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Peculiarities of labor of medical and pharmaceutical workers: a comparative analysis of legislations of Kazakhstan and some OECD countries

Author(s): Guzal Gazinurovna GALIAKBAROVA / Language(s): English Issue: 154/2021

This article discusses some issues of labor regulation of medical and pharmaceutical workers, the peculiarities of health systems in some countries of the Organization for Economic Cooperation and Development, a comparative analysis of their experience and Kazakhstan is carried out. The specificity of the legal status of medical and pharmaceutical workers is also considered, which is explained by the fact that its regulation is based not only on general norms of labor law, but also on special regulations affecting various features of the activities of this category of workers. At the same time, it is noted that the basis of the legislative regulation of the work of medical and pharmaceutical workers is the generally recognized principles and norms of international law, as well as the norms of national legislation. The article focuses on the fact that among the variety of sources concerning the legal status of various categories of workers, there is no separate comprehensive study devoted to the peculiarities of legal regulation of both medical and pharmaceutical workers, in connection with which the chosen topic of scientific research is updated.

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The Idea of the “General Clause” in American Labor Law

Author(s): Charles F. Szymanski / Language(s): English Issue: 26/2021

European legal systems have long encompassed the concept of the “general clause”, particularly in contract and labor law. The general clause includes unwritten legal norms such as good faith and public morality, and these principles are duly incorporated in the process of construing civil and labor contracts. While the general clause itself is formally absent in common law systems, its principles have found their way into modern British and American law. Two primary examples include the doctrines of good faith and unconscionability. In a broader sense, the idea of introducing rather indeterminate legal norms to be construed and interpreted by judges appears to be well‑ suited to a common law system. However, as applied to American labor law, the very indeterminacy of these terms has had rather negative effects on the rights of employees and the labor unions that represent them. Specifically, this article examines the good faith requirement in collective bargaining under the National Labor Relations Act (NLRA) and the doctrine of unconscionability in employment arbitration agreements, and concludes that they both should be supplemented by more definite standards in order to effectively protect employees.

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General Clauses that Define the Scope of Contractual Freedom in Concluded Settlements in Disputes Between the Employee and the Employer

Author(s): Krzysztof Baran / Language(s): English Issue: 26/2021

This paper aims to present the issue of general clauses that define the scope of contractual freedom in settlements which have been concluded in disputes between the employee and the employer. The aspect of mutual concessions is also discussed. The violation of the problem of justified interest is considered. The paper shows that general clauses are not mutually exclusive, but usually overlap in a settlement. Therefore, a given settlement may violate various general clauses. The vagueness of their conceptual scopes sometimes generates significant practical problems worth to be observed.

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General Clauses in the Act on So‑Called Collective Redundancies

Author(s): Iwona Sierocka / Language(s): English Issue: 26/2021

This work is focused on aspects of the general clauses used by the legislator in the Act on Collective Redundancies of 2003, i.e. reasons not attributable to an employee and their exclusivity. The first clause covers all cases of termination of an employment relationship that are caused by circumstances affecting the employer or independent of the parties to the employment relationship. On the other hand, “exclusivity” of the reasons not attributable to an employee is confirmed if circumstances not attributable to the employee and the way of performing employment relationship duties thereby constitute the original cause of a definite termination or a notice of change. Analysing the scope of application of the said indeterminate phrases, the author also refers to the principles of community life.

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Powołanie jako podstawa nawiązania stosunku pracy w samorządzie terytorialnym a regulacje kodeksu pracy

Author(s): Aneta Giedrewicz-Niewińska / Language(s): Polish Issue: 26/2021

The subject of the article is the assessment of the legal situation of employees with whom an employment relationship has been established on the basis of appointment in selected local government units. In particular, the considerations apply to people employed in council offices (poviat starosty), marshals’ offices and local government cultural institutions. The legal situation of the above‑mentioned persons is shaped by specific and common provisions. According to the author of the article, the tendency of the legislator not to take into account the code‑based employment relationship model when creating a special regulation is more and more clearly visible.

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Obiektywne przyczyny leżące po stronie pracodawcy jako przesłanka zawarcia „nielimitowanej” umowy o pracę na czas określony

Author(s): Karol Łapiński / Language(s): Polish Issue: 26/2021

The current wording of Art. 251 § 4 point 4 of the Labor Code, valid since 22.02.2016, is an example of a general clause in labor law. At the same time, the “objective reasons” of the so‑called “unlimited” fixed‑term contracts entered into belong to the clauses that change their meaning depending on the person who applies an established rule of law. The use of “objective reasons on the part of the employer” on purpose to limit the abuse of “temporary employment” should generally be assessed as incorrect. According to this, the Court of Justice of the European Union may judge this regulation to be illegal according to Clause 5 of Council Directive 99/70 / EC of 28 June 1999, and as incompatible with the purpose and the effectiveness of the framework agreement. Therefore, it is necessary to replace the general clause used by the legislator with further, more specific premises of “objective reasons” for entering into “unlimited” fixed‑term employment contracts.

