The Constitutional Court found No 116 / 2008 Coll.
The Constitutional Court found of 12 March 2008 on the application for annulment of certain provisions of Act No. 262 / 2006 Coll., Labour Code
Valid
The Constitutional Tribunal found
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14.04.2008
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116
FIND
The Constitutional Court
On behalf of the Republic
Article 2 (2) (a) of the Act, which states that "Article 2 (2) (a), Article 2 (2) (b), Article 2 (2), Article 2 (1), Article 2 (2), Article 2 (2), Article 3 (2), Article 3 (2), Article 2 (2), Article 3 (2), Article 3 (3), Article 3 (2), Article 3 (2), Article 3 (3), Article 2 (3), Article 2 (3), Article 2 (2), Article 2 (2), Article 3 (2), Article 2), Article 3 (3), Article 3 (2), Article 2), Article 3 (2), Article 3 (2), Article 2), Article 3, Article 3 (3 (2), Article 3 (2), Article 2), Article 3 (3 (2), Article 2), Article 3 (2), Article 3, Article 2, Article 3, Article 3, Article 3, Article 3, Article 3, Article 3, Article 3, Article 3, Article 3, Article 3, Article 3, Article 3, Article 3,
as follows:
I. Paragraph 2 (1) of the second, third and fifth sentences, § 4, § 18 in the words "48, 49," § 20 of the first sentence after the semicolon in the words "this does not apply in the case of a legal act leading to the creation of an employment relationship or to the conclusion of an agreement on work outside the employment relationship," § 24 (2) of the second sentence, § 278 (1) in the words "in the case of a trade union organisation," § 305 (1) (c) and § 321 (2) in the words "until the conclusion of a collective enterprise agreement", "§ 305 (1) in the first sentence of the words," in the law, "Article 305 (1) in the second sentence, § 321 (2) and (4) and § 322 (2) of the first sentence of the law.
II. The remainder is rejected.
Reasons
1. A group of Members, in accordance with Article 87 (1) (a) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"), proposed the abolition of the above mentioned provisions of Act No. 262 / 2006 Coll., the Labour Code (hereinafter referred to as the "New Labour Code" or "NZP"). The opening section of the comprehensive justification of the proposal states that it is directed against Act No. 262 / 2006 Coll., the Labour Code, which was adopted on 21 April 2006 and was announced on 7 June 2006 after the Chamber of Deputies of the Parliament of the Czech Republic first overvoted the negative resolution of the Senate of the Parliament of the Czech Republic and subsequently the return of the law by the President of the Republic. The new Labour Code was allegedly adopted without consensus between the social partners and between the government coalition. The proposal for a new Labour Code has been criticised from the outset, according to the applicants. The unconstitutional nature of some provisions has already been pointed out during the preparation and discussion of the Government's proposal for a new Labour Code. These reservations were also reflected to some extent in the opinion of the Legislative Council of the Government of the Czech Republic on the draft new Labour Code.
2. In the opinion of the appellants, the new Labour Code must be assessed both in terms of its constitutionality and in the light of the reasons which led to the need for a new regulation of employment relations. The applicants stressed that the need for a new adjustment was undoubted and was triggered by a change in the situation and needs of the company. This new regulation was intended to bring liberalisation in these relations, as well as to reduce the legal-based significant imbalance (asymmetry) between labour-law actors. The old legislation was allegedly no longer in line with social needs, since it was also of origin during the totalitarian regime; its residues, which remain until now, should not be in a democratic rule of law. The applicants argued that since State interference must always respect the principle of a fair balance between the general interest of society and the protection of the fundamental rights of the individual and thus reflect changes in society, the new Labour Code should have removed the currently unfounded significant interference in the Constitution for Guaranteed Rights and Freedoms. In view of the changes in the needs of the company and the general interests which were intended to eliminate the unduly surviving cognency of labour law and the normalisation of all areas of labour law, as well as the objectively unjustifiable advantages of workers and trade unions vis-à-vis the employer, the appellants therefore consider: the new legislation governing the position of employers and employees, the position of trade unions, the position of trade unions, the position of workers in general and the position of different employers or employees; Furthermore, the adequacy of the interference in property rights, not only of employers, and both the adequacy of the interference in the contractual freedom of the parties to each relationship and the extent of the contractual freedom, as well as the way in which the contractual freedom is regulated in the new Labour Code and its applicability, must be assessed, including in conjunction with the established concept of the Civil Code Delegation. However, from the point of view of the above, the appellants consider that a number of provisions of the new Labour Code - in view of the current social and economic situation - do not meet the needs of the above-mentioned changes (and thus legitimate expectations) and, without reasonable and objective justification, interfere with constitutionally guaranteed rights and freedoms, such as equality, the right of ownership linked to contractual freedom, the right to do business and the right of personal freedom of man.
3. The appellants also made specific constitutional arguments in the part of the proposal under point II. First, they contested the non-compliance of the contested provisions with the principle of the rule of law and the principle of contractual freedom and claimed that there had also been interference with property law (they expressly referred to Article 1 of the Constitution and Article 11 (1) of the Charter of Fundamental Rights and Freedoms).
