments to the Ordinance No 5 of 29.12.2002 on the content and procedure for sending the notification under Art. 62, Para 5 of the Labour Code (promulgated in SG, issue 17 of 26.02.2021, in force since 01.03.2021) give specific reason for confirmation of this alarming conclusion. Conclusions and recommendations of a more general nature have been drawn from the private case to prevent similar phenomena in the future.

Продължителност на неплатения отпуск по чл. 160, ал. 1 от Кодекса на труда и начин за неговото броене

Author(s): Ivaylo Ivanov Staykov / Language(s): Bulgarian Issue: 3/2020

The subject of this scientific research is the issue about the duration (term) of the unpaid leave Art. 160, para. 1 of the Labour Code and the manner of its counting (calculation).

За свободата и дисциплината в трудовото право - съвременни аспекти в дигиталната ера

Author(s): Andriyana Andreeva,Galina Yolova / Language(s): Bulgarian Issue: 3/2020

This article examines some actual questions related to the freedom of labour, as a basic principle of labour law and the concept of labour discipline. It accentuates the modern aspects of these concepts, decided by the digital environment of labour performance. The legal analysis of the current labour law and the reference made to the ongoing processes allow to draw conclusions about the upcoming transformations. In the end, the study produces outlines and proposals are made for improving the regulation.

За трудовото правоотношение и неговата правна уредба

Author(s): Emil Mingov / Language(s): Bulgarian Issue: 2/2003

Practică judiciară neunitară. Obligația de plată a dobânzii și a penalităților de întârziere pentru indemnizația de șomaj încasată de salariatul reîncadrat în muncă după anularea deciziei nelegale de concediere

Author(s): Răzvan Anghel / Language(s): Romanian Issue: 04/2020

In practice, employees dismissed for reasons not attributable to them, although they challenge the dismissal decision which they consider illegal, also apply for and obtain unemployment benefits. If the appeal was admitted and the dismissal decision annulled as illegal, the competent institution ordered the reimbursement of the unemployment benefit received. On the occasion of issuing the reimbursement decision for the amount of unemployment benefit received, however, the amount of ancillary tax obligations consisting of interest and late payment penalties was also included in the debit. Different opinions have been identified in the case law on the existence and extent of these ancillary obligations. The article presents the different jurisprudential opinions, illustrated with extracts from courts decisions, accompanied by the author commentaries.

Конституцията и правото на стачка на държавните служители

Author(s): Vassil Mrachkov / Language(s): Bulgarian Issue: 6/1999

Координацията на българското осигурително право с международните и европейските стандарти

Author(s): Krassimira Sredkova / Language(s): Bulgarian Issue: 6/1999

This survey is a part of the Consensus project ZZ—9710—02 ,Detailed Preparation and Planning for the Implementation of the EU Coordination Rules". It is devoted to the basic principles of the coordination and its implementation in the Bulgarian social secu- rity schemes. Several basic problems are treated in this survey — the coordination of the Bulgarian social security law with the EU-provisions as a condition for the accession of Bulgaria to the Union; the main requirements for the coordination of the social security systems according to the Regulation 1408/71/EEC; the social security system in Bulgaria; the legal regulation of social security relationships with an international elements (multi- lateral agreements, bilateral agreements, national legislation). On the basis of the legislation in force some proposals de lege ferenda as well as practical steps are offered in the process of coordination.

Необходими промени в Закона за здравното осигуряване

Author(s): Krassimira Sredkova / Language(s): Bulgarian Issue: 5/1999

Practică judiciară neunitară. Modul de calcul al duratei preavizului în cazul concedierii

Author(s): Răzvan Anghel / Language(s): Romanian Issue: 07/2020

In the judicial practice it was found that there is no unitary point of view on the method of calculating the duration of the notice in case of dismissal, respectively if the first and last day of the term established by days is not taken into account, or if these are also taken into account for verifying the observance of the provisions regarding the term of notice whose violation attracts the sanction of nullity. The article presents different jurisprudential opinions, illustrated with extracts from court decisions, accompanied by a comment by the author.

Practică judiciară neunitară. Efectele clauzelor contractelor colective de muncă atunci când stabilesc drepturi salariale la un nivel considerat inferior celui minim stabilit în lege

Author(s): Răzvan Anghel / Language(s): Romanian Issue: 09/2020

The article presents the different jurisprudential opinions, illustrated with extracts from courts decisions, regarding the effects of the clauses of the collective labor contracts when they establish salary rights at a level considered inferior to the minimum established by law, accompanied by the author commentaries.