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Kilka uwag o zwolnieniu z opłaty od skargi na przewlekłość postępowania skarżącego w sprawach z zakresu prawa pracy i ubezpieczeń społecznych. Glosa do uchwały Sądu Najwyższego z dnia 6 września 2006 r. (III SPZP 2/06)

Author(s): Tomasz Demendecki / Language(s): Polish Issue: 4/2019

The appropriate system of reimbursement of the costs of proceedings and the institution of exemption from such costs both guarantee the real implementation of the right to court. In connection with the lack of explicit regulation in the Act of 17 June 2004 on complaints about the breach of the right to a trial within a reasonable time in practice, it becomes very important to determine whether it is possible to exempt an authorised entity (the complainant) from a fixed fee of complaint about excessive length of proceedings in matters of labour and social security law. In a resolution of 6 September 2006 (III SPZP 2/06) the Supreme Court stated that a complaint about excessive length of proceedings filed by the insured regarding the appeal examined by the Labour and Social Security Court of fees (Article 96 (1) (4) of the Act of 28 July 2005 on court costs in civil matters). This resolution confirms that in the indicated category of cases there is no obligation to pay the fee, and if it has been paid it is refundable. The position held by the Supreme Court in the above-mentioned resolution shall be accepted. When it comes to conclusion regarding de lege ferenda proposals, there is a need to make appropriate normative changes and introduce to the Act of 17 June 2004 on complaints about the breach of the right to a trial within a reasonable time a suitable regulation that would reflect the right fee exemption, as mentioned above.

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Structural changes existing at the level of local labour markets - a conceptual constructive analysis framework

Author(s): Speranţa Pîrciog,Cristina Lincaru / Language(s): English Issue: 1/2019

Increasing complexity of socio-economic systems is reflected by increasing complexity of policies. The multilevel architecture of policies global, regional-continual, national, regional and local is segmented more and more policies. The New Multiannual Financial Framework (NMFF) for the period 2021-2027 in its 2019 draft include at EU level eight Policies and 17 priority sectors. Competition is the driving force of the economy - driver leading to structural changes, at local labour markets. The problem is divided in two main plans: “What means to be competitive?” and “How to be competitive?” Further, using a conceptual analysis of key concepts for the main policies included in the new strategic cycle (2021-2017), we create a framework for policy analysis structural changes of local labour markets. Our original contribution is framework design using concepts and instruments provided by the New Economic Geography theory and the Centre – Periphery Model. The new conceptual relationship Core - Periphery is a structural relationship from the global level, to regional development and labour market segmentation, present as well as at micro level, in organisations structures. Industrialization in global markets shapes the previous growth model manifested in discontinuous times. Radical innovation shapes in digital transformation shapes the new model of growth manifested in disruptive times. Our contribution is framework for policy analysis structural changes of local labour markets, classifying the EU’s NMFF branches by the core-periphery relation.

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IS THE INCIDENCE OF ENVELOPE WAGES LESS PREVALENT IN MORE MODERNISED AND DEVELOPED COUNTRIES? AM EMPIRICAL ANALYSIS BASED ON EU28 MULTILEVEL APPROACH

Author(s): Adriana Ana Maria Davidescu,Friedrich Schneider / Language(s): English Issue: 1/2019

The paper aims to investigate the validity of modernisation thesis according to which the incidence of envelope wages is less prevalent in more developed and modernised countries, using the EU 28 member states and the multilevel modelling approach. In order to do that, a two-level logistic regression model in which the first level includes individuals’ characteristics and the second one quantifies some proxies for modernisation thesis. While most studies provide evidence on the determinants of informality at the level of individual country or cross-country analysis, the present study has the advantage of analysing the prevalence of envelope wages using a special type of models controlling for both micro and macro information. The envelope wage is defined as a registered formal employment agreement, and an extra, undeclared “envelope wage,” via a verbal unwritten agreement. In order to capture the incidence of envelope wages, the 2013 Special Euro barometer survey was used. Empirical results revealed the total validity of the modernisation thesis, in countries with higher levels of economic development, higher qualities of government, a low level of corruption, a higher level of happy planet as well as a higher level of social progress, salary under-reporting is less prevalent. Also, a lower prevalence of envelope wages was proved to be associated with a higher tax morale.