4. The existing Labour Code, according to the appellants, was of a mandatory nature from the very beginning and was based on the principle "what is not allowed is forbidden." Such a nature of the regulation of employment relations was based on the time of its creation and on the different economic and social conditions of the pre-November period. The amendment of both economic and social conditions has brought about the need to amend the very nature of the Labour Code in the sense of liberalising labour relations and adapting the opposite principle of "what is not prohibited," as defined in Article 2 (4) of the Constitution and Article 2 (3) of the Charter of Fundamental Rights and Freedoms ("the Charter"). Thus, the company would legitimately expect (essentially) the introduction of contractual freedom in the field of labour law, where legislation should continue to have a cogent character only where there is a public interest and where the protection of workers is indeed necessary; in the rest, the agreement of the Contracting Parties would be possible by continuing to allow the conclusion of contracts other than the Labour Code. Although the new Labour Code at first sight appears to have changed in this respect, it is not the case, since the legislation contained in Paragraph 2 (1) of the new Labour Code is contradictory, unclear and uncertain and, as a result, inapplicable, but certainly not giving rise to declared contractual freedom. In doing so, the Constitutional Court itself has, in a number of its decisions, acknowledged the principle of the autonomy of the will and the freedom of contract of the constitutional legal dimension. In the opinion of the Constitutional Court, as further argued by the appellants [see the findings of sp. zn. Pl. ÚS 24 / 99 of 23 May 2000, Collection of finds and resolutions of the Constitutional Court (hereinafter referred to as "the Reports of the Decisions'), Volume 18, Found No. 73, p. 135, Declared under No. 167 / 2000 Coll.; sp. Zl. ÚS 5 / 01 of 16 October 2001, Collection of Decisions, Volume 24, Found No. 149, p. 79, Dec. No. 410 / 2001 Coll.; and Sp. Pl. ÚS 39 / 01 of 30 October 2002, Collection of Decisions, Volume 28, Found No. 135, p. 153, Decreed under No. 499 / 2002 Coll.], is also an essential part of the freedom of the Treaty, which is a derivative of the constitutional protection of the constitutional law under Article 11 (1). However, the Constitutional Court did not limit the freedom of the contractual will to the right of ownership, although in this context, its constitutional anchoring is the strongest. In its finding, sp. zn. I. ÚS 113 / 04 of 4 May 2004 (ECR 33, p. 63, p. 129), it stated that respect for the autonomous sphere of an individual is a general condition of the functioning of the rule of law within the meaning of Article 1 (1) of the Constitution and Article 2 (3) of the Charter. The individual's right to autonomy of the will is in line with the requirement of state power to recognise the autonomous manifestations of the will of individuals and their appropriate conduct. If such conduct does not interfere with the rights of third parties, state power (also implemented by law) must respect the expression of individuals only, possibly and discuss them. Interventions in the freedom of an individual may be resorted only in cases which are justified by a certain public interest if such intervention is proportionate (proportionate) to the objectives to be achieved. The new Labour Code, by its regulation of completely fundamental principles and principles, such as the regulation of contractual freedom, thus, in the appellants' view, completely contradicts the fundamental requirements of the rule of law, and its Paragraph 2 (1) brings the legislation not only to the wrong legal and factually wrong, but also to the unconstitutional.
5. The new Labour Code already states that it does not respect the autonomous sphere of the individual and interferes in fundamental rights and freedoms when determining its nature (Paragraph 2 (1)), which, as a result, is again mandatory as a result, without the public interest being justified and without respecting the principle of proportionality. There is also a breach of the principle (Article 2 (3) of the Charter), according to which an individual and his or her freedom of action in the rule of law always have priority over the state of law. In addition to the inadequacy and unjustifiability of interference with fundamental rights and freedoms, the legislation in question in the new Labour Code infringes the principle of familiarity between the legal situation and the predictability of the legal decision.
6. The appellants refer to the first sentence of Paragraph 2 (1), which states that "Rights or obligations in employment relations may be regulated by way of derogation from this law, unless that law expressly prohibits or implies that it is not possible to derogate from it." It is said that a certain degree of legal uncertainty is already causing the determination of the cognency of the rule of law that this is to be imported "from the nature of the provision ', without" this, if any, being expressly cogent' in the new Labour Code, being determined or directly resulting from its classification, which contains a clear order or prohibition. Where the cognency of a standard is specified by means of the wording "of the nature of the provision follows," the cognency or availability must be determined by interpretation, taking into account not only the related provisions of the interpreted legal provision or regulation. In such a case, however, the final confirmation of the accuracy of the interpretation shall be made either by one of the parties or even all of them and thus the validity of the action or provision in question shall be confirmed only subsequently, retroactively, by the judgment of the court. Since in such cases the Contracting Parties cannot have certainty as to the accuracy of their interpretation of the available nature of the standard in question until the final judgment of the Court of First Instance is final, the principle that the legal status and predictability of the legal decision can be established is undermined; This may appear to be contradictory not only to the principle of legal certainty (Article 1 (1) of the Constitution), but as a result it could be in conflict with the constitutional guarantee of the right to a fair trial (Article 36 (1) of the Charter), since one of its aspects is precisely the postulate of at least the minimum degree of predictability of the judgment (I. ÚS 654 / 03, ECR 32, p. 27, p. 255). However, this is not - in the appellants' view - a single and most fundamental problem in terms of legal certainty, and the problem of legal certainty is not exhausted. The legal familiarity and legal certainty of such an essential provision, which defines the nature of the regulation (in terms of availability or cognicity), is denied by a number of other facts which, as a consequence, result in this legal standard not complying with the requirement of "predictability ', since it is only predictable if it is formulated sufficiently precisely to enable each person, if necessary with the help of expert advisers, to adapt his behaviour (see the ECHR Decision: Malone against the United Kingdom; the decision of Amann against Switzerland; Rotaru against Romania; Gorzelik and others against Poland). In the opinion of the appellants, in the case of the legislation of the new Labour Code, not only is" any "person not able to" anticipate "what the legislation provides, but also" expert advisers "will not reach a clear conclusion. They also recalled that the Constitutional Court consistently recalls the link between the principle of predictability of the consequences of the rule of law and the principles of the rule of law (cf. Cf. Cf. Pl. ÚS 6 / 2000, Collection of Decisions, Volume 21, Found No 22, p. 195, published under No 77 / 2001 Coll.). In other finds sp. zn. I. ÚS 337 / 99 (Reports of decisions, volume 20, finding 170, p. 205) and sp. zn. IV. ÚS 34 / 97 (Reports of decisions, volume 8, finding No 49, p. 11), it is stated that" The Constitutional Court shares the view of our legal theory that one of the fundamental characteristics and assumptions of the rule of law and legal certainty is such an arrangement of a state in which everyone, natural person and legal person can have trust in law. The first condition of certainty in the area of application of law is the familiarity of the legal standard, or the familiarity of the legal situation and the predictability of the legal decision. "
7. According to the proposal for a presumption of the familiarity of legal status and legal certainty, the new Labour Code further distorts, in its Section 2 (1), the subsequent combination of other non-corresponding definitions of the cogenality / disposition of the legal standards and the character of the new Labour Code, as well as their indefinite and incomprehensible definitions. The new Labour Code does not end at all (Paragraph 2 (1), first sentence) in the definition of cogent standards, and also in Paragraph 2 (1) expressly states that "Rights or obligations in employment relations cannot be regulated by way of derogation from this law in the cases referred to in Paragraph 363 (2). '; it therefore states that it is not possible to derogate from the provisions expressly specified here (equivalent to the commercial code). This is in line with the principle that it is possible to derogate from all provisions of the new Labour Code except for the explicitly specified paragraphs, but this refers to the first sentence of Paragraph 2 (1). The question of interpretation ambiguity is whether the first sentence of the last sentence of Paragraph 2 (1) is denied and therefore meaningless, or whether these should be interpreted alongside each other.