Dovedirea stagiului de cotizare şi a veniturilor corespunzând bazei de calcul a contribuţiei de asigurări sociale, altfel decât cu declaraţii nominale de asigurare, în sistemul public de pensii

Author(s): Mihail Stănescu-Sas / Language(s): Romanian Issue: 10/2020

Within the public pensions system, the contribution periods starting from 1 April 2001 and the income representing the basis of the corresponding monthly scores are grounded, as a general rule, according to article 10 paragraph 1 of Law no. 263/2010, on the content of the nominal social security declarations. For those cases when “the performance of employment or public office relations cannot be proven” in this manner, paragraph 2 of the same article allows the insured person to prove the corresponding contribution period, by other means of evidence. This exception, which at first sight appears to regard only the evidentiary regime of the contribution period and income, was differently received within case-law, as I illustrate at large in this article. The analysis of the selected court decisions reveals that, beyond a derogation in the line of evidence, article 10 paragraph 2 of Law no. 263/2010 enshrines a genuine exception from the principle of contributivity itself, to which the general rule of evidence provided by paragraph 1 of the same article is related. This research also sets the boundaries of the applicability of special provision of paragraph 2, in relation to paragraph 1. Article 8 paragraph 2 of the new Law regarding the public pensions system no. 127/2019, awaited to come into force on 1 September 2021, restrains the scope of application of this exception to the cases when the existence (and not anymore just the performance) of employment or public office relations cannot be proven by nominal social security declarations.

RESPONSIBLE EMPLOYMENT POLICY: COMPARATIVE ANALYSIS OF CROATIAN, SWEDISH AND DANISH ACTIVE LABOUR MARKET POLICIES

Author(s): Helga Špadina / Language(s): English Issue: 89/2020

In the past decades, the reduction of unemployment has been one of the crucial areas of social policies of the EU Member States because it is a key to economic growth and development. Taking into consideration the fast-changing labour market needs and the rapid transformation of labour relations, European public employment services are continuously creating new measures of active employment, with the aim to assist as many unemployed beneficiaries as possible and to swiftly re-integrate them into the labour markets. The main goal of active labour market programs is to make the matching process more efficient and to increase the number of successful matches of job vacancies and job seekers. Referring to examples of selected active employment measures in Croatia, Sweden and Denmark, this paper provides a comparative analysis of active labour market measures. The paper is divided into four sections. Section 1 provides an overview of measures to reduce unemployment; section 2 outlines the purpose of active labour market measures; section 3 provides a comparative analysis of five active labour market programs in Croatia, Denmark and Sweden, and a brief description of new activation strategies during Covid-19 in Croatia. The conclusion is that the creation of impactful social policies for employment substantially rests on conducting comprehensive analysis of the impact of active labour market measures from the perspective of new employment opportunities and the acquisition of new skills, as well as the analysis of the level of social inclusion of jobseekers

ЗАШТИТА УЧЕСНИКА ОГЛАСА ИЛИ КОНКУРСА И ПРАВО НА ДЕЛОТВОРНО ПРАВНО СРЕДСТВО У ОПШТЕМ РЕЖИМУ РАДНИХ ОДНОСА

Author(s): Ljubinka Kovačević / Language(s): Serbian Issue: 89/2020

Public job announcements and advertisements are instruments which provide for exercising the constitutional principle that all available jobs must be accessible to everyone under equal conditions. The application of this principle is most closely connected with the effective exercise of freedom of work and the right to work. For this reason, recruitment procedure cannot be beyond the scope of control which enables immediate elimination of irregularities in this procedure. In that context, this article discusses the issue of the right of participants in public announcements or job advertisements to an effective legal remedy, not only via the right to judicial and extrajudicial remedies, but also via the right to object or appeal, as the means to achieve internal protection of rights. In the Republic of Serbia, this issue is particularly delicate because the Labour Act does not recognize the two-instance internal procedure, while judicial protection of the rights of jobseekers has not been directly regulated, with the exception of protection against discrimination, and protection of workers whose employment was previously terminated due to redundancy, resulting in their employment priority when hiring for the same jobs. This legal solution is accompanied by a number of open questions, especially as the participants in public announcements and job advertisements procedures in special employment regimes enjoy the two instance internal protection in the same situation, which calls into question the effective application of the principle of equality before the law. Therefore, the article formulates proposals de lege ferenda to create conditions for effective exercise of the right to work, freedom of work, and protection against discrimination in a procedure in which a worker seeks to acquire a status that will provide him with the means of subsistence as well as an opportunity to develop his personality through work.