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Industry 4.0, Legal Protection of the Employee and Intercultural Impact of Labour Migration

Author(s): Alex Kainz / Language(s): English Issue: 1/2021

Industry - Industry 4.0 [I4.0] is the main topic of discussions and proposals for innovative changes. In the last five years, inside industry sectors took place the intellectual clashes among digitisation, robotisation and automation. These concepts have been combined with performance, efficiency gains, steady economic growth, employment, labour migration, and increasing labour productivity in all managerial or economic forums. In particular, the European Union [EU] is one of the foremost leaders in improving workforce quality, given the increasing share of robotics and automation. The competitive pressure, beset on individual EU member states by countries with low-cost labour, is increased by assessing economic growth, increasing labour productivity, and setting social-law standards in the EU. On the other hand, increasing the automation of production plants leads to increased employment pressure and contributes to managed labour migration. This migration is mainly about the pressure on competencies, quality, number of employees and the negative development of the demographic curve in the EU. All this reflects the demand for more robust legal protection for workers in the field of social assistance and legal regulations generally linked to a rapid change in labour market conditions. The resulting mix will have a significant impact on the economy’s performance and competitiveness.

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ANTI-COVID LABOUR LAW IN POLAND

Author(s): Jakub Stelina / Language(s): English Issue: 1/2021

A comprehensive assessment of the anti-Covid policy in Poland will be possible after the epidemic has ceased, its social and economic consequences being fully known. However, certain reflections in that respect arise even now. The state's response speed should be assessed positively. Actions to prevent the negative economic effects of the epidemic were taken before the first case of the coronavirus occurred in this country. Attention should also be paid to the flexible reaction of the state to the emerging problems, as evidenced by subsequent amendments to the Anti-Crisis Shield. It seems that targeting the support instruments towards maintaining employment and protection of the existing jobs has brought about good results.

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THEORETICAL AND PRACTICAL VALENCIES OF THE SANCTION OF LEGAL NULLITY OF THE ADMINISTRATIVE ACT OF ESTABLISHING THE TERMINATION OF WORK RELATIONSHIPS OF THE PUBLIC SERVANT

Author(s): Carmen Constantina Nenu / Language(s): English Issue: 1/2021

The stability of the work legal relationship and the lawfulness that should govern any administrative act, are elements that, depending on their damage, entail the dispossession of legal effects of the act deciding or establishing the termination of the work relationship of the public servant. Consequently, an analysis of the provisions of the Administrative Code on the institution of the legal nullity of the administrative act of termination of work relationships is meant to point out the significant importance of complying with the substantive and formal issues of the administrative act with individual character by which the legal work relationships of the public servant cease.

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Ocena poziomu zrozumienia zasad lean management przez pracowników linii produkcyjnych i montażowych

Author(s): Dorota Klimecka-Tatar / Language(s): Polish Issue: 11/2021

Shaping the working environment in the production space is a very important aspect both from the point of view of occupational health and safety, as well as efficiency and production processes continuity. Modeling conditions at the workplace relates primarily to compliance with legal provisions and minimizing the impact of various factors on the employee. In the light of modern management techniques, the full package of solutions for improving the work environment includes the concept of lean management supported by tools, methods and concepts, such as the 5S method, kaizen, continuous improvement. This paper presents the results of research aimed at determining the level of the lean management basic principles understanding by employees from manufacturing companies.

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INVOCATION OF THE FORCE MAJEURE CLAUSE REGARDING THE EXECUTION OF EMPLOYMENT CONTRACTS

Author(s): Dan Ţop / Language(s): English Issue: 1 (54)/2022

Among the situations in which the individual employment contract is suspendedby law, according to the Labor Code, may be the force majeure. It cannot be considered ingeneral that the Coronavirus pandemic represents a major force that automatically determinesthe suspension of individual employment contracts; there must be a causal link between thepandemic and the impossibility of continuing employment. During the state of emergency, theimpossibility to execute the individual employment contract is temporary, and the employercannot order the termination of the individual employment contract

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Дистанционната работа в периода на разпространение на коронавирусната инфекция в Руската федерация

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Дистанционната работа в периода на разпространение на коронавирусната инфекция в Руската федерация

Author(s): Elena Borodina / Language(s): Bulgarian Issue: 2/2021

The article deals with those main issues faced by the employees and employers in the course of employment relationships which are connected with the transition to a remote form of work in the Russian Federation in the year 2020. Court practice examples are given. The Law on Remote Work, which is currently effective, managed to regulate numerous legislative issues. A great step has been taken in the direction of electronic flow of documents. The most important novelty is that almost all matters connected with the interaction with the employee must be resolved either through a local regulatory act or through the employment contract.