8. The appellants state that the new Labour Code does not, however, end here and further states in the third and fourth sentences of Paragraph 2 (1) that "Departure is also not possible from the provisions imposing obligations, but that is not the case if it is a departure for the benefit of the employee. However, derogations from the provisions laid down in Article 363 (1) which incorporate the provisions of the European Communities are not possible, as far as the derogation is concerned for the benefit of the staff member. 'The provisions in question are alleged to raise further doubts in relation to the two above mentioned (the new labour code already used) ways of defining cogenality. It is, then, highly problematic that the definition" that is not the case if it is a departure for the benefit of the employee. "Whether this is a' departure for the benefit of an employee 'is absolutely indistinguishable, because it always depends on the point of view, and the views of employers and trade unions will always vary, even in a situation where the employee and the employer have agreed to and agree with the latter. In the present case, therefore, the familiarity of the legal standard and the predictability of the legal decision is impossible, which prevents the participants in labour relations from anticipating the consequences of their actions and adapting their behaviour.
9. According to the appellants, the whole of the incomprehensible, indefinite and interconnected arrangements contained in Paragraph 2 (1) were concluded by further defining the cogenality of the provisions of the new Labour Code, namely the completely innovative and unconventional concept of a delegation for the binding of civil and labour law. Paragraph 2 (1) of the second sentence states that "Departure is no longer possible from the regulation of participants in employment relations, from provisions which refer to the application of the Civil Code and, unless otherwise provided for in that law, to compensation for damages. 'It follows from the provisions of Paragraph 4 that the Civil Code (hereinafter referred to as the" IP') applies to employment relations under this Act only if that law expressly provides for it. The cogent regulation of the new Labour Code in custody of the delegation of the Civil Code causes further interpretative problems, as the cogent provisions of the new Labour Code refer, without the possibility of deviating, to the disposing provisions of the Civil Code. The new Labour Code then specifies the provisions of the Civil Code which apply to employment relations, in particular in Sections 326 and 18. Thus, the use of the concept of delegation in conjunction with several ways of defining the availability and coherence of the provisions of the new Labour Code resulted, in the appellants' view, in legislation not only to be factually incorrect, but also to the senseless, incomprehensible and inapplicability of a number of provisions of the new Labour Code. First of all, it should be pointed out that it follows from the (now alone) provision under consideration that any regulation, any legal institution or contract type contained in the Civil Code cannot be used unless the new Labour Code explicitly refers to them. In such a situation, the content and importance of the provisions of Paragraph 2 (1), which seek to defend in the new Labour Code the dispositive nature of the Code, is completely lost, since by way of derogation, nothing other than that contained in the new Labour Code or in the arrangements expressly referred to by the new Labour Code can be agreed. The concept of a delegation governed by the new Labour Code constitutes a ban on the modification or application of all legal provisions not contained in the new Labour Code or in the provisions to which it refers and therefore does not give any scope for the contractual freedom of participants in labour relations. Moreover, in conjunction with the other prohibitions, the concept of delegation (enshrined in Section 4 and the subsequent provisions of the NZP) leads to the complete cotionality of the new Labour Code as a whole; This does not correspond to the individual provisions (separately), nor to the declared intention of the creators of the new Labour Code, nor to the legitimate expectations of society, nor even to the public interest and social needs. Thus, the new Labour Code does not fulfil its declared disposition or formal character. However, this is not even filled with content in the new Labour Code. It is clear from the provisions of Paragraph 2 (1) in conjunction with the remaining provisions that the declared disposition of nature, which was to be adapted in Paragraph 2 (1) of the NZP, is merely "apparent 'and can even be said to be" pretend', since the contractual freedom granted under Article 11 (1) of the Charter cannot be modified and enforced only by being verbally declared in one of the provisions of the law, but must also be ensured and allowed through further legislation.