ОДГОВОРНОСТ У РАДНОМ ОДНОСУ – ОСОБЕНОСТИ ДИСЦИПЛИНСКЕ ОДГОВОРНОСТИ У ОПШТЕМ И ПОСЕБНОМ РЕЖИМУ РАДНИХ ОДНОСА

Author(s): Slobodanka Kovačević Perić / Language(s): Serbian Issue: 89/2020

Establishing an employment relationship involves acquiring or assuming certain rights, duties and responsibilities for both parties in the employment relationship, in accordance with the law, the collective agreement, the employer’s general administrative acts, and the employment contract. An employment relationship involves not only the parties’ rights and duties but also their responsibility. Responsibility can be of legal and non-legal nature. Legal responsibility (liability) is of greater importance for the employees. On the whole, legal responsibility may be disciplinary, material, administrative (for misdemeanors), economic (for economic offenses) and criminal in nature. The subject matter of labour law includes only disciplinary and material liability of the employee, while other types of legal responsibility are the subject matter of other legal disciplines. Although the former labour legislation of the Republic of Serbia regulated the disciplinary liability of the employees in detail, such practice has been completely abandoned in the new Labour Act, which only regulates the summary dismissal procedure. Unlike the Labour Act, the Civil Servants Act contains numerous provisions on the disciplinary and material liability of civil servants. This Act also regulates procedural issues regarding the rules for initiating and conducting a disciplinary proceeding, entering disciplinary sanctions in or removing them from the personnel files, etc. In this paper, the author analyzes disciplinary liability by examining the specifics of substantive and procedural norms for establishing this form of liability in the general and special employment relations regime. From the aspect of the rule of law, the author provides a critical analysis of such legislative solutions and considers their legal justification.

Zaštita mladih ljudi na radu u smislu Direktive br. 94/33/EZ

Author(s): Predrag Jovanović / Language(s): Serbian Issue: 1/2020

Young people have traditionally enjoyed special protection at work. The reason is their vulnerability. On the one hand their vulnerability is linked to their psychophysical immaturity and inability to recognize and protect themselves from the dangers and risks of the different types that accompany each type of work and, on the other, their vulnerability is related to the fact that they are at a stage of life when they acquire elementary education that will make it easier for them to get involved in all walks of life, and any work at that stage of life can interfere with their schooling. Directive 94/33 distinguishes between: young person; adolescent and child, and for each term connects appropriate measures of safety and health at work. In principle, the work of children (persons under 15 years of age, or young people still in the compulsory schooling process) is prohibited. On rare occasions children may do under combined work education and training programs light jobs and cultural and similar activities, based on individual work permits and under certain conditions to be regulated by national legislation. These exceptions to the principle of the prohibition of child labour have not been adequately transposed (in the spirit of Directive 94/33) into the law of Serbia and Montenegro. The work of young persons and adolescents (persons between 15 and 18 years of age) is licit, under the conditions laid down in Directive 94/33 and national legislation. The legislation of Serbia and Montenegro provides key labour-legal frameworks for the safe work of young persons and adolescents (minors) in the spirit of Directive 94/33.

Will ‘Yellow’ Unions Disappear After the Amendment to Act on Trade Unions?

Author(s): Magdalena Rycak / Language(s): English Issue: 95/2021

The article aims to answer the question whether, after the amendment to the provisions of Act on trade unions, which entered into force on 1 January 2019, the phenomenon of creating and practical functioning of the so-called ‘yellow’ unions that, although developed as a workers’ organisation but in fact function mainly for the purpose of protecting an employer’s interests, will disappear. The article explains the concept of ‘yellow’ unions, discusses the most important recent amendments to the provisions of Act on trade unions, and analyses the binding provisions with regard to potential ‘profitability’ of the development of yellow unions from the point of view of employers’ interests.