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Restricțiile salariaților în timpul liber – granița (invizibilă) dintre timpul de muncă și perioada de repaus. Nevoia de legiferare și de compensare a perioadei de permanență

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Restricțiile salariaților în timpul liber – granița (invizibilă) dintre timpul de muncă și perioada de repaus. Nevoia de legiferare și de compensare a perioadei de permanență

Author(s): Alexandra-Georgiana Vâlcelaru / Language(s): Romanian Issue: 3/2021

Due to Covid-19 pandemic, the work-life balance is a very actual topic of discussion, especially as a result of the widespread use of work from home and telework. Thus, the European Union lawmakers want to give workers the right to disconnect, while in Romania there is an initiative to amend the labor legislation in order to make the employment relations more flexible. In this context, we turn the spotlight to an extremely important aspect of the working time, which is likely to undermine the work-life balance, namely the permanence period or the restriction clauses in leisure time. Situated at the limit between working time and rest period, they narrow down the employees` possibilities to manage their rest period at will, being in fact available for the employer, in which case, in our opinion, should have specific compensatory rights.

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Riscurile psihosociale întâlnite de salariaţi în economia digitală. Dreptul la deconectare

Author(s): Alexandra-Georgiana Vâlcelaru / Language(s): Romanian Issue: 4/2021

Although it can be considered as an answer to many of the problems faced by the parties of an employment relationship, digital work, regardless of the form in which it is performed, exposes workers to a number of psychosocial risks, such as harm to their physical and mental health, but also to their well-being. The most conclusive example is the one provided by the Sars-CoV-2 pandemic, which redefined employment relations, but also brought to the attention the problem of the burnout syndrome faced by the digital workers. In this context, internationally, both states, through ammendments of the legislation, and employees, through internal policies try to reduce the burnout phenomenon, one of the most important measures being the regulation of the digital workers right to disconnect.

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Dečiji rad u međunarodnom i evropskom pravu

Author(s): Predrag Jovanović / Language(s): Serbian Issue: 2/2021

Children/youth vulnerability is a specific characteristic of such persons caused by their age and the need or obligation to acquire primary education, in accordance with the national regulations. Both in the international and national law, this yields the need to provide special measures for their protection during employment and work, so that their vulnerability would not put them in an unfavourable position compared to the rest of population and the ones who work. In this respect, selected international and national legal acts have been consulted.As far as children (persons under the age of 15) are concerned, the law of Serbia and Montenegro prohibits their work, apart from exceptional cases. They include practical training stipulated by the school syllabus, working within student cooperatives, performing certain activities in the field of culture (cinema, music, painting, etc.) and advertising (commercial advertising and modelling). However, what is missing in such cases is the precise regulation in terms of legal form and the conditions for hiring children. Additionally, defining easier jobs which children can perform and the conditions under which they can work, in accordance with the consulted international documents is non-existent. Youth work (minors, persons between the age of 15 and 18) is licit in a particular manner and under certain conditions, in terms of the duration of working hours (up to 35 hours a week), with an absolute prohibition on working overtime and a relative prohibition on night work (night work is allowed on rare occasions and under certain conditions for certain industries and in cases of force majeure). The youth cannot do hazardous or harmful work (harmful radiation, poisons, and carcinogenic materials) or do heavy labour (hard manual labour, working underground, under water, at heights, etc.).

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Censorship and Whistleblowing in a Workplace: Selected Issues

Author(s): Łucja Kobroń-Gąsiorowska / Language(s): English Issue: 97/2021

The article will present four cases of abuses against Polish whistleblowers, including the last one from the period of the COVID-19 pandemic. Therefore, this article aims to draw attention to the problem of abuses against whistleblowers in Poland in the context of the employee’s obligation to care for the welfare of the workplace and the integrally related loyalty to the employer. The author used the upcoming implementation of the Directive of the European Parliament and the Council (EU) 2019/1937 of 23 October 2019 on the protection of persons reporting breaches of EU law as a background for her considerations. The author claims that the legislator in Poland will confront the challenge of redefining the issue of loyalty in labor law and the related freedom of expression of employees.

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Optymalizacja podstawy wymiaru składki na ubezpieczenie społeczne osób prowadzących pozarolniczą działalność gospodarczą

Author(s): Marcin Krajewski / Language(s): Polish Issue: 97/2021

The article presents methods of optimizing the basis for the social insurance contribution rates for individuals operating a business enterprise on their own pursuant to provisions applicable to business activities. The consequences of applying optimization are also analyzed, both from the point of view of the insured person, the income of the Social Insurance Fund and the impact of optimization on the labor market. A person starting a non-agricultural business activity may pay lower contributions for up to sixty-six months. Such a long period of preference applied by the legislator causes short-term benefits in the form of lower operating costs, but in the future it will lower the level of pension and disability benefits.

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