10. As a result of the above-mentioned regulation, in the appellants' view, the requirement of legal certainty and the requirement of so-called quality of law, as defined by the European Court of Human Rights, as well as legitimate expectations, is undermined. The provisions in question therefore conflict with the constitutional guarantee of the rule of law in Article 1 (1) of the Constitution; At the same time, this regulation unjustifiably also interferes with contractual freedom and, in conjunction with that, with the ownership of the participants in employment relations. The new Labour Code is said to be still trying, perhaps even more than ever, to normalise, if possible, all areas of "labour law" life; However, such an effort, as the Constitutional Court has already stated in the judgment in page II of the ECR 192 / 95 (Reports of Decisions, Volume 4, Found No 73, p. 197), is the company's own totalitarization. The democratic rule of law is not based on legislation that normalizes all areas of life, but on legislation that defines only the basic structure under which free activities are carried out.
11. The new Labour Code, as amended by the concept of the delegation of the Civil Code, also creates legal uncertainty and instability in the sense that, at the time of the adoption of the new Civil Code, there is a need for fundamental amendments to the new Labour Code. Moreover, the concept of a delegation brings considerable application problems, contradicts the principle of so-called quality of law and denies trust in law. These may arise as a result of the parallel existence of two otherwise unbound and uncorresponding provisions of the new Labour Code and the Civil Code, which must be applied simultaneously (not in a subsidiary manner) as a result of the (mandatory) legacy of the new Labour Code. Even the situation may arise that, without the application of other provisions or principles to which the new Labour Code does not explicitly refer (and should therefore not be applied), it will not be possible to interpret a situation and to reach a legal decision in a particular case. The regulation is then aimed at the fact that, if the courts were to decide, they would have to "leave" the wording of the relevant provisions of the new Labour Code and not look at them. However, such legislation does not correspond with legal certainty as one of the characteristics and assumptions of the rule of law.
12. For example, the application of § 573 of the Civil Code (consequences of the decommitment) or § 575 (impossibility of performance and its consequences) in relation to the employment relationship and other employment relationships, which also create significant legal uncertainty. In the case of Clause 573, first of all, it is a question of whether it is actually possible to derogate from this provision, even if from the point of view of the Civil Code it is a disposing provision; However, the question of the applicability of this Paragraph 573, which follows on from Paragraph 572 (2), arises in the employment relationship. It is alleged that significant legal uncertainty is triggered by the application of § 575 in the event of the impossibility of performance by one of the parties to the employment relationship, since according to the provisions of § 575, the contractual obligation in that case ceases to exist, by law, at the time when the impossibility of performance occurred. In addition to the objective impossibility and impossibility of subjective performance within the meaning of § 575 IP, it is regarded as an impossibility of performance. An example of the subjective impossibility of performance within the meaning of § 575 is the situation in which the permanently impaired health of the debtor prevents it from fulfilling an obligation of a purely personal nature. An example of a commitment of a purely personal nature is the performance of employment for employers. The question may then be how the termination of the obligation will be applied in both the described and subjective impossibility of performance (see Section 575 of the Civil Code through Section 326 of the new Labour Code) in the case of a closed employment relationship, and whether, therefore, the termination of the employment relationship can, without further ado, occur; if this were not the case, it is not clear for what reason, if the new Labour Code provides for an explicit reference to the provision of § 575 of the Civil Code. Legal uncertainty is further strengthened by the fact that the new Labour Code does not regulate the procedure in the event that the issue of termination between the parties is questionable; This is not, nor can it be, an argument that, therefore, the provision of Section 575 of the Civil Code (in conjunction with Section 326 of the Labour Code) should not be applied for employment, but rather demonstrates the inadequacy and impossibility of using the concept of the Civil Code delegation in labour law.
13. The appellants argue that, in view of the prohibition on "derogation 'contained in Section 2 (1), as well as the enshrined concept of" delegation', interpretative problems also arise in respect of the provision of Section 491 (2) of the Civil Code, to which the provision of Section 326 of the Labour Code also explicitly refers. According to that provision, the analogy of the Civil Code should be applied (i.e. for unnamed contracts the analogous application of those provisions of the Civil Code which regulate the binding legal relationship with the content and purpose closest to it), which, however, refers to the said principle of the "Delegation '(see Section 4) and the impossibility of applying provisions of the Civil Code other than to which the NZP is explicitly referred.
14. A huge interference in the legal certainty of the participants in the employment relationship, according to the applicants, is the newly established possibility of "withdrawal." The new Labour Code provides for the possibility of withdrawal from the contract for reasons laid down in the law or agreed in the contract in Article 18. Paragraph 18 expressly refers, inter alia, to the provision of Paragraph 48 of the Civil Code, which states that "A participant may withdraw from the contract if it is provided for in that Act or agreed by the parties." In addition, it should be pointed out that the legal effects of the cancellation of the contract are ex tunc, unless otherwise provided by law or otherwise agreed by the parties (cf. "the withdrawal of the contract is cancelled from the outset,..."). Paragraph 18, in conjunction with Article 48 of the Civil Code, therefore allows for the possibility of withdrawal from the contract in employment relations without any exceptions, which, according to the applicants, leads to the conclusion that the possibility of withdrawal can also be negotiated in the employment contract. The legal conclusion that according to the legislation of the new Labour Code can also be withdrawn from the employment contract is also evidenced by the fact that the new Labour Code itself no longer limits [as Section 245 (4) of Act No. 65 / 1965 Coll., the Labour Code, as amended, (hereinafter also referred to as "ZP ') the possibility of withdrawing from the employment contract only in the event that the employee did not enter into employment (§ 36 (2)). The new Labour Code thus regulates in Section 36 (2) only one (legal) reason for withdrawal from the employment contract, but does not preclude the negotiation of a withdrawal (for other reasons) or the use of other legal possibilities for withdrawal. Nor does the above legal conclusion refer to the provision of Paragraph 19 (2) of the new Labour Code, according to which the annulment of an act by a staff member cannot be prejudicial if it has not caused it exclusively because, in the case of the use of the legal option of withdrawal or the use of the legal option of withdrawal, none is given for the purposes of the annulment of the act.