The Right to Strike and Other Forms of Protest of Persons Performing Gainful Employment Under Civil Law

Author(s): Artur Tomanek / Language(s): English Issue: 95/2021

This article deals with the issue of extending the right to conduct a collective labour dispute to persons performing paid work under civil law contracts, after the entry into force of the Act of 5 July 2018 amending the Act on Trade Unions and Certain Other Acts (Journal of Laws 2018, item 1608). The author considers the question whether and to what extent the right to strike and to take industrial action, provided for in the Act of 23 May 1991 on Resolution of Collective Disputes (consolidated text: Journal of Laws 2020, item 123), extends to civil lawful contractors. The position is presented that the proper application of the above mentioned law to the indicated circle of work contractors cannot mean the deprivation or limitation of their right to strike and to take industrial action. The solutions implemented by the Polish legislator with regard to persons performing work outside the employment relationship are more advantageous and far-reaching in comparison with the requirements resulting from the international labour law acts binding on Poland. However, there are specific problems with applying to these persons some of the regulations included in the Act on Resolution of Collective Disputes. These problems results from the fact that the individual legal relationship between these persons and the entities employing them is based on the provisions of civil law, and not on the Labour Code.

Powers of Trade Union Activists Engaged in Self-Employment – Assessment of Polish Legislation

Author(s): Tomasz Duraj / Language(s): English Issue: 95/2021

The objective of the foregoing article is an analysis of the rights which the Polish legislature granted to self-employed trade union activists after the extension of coalition rights to these persons. In this regard, the trade union law extended to self-employed persons working as sole traders protection, which until 2019 was reserved exclusively for employees. Pursuant to the amendment of July 5, 2018, self-employed trade union activists were granted – based on international standards – the right to non-discrimination on the basis of performing a trade union function, the right to paid leaves from work, both permanent and ad hoc in order to carry out ongoing activities resulting from the exercise of a trade union function, and the protection of the sustainability of civil law contracts which form the legal basis for the services provided. the exercise of a trade union function, and the protection of the sustainability of civil law contracts which form the legal basis for the services provided.The author positively assesses the very tendency to extend employee rights to self-employed persons acting as union activists. However, serious doubts are raised by the scope of privileges guaranteed to non-employee trade union activists and the lack of any criteria differentiating this protection. Following the amendment of the trade union law, the legislator practically equates the scope of rights of self-employed trade union activists with the situation of trade union activists with employee status. This is not the right direction. This regulation does not take into account the specificity of self-employed persons, who most often do not have such strong legal relationship with the employing entity as employees. The legislature does not sufficiently notice the distinctness resulting from civil law contracts, which form the basis for the provision of work by the selfemployed the separateness resulting from civil law contracts, which constitute the basis for the performance of work by the self-employed. According to the author, the scope of rights guaranteed de lege lata to self-employed union activists constitutes an excessive and unjustified interference with the fundamental principle of freedom of contract on the basis of civil law employment relations (Art. 3531 of the Civil Code). From the point of view of international standards, it would be enough to ensure the right of these persons to non-discrimination on the basis of performing a trade union function; the right to unpaid temporary leaves from work in order to perform current activities resulting from the performed trade union function; the right to high compensation in the event of termination of a civil law contract with a self-employed trade union activist in connection with the performance of his functions in trade union bodies and full jurisdiction of labour courts in cases arising from the application of trade union law provisions.The disadvantage of the regulation at issue is also that Polish collective labour law does not in any way differentiate the scope of the rights and privileges guaranteed to self-employed trade union activists, ensuring the same level of protection for all. In that area, it appears that the legislature de lege ferenda should differentiate the scope of that protection by referring to the criterion of economic dependence on the hiring entity for which the services are provided.

The Legal Nature of Remuneration for Periods of Release From the Obligation to Perform Work for Trade Union Activists

Author(s): Małgorzata Mędrala / Language(s): English Issue: 95/2021

In this article the Author analizes the issue of legal character of trade union activists released from work, covered by employers. The Author underlines the latest extension of subjective rights in this matter by Polish legislator to other than an employee persons who perform gainful work. In her opinion the remuneration for work, paid by employers at abovementioned basis may be qualified as work-related benefits of a social (even public) nature. In her opinion the current regulations in this matter are questionable in the light of the principle of the independence of trade unions and the principle of proportionality.

Whistleblower Rights and Protection in The Workplace: the Role of Trade Unions in Poland Selected Issues

Author(s): Łucja Kobroń-Gąsiorowska / Language(s): English Issue: 95/2021

The article discusses selected problems related to trade unions’ functions and their future role in the protection of whistleblowers. The author analyzes the current provisions of the Act on Trade Unions concerning the functioning of trade unions in protecting whistleblowers in the workplace, reporting irregularities (illegal, unethical or otherwise inappropriate activities) and the use of collective bargaining power of trade unions. Workers’ representatives have an express right to assist whistleblowers as defined by national law. The author states that the functions of trade unions under trade union law in Poland in reporting irregularities are often perceived as signaling and, consequently, limited.