15. As already mentioned, Paragraph 18 of the Labour Code, in conjunction with Section 48 of the Civil Code, is not the only provision of the new Labour Code which allows for withdrawal. The possibility of withdrawal from the contract is laid down in Section 49 of the OJ, to which Section 18 of the Labour Code expressly refers, and also in Section 497 of the OJ, Section 517 (1) of the OJ, Section 561 (2) of the OJ and Section 575 (3) of the OJ, to which the new Labour Code explicitly refers in its provision of § 326. In addition to the general provision of Paragraph 48 of the OJ, which provides for the possibility of withdrawal for legal reasons and provides for the possibility to negotiate withdrawal from the contract by the parties themselves, the explicit delegation contained in the new Labour Code (Sections 4 and 18 referring to the provisions of Sections 49 of the OJ and 326 of the NZP referring to the provisions of Section 497 of the OJ, Section 517 (1) of the OJ, Section 561 (2) of the Oz and Section 575 (3) of the OJ), legal reasons for withdrawal from contracts in employment relations are directly established. (For example, in the event that the employee fails to fulfil his or her debt towards the employer or within a reasonable period of time provided by the employer, the employer will have the right to withdraw from the employment contract under Section 326 of the Labour Code in conjunction with Section 517 (1) of the IP.) Legal uncertainty is then strengthened in particular in cases of legal withdrawal (as in cases where the parties do not use the legal option to agree otherwise on the effects of withdrawal), since then these employment conditions are abolished from the outset (by law, without any other agreement); Thus, for example, in the case of legal withdrawal from the employment contract, this employment contract will be terminated from the outset and will therefore be regarded as not being concluded, which is a significant interference with the legal certainty of the participants in the employment relationship, not only from the point of view of labour law but also from the point of view of public law, from the point of view of pension and social security. This is a significant intervention in the social security of the participants in this employment relationship. The withdrawal from an ex tunc employment contract could lead to serious legal consequences in relation to the social security system, as the social security system does not foresee this eventuality and is not in any way prepared for the possibility of such an adjustment in employment relations. According to the appellants, it is therefore crucial whether such an adjustment could, in its consequences, lead, for example, to call into question the creation of employees' rights (affected by the withdrawal from an ex tunc employment contract) on old-age pensions and thus also to intervene in the social security and social security rights guaranteed in Article 30 (1) of the Charter provided for by the relevant laws. The use of the agreed withdrawal from the employment contract for any reason or the use of the legally based reason for withdrawal from the ex tunc employment contract, which results in the fact that the employment relationship that was established and existed between the employer and the employee for a number of years is cancelled retroactively and is regarded as if it had never existed, thus constitutes a significant interference with the rule of law.
16. According to the applicants, the NZP is based on the principle of relative nullity of legal acts (provision of Section 20 of the new Labour Code). The new Labour Code does not provide a exhaustive list of cases of relative invalidity, which is therefore not generally based on absolute invalidity, with the determination of reasons resulting in the annulment of the relative but the relative nullity of legal acts is formulated in this provision in reverse, i.e. generally, in general with a narrow (and also illogical) definition of an exception in the context; It follows that, according to the legislation of the NZP (except for that exception - "in the case of a legal act aimed at creating an employment relationship or concluding a non-employment agreement '), all legal acts taken in the employment relationship are considered valid if the person affected by such an act would not have been able to obtain an invalidity of the legal act (cf." Where there is a reason for the annulment of a legal act, the act shall be deemed to be valid if the person affected by such an act does not permit its annulment.'; As a result, this means that a priori is a valid legal act and could only become invalid if the person affected by such an act so requests. At the same time, however, it should be pointed out that 'the person who caused it cannot be called'. The provision in question is not interpreted as meaning that it could not be called only by the person who caused it, in the sense of "exclusively," but by the person who caused it together with another person. In view of the nature of the contractual relations, it must then be concluded, in the view of the appellants, that any invalidity pursuant to the wording of Paragraph 20 is not possible for contracts (except for § 20 of the NZP provided for an exception, i.e. except for legal acts aimed at creating an employment relationship or concluding a non-employment agreement), since both (or all) of the Contracting Parties have caused its annulment by the nature of the case and therefore no one is legally entitled to invoke its invalidity here. The text of Paragraph 20 is intended to make all legal acts within the framework of labour law, even if invalid (for such reasons that they would be considered absolutely invalid in other private law relations) in the light of the new Labour Code, in many cases even without the possibility of calling for them, which is incompatible with all the principles of a democratic rule of law. This unconstitutionality is completed by the fact that the right to call for relative nullity is barred in a three-year limitation period which begins to run from the moment when the right could be exercised for the first time. On this point, the appellants add that, although the new Labour Code refers in its Section 18 to the provisions of the Civil Code, of which a number of provisions govern and establish the grounds for the nullity of the legal acts in question, i.e. from the point of view of the Civil Code absolute, it appears necessary, in the light of the wording of the provisions of Paragraph 20 ("the ground for nullity of the legal act is considered valid.... '), to conclude that only the grounds for nullity (" the grounds for nullity'), but not the grounds for nulvalidity of the act absolute but relative.
17. Similarly, it is said that the provisions of the NZP themselves declare a certain act invalid. The provision of Paragraph 19 (1), which states that "Invalid is a legal act whereby a staff member gives up his rights in advance." From the point of view of the provisions of Paragraph 20 of the NZP, this legal act (giving up its rights in advance) would be considered valid if the person concerned had not contacted it. The legal act in question would be an employee who, however, cannot rely on it because he is the one who caused the annulment of the act. In spite of the adjustment contained in Paragraph 19 (1), it can therefore be concluded that, if, under the new Labour Code, a staff member gives up his rights in advance, the legal act will always be valid, since there is no authorised person who could call for a relative invalidity; the staff member himself has caused the annulment and therefore cannot rely on it, and there is no one else who is affected by the act. According to the appellants, the fact that a staff member waives his rights in advance is always a valid legal act which cannot be challenged is clear evidence of interference with generally respected legal principles.
18. In view of the above, it is also said that there is a very dubious possibility of applying Section 41a of the Civil Code, which is referred to in Section 18, inter alia. The first condition for the application of this provision is that there is an invalid legal act, which in itself may seem impossible in view of the wording of Paragraph 20. Paragraph 41a of the OJ states in paragraph 1 that "If an invalid act is required for another legal act which is valid, it may be called if it is apparent from the circumstances that it expresses the will of the person in question." and in paragraph 2, "If a legal act is to be covered by a different act, that other act shall apply if the will of the participants and all its formalities are fulfilled. The annulment of such a legal act cannot be relied on against a participant who considered it unshrouded." Another legal ambiguity, however, raises this provision again from the perspective of the delegation of the Civil Code by the new Labour Code; This provision is contrary to the concept of a delegation and to the provision of Section 4 of the Labour Code, which states that other provisions contained in the Civil Code cannot be applied unless the Labour Code expressly states so (it would therefore not be possible to consider a legal act valid, even if it had the formalities of another valid legal act expressing the will of the persons acting or persons governed by the Civil Code, if the new Labour Code had not explicitly referred to those provisions).
19. According to the appellants, a number of provisions which are to be governed by the mandatory provisions of the NZP by commitments in employment relations are inapplicable, as they come across other mandatory provisions. For example, the reference - see Section 326 - to the provision of collateral (obligation) laid down in the Civil Code in Sections 544 (1) and (2) and 545 (contractual fine) refers to the provisions of Section 13 (2) (g) of the Labour Code, according to which "the employer may neither require nor negotiate a guarantee of an obligation in the employment relationship, except for a competitive clause and deductions from income from the employment relationship '. The argument that the reference to § 544 (1) and (2) and § 545 of the IP is related to the exception set out in § 13 (2) (g) would perhaps be considered, but this argument is not appropriate. Even if this were to be the case, there are only other application problems following the fact that the payment of the contractual fine has different legal consequences pursuant to § 310 (3) of the Labour Code and § 545 of the IP, to which § 326 refers. Whereas, according to Article 310 (3), the obligation of the staff member (which the staff member infringes, of which the contract fine is imposed) ceases to exist by the payment of the contract fine, Article 545 of the SGEI provides for a different consequence and provides that" the debtor is obliged to fulfil the obligation which was ensured by the contract fine, even after payment of the contract fine'. It should also be pointed out that the reference to the provision of collateral enshrined in the Civil Code in Sections 544 (1) and (2) and 545 also refers to the provisions of Section 13 (2) (f) of the NZP, according to which "an employer may not impose or require money penalties on employees for breach of the obligation arising from the employment relationship '. the provisions of Section 516 (3) of the IP and Section 572 (1) of the IP are also not applicable. In view of the principle already set out in Paragraph 13 (2) (f) of the NZP, there is also a unclear legal situation as regards the right of the employer to request, for example, interest on late payments which could arise under Paragraph 517 (2) of the IP, to which the NZP refers again explicitly.
20. The legislation of these merely examples of the provisions of the NZP concerning the adjustment of the nature (disposing / cogent) of the new Labour Code and the delegation of the Civil Code does not, according to the applicants, meet the presumption of legal certainty constituting the democratic rule of law, for which the Czech Republic is declared in Article 1 of the Constitution.
21. According to the appellants, a flagrant interference in property law (Article 11 of the Charter) is the principle laid down in Paragraph 13 (2) (g) of the NZP, according to which "the employer must neither demand nor negotiate an obligation in an employment relationship, except for a competitive clause and deductions from income from an employment relationship." There is no legitimate reason for an employee (as a debtor) to be protected in the event that he acts illegally. There is also no reason to favour the employee against other debtors who fail to fulfil their obligations. This is absolutely unjustifiable in a situation in which there is interference with the constitutionally guaranteed right of the employer (as a creditor) - its right of ownership. Paragraph 13 (2) (g) constitutes a significant intervention in the freedom of contract as such, as the possibility of concluding a commitment is denied by the de facto termination of the contract. Nor is there any reason why the ownership of an employer who does not have the opportunity to negotiate a commitment of its debtors should be protected less than the ownership of other persons who do not have such a restriction, as a result of which there is also interference with the constitutionally guaranteed principle of equality.
22. The appellants state that, by intervening in the rule of law (Article 1 (1) of the Constitution) and property law (Article 11 of the Charter), as well as in the right to do business (Article 26 of the Charter), there is also a ambiguous regulation of the transfer of rights and obligations from employment relationships in the event of the death of an employer who is a natural person, as provided for in Section 342 (1) of the new Labour Code. According to that provision, the death of the employer ceases to be an employment relationship, "except in cases of continuation of business under Paragraph 13 (1) of the Trade Act." However, it is not clear which "cases" of continuation of business are to be discussed if the provisions of Section 13 (1) of Act No. 455 / 1991 Coll., on business (Trade Act) only govern a single case, namely the continuation of business in the event of the death of an entrepreneur until the end of the proceedings for the consideration of the inheritance. In this context, a problem arises as to the legal status of the employment relationship until [Paragraph 13 (1) (a) to (d) of the Commercial Act] notifies the business office of continuing business, which may take up to three months after the employer's death. The legislation of the new Labour Code does not reflect this at all. According to the provisions of Paragraph 342 (1), the employment relationship is to be legally terminated, except in cases of continuation of business under Paragraph 13 (1) of the Commercial Act, but the continuation of the business may "decide" even after a few months. Again, such an arrangement is an intervention in the legal certainty of the participants, in particular of the employees, since it can be concluded from the provisions of Paragraph 342 (1) that the disappearance of employment relationships by the employer can only be ascertained retroactively, even over a relatively long period of time. This question is not even addressed by the Labour Code. Moreover, it is unclear what the legal consequences will be for the employment relationship of the termination of the succession procedure, as the continuation of the business after the termination of the succession procedure is governed by Paragraph 13 (4) of the Trade Code, to which the Labour Code does not refer. However, what will follow with regard to employment relations after the end of the succession procedure and what the legal status will be is no longer regulated by the NZP; There is therefore a vacuum in the legislation, which means not only interference with the legal certainty of the heir after the deceased employer, but particularly significant interference with the legal certainty of the employees themselves. Consequently, Article 342 (1) may also appear to be inapplicable.
23. According to the appellants, the principle of legal certainty and legal stability is also contradicted by the fact that the NZP was adopted quickly, without any link to the related legal standards (an example is also the absence of a so-called anti-discrimination law), which may result in an unstable and unpredictable legal environment in the field of labour law. These principles are also contradicted by the fact that the NZP was adopted despite the negative opinion of the Senate of the Parliament of the Czech Republic and the President of the Republic, without consensus between the government coalition, but in particular without agreement between the social partners, "users" of this standard, i.e. without the consensus of employers and employees or their representatives, i.e. trade unions. The words of the Vice-Prime Minister and Minister of Labour and Social Affairs in the Chamber of Deputies on 21 April 2006 on the subject of constitutional doubts in the draft (feeling) were said to have been alarmed: "I believe that, if the doubts raised have not been allayed, the legislation approved in the House of Commons is not ideal during the period of legiskation of the Labour Code," as well as the words of the same person after the conclusion of the general debate in the Senate as a statement by the appellant on the general debate (feeling): "As regards Article 24, the regulation approved in the House is not ideal, and I think that the matter will need to be discussed. The effectiveness of the code is up to 1 January 2007, there will definitely be room for it." These words also support the conclusion that the NZP failed to establish a stable regulation of labour law relations in the Czech Republic. It was therefore clear to the law promoter himself that a number of provisions of the NZP would need to be amended immediately after its adoption, but he nevertheless advocated its adoption as presented. Thus, the above legislation disputes the principle of legal certainty, the requirement of stability and the predictability of law, which are fundamental attributes of the rule of law (Article 1 (1) of the Constitution).
24. In the next part of the proposal (under point III), the alleged non-compliance of the NZP with Articles 1, 3 (1) of the Charter and 11 (1) of the Charter is contested, with the constitutional principle of equality and criticised for interference with property law. Inequality in the position of employer and trade union as regards the provisions of Sections 321 and 322 of the NZP is contested. According to the NZP, by conferring control powers on trade unions in conjunction with other obligations of the employer and in conjunction with the right of trade unions to require a binding order to the employer to remove defects in traffic on machinery and equipment, to prohibit further work in the event of an immediate threat to the life or health of workers, and to prohibit overtime and work at night (which would jeopardise the safety and health of workers), it also creates an unequal position between the employer and the trade unions involved in the involvement in the employer's property rights. Such an arrangement unjustifiably favours trade unions in collective bargaining in which they are to be in an equal position, since such negotiations also concern issues and sets of issues which the trade unions supervise and thus may benefit from a different relationship in this relationship. As a result of conferring such control powers on trade unions and the possibility to impose binding measures on employers for whom trade unions operate, there is an unequal position in contractual relations in collective bargaining; This may further interfere with the employer's property rights. The employer himself does not have an option, nor does he have a choice as to whether or not to enter into contractual relations with the trade union, or whether to choose a contract partner. Moreover, the exercise of the relevant competences conferred on the trade unions by Articles 321 and 322 does not comply with the principle of impartiality and objectivity. In applying the exclusion clause for bias (in checking in administrative proceedings), the relevant trade union organisation should have virtually no one to carry out this activity, since the relevant trade union representatives are all concerned by their membership of the trade union organisation, which is the "counterpart" of the employer in collective bargaining, because for this reason they have a "relationship to the case, possibly to the parties," and therefore also an interest in the outcome of the proceedings. The absence of objective and reasonable grounds for entrustment of the supervisory powers and the imposition of binding instructions and prohibitions on trade unions operating with the same employer (with which they are in a comparable position, this time in private relations) is also evidenced by the fact that the same control activity and the possibility of imposing the measures in question is also entrusted in the exercise of State authority to labour inspectors under Act No 251 / 2005 Coll., on the inspection of work. This is therefore a duplication and a "competitive exercise 'of the same activity. The law in question is therefore unconstitutional, since the law is based on the right of trade unions to employers, not on the general interest and protection of public values, in any way, without respecting the principle of proportionality (FPS 22 / 92, the Order of the Constitutional Court, No 11, p. 37, and the subsequent extensive and stable finding, with the already mentioned finding of the Constitutional Court; In addition, for example, the ECHR judgment in Abdulaziz, Cabales and Balkandali cases in 1985 and Lithgow case in 1986 or Inze case in 1987). In doing so, the aforementioned powers of trade unions go completely beyond the rules of the European Communities, which essentially only establishes the right of workers to" information and consultation'. In the field of occupational safety and health, the right of the European Communities is also limited to the right of workers to information and consultation, or to the submission of proposals to mitigate risks or eliminate sources of danger and to the right to contact the authorities responsible for occupational safety and health, but it does not confer on employees' representatives control powers with the possibility of taking measures binding on employers.
25. The proposal also refers to the inequality in the position of employees' representatives, namely trade unions and workers' councils - the provisions of § 278 (1), § 281 (1), § 282 (2), § 286 (2) and § 287 of the new Labour Code. This applies both to the creation and existence (including the disappearance) of these bodies and to the scope of their scope, which, as a result, also constitutes an unequal position among employees. In particular, the NZP's legislation does not allow workers' councils and trade unions to act alongside each other, although, as is apparent from comparison with other countries, the current existence of a staff council and a union organisation within one employer is not only possible but also common in other countries. Employees in the Czech Republic can, according to the provisions of § 281 (1) of the first sentence of the NZP, choose the advice of employees only from an employer with no trade union. In addition, the Staff Council shall cease by law on the date of the conclusion of a collective enterprise agreement - Paragraph 282 (1) (c). This regulation is also not based on European law, which does not require the demise of the staff council, or other employees' representatives, if a trade union organisation becomes involved with the employer. The legislation of the European Communities only refers to the obligations of employers towards "employees' representatives," without defining which body should represent employees in the cases in question. In addition to the already mentioned inequality in terms of the creation, existence and demise of the staff council, there is an unjustified inequality within the competence of the staff councils and trade unions. The employees' councils provide only the right to information and consultation in cases specified by the NZP, while trade unions have a wider range of rights to information and consultation than the employees' councils, or other employees' representatives (cf. Section 287). Thus, according to the applicants, the NZP legislation is also a constitutionally guaranteed coalition freedom (or negative coalition freedom).
26. As regards the scope of information and consultation, the provisions of the NZP are allegedly based on the legislation contained in the European Communities' regulations, in particular Directive 2002 / 14 / EC, which, however, regulates this area only in the framework and implies, in particular, the right to be informed and discussed in the areas of the economic situation of the undertaking, the development of employment and the organisation of work. Other labour-law directives provide for the right to information and consultation in connection with collective redundancies, transfers of businesses and safety and health at work. The specific manner and scope of the right to information and consultation within the framework thus defined shall then be left to national arrangements; However, it should be pointed out that those Directives provide for the obligation of information and consultation in general for "employees' representatives," without any distinction between them or merely indicating the possibility and justification of the different scope of that obligation vis-à-vis the various employees' representatives (trade unions x staff councils). Thus, the new Labour Code also establishes an unequal position between employees and prevents those workers who do not want to be organised and represented by trade unions from being represented by the Council of Employees (collectively), according to their own will and choices; In spite of this, the new Labour Code must be designated by representatives from trade unions. This compulsory representation of unorganized workers may also occur against their will, even if fewer employees were members of this trade union organisation than those who are not.
27. According to the appellants, by favouring trade unions as opposed to other workers' representatives (who are not organised by trade unions), indirect coercion to membership of trade unions is taking place, thereby violating another constitutionally guaranteed right, namely the right to join freely enshrined in Article 27 of the Charter. The freedom of association (so-called coalition freedom) includes not only the active right to join freely (such as in trade unions), but also the opposite aspect, that is to say, the right not to be a member of any association or from a particular association (trade unions); It is then the so-called negative freedom of association. Therefore, no one can be forced, directly or indirectly, to, for example, join unions. Thus, the NZP legislation unjustifiably establishes the unequal status of trade unions and workers' councils and violates the coalition freedom enshrined in Article 27 of the Charter, as well as by preventing those employees who do not wish to be organised and represented by trade unions from being represented by the employer (collectively), and are obliged (without choice) by representatives from trade unions.
28. In the other part, the appellants allegedly challenge the unequal position between the various trade unions and the advantages of some of the trade unions (Article 27 (2) of the Charter); this is a provision of Section 24 (2) of the Labour Code. This Regulation, in addition to interference with Articles 1 and 3 (1) of the Charter and the constitutionally established prohibition on the preferential treatment of certain trade unions (Article 27 (2) of the Charter), infringes the rule of law provided for in Article 1 (1) of the Constitution for lack of predictability, certainty and completeness. According to the provisions of Paragraph 24 (2) of the NZP, although the employer must collectively negotiate "with all trade union organisations' which" perform and deal with legal consequences for all employees jointly and in agreement, unless otherwise assessed between each other and the employer ', but if the "trade union organisations do not agree' on a joint approach, the employer may" conclude a collective agreement with the trade union organisation or more trade union organisations with the largest number of members'. This gives the possibility, therefore, that in the event of disagreement between a smaller trade union organisation (or smaller trade unions), for example, the draft collective agreement should be excluded from further collective bargaining and the collective agreement should be concluded with the majority trade unions. It is said that the very fact that Paragraph 24 (2) does not regulate the "pure 'principle of representativeness is problematic. It follows from the text of Paragraph 24 (2) that the NZP intends to use them only in the event that trade unions disagree on the procedure laid down in the first paragraph 24 (2), since according to Paragraph 24 (2), the employer is not to deal from the outset only with a representative trade union (or organisations) but with all trade unions that operate there. However, the legislation of the NZP does not at all regulate the conditions under which the employer" may conclude a collective agreement with a trade union organisation or several trade unions with the largest number of members of the employer', except that trade unions disagree at joint meetings. It is said that such an arrangement can result in the practical exclusion of "small" trade unions from collective bargaining and sometimes the exclusion of the most numerous trade unions. That provision does not imply that trade unions can no longer be considered to disagree on the common course of action or on the basis of which such evidence can be found. Legal certainty is already distorted because it is not clear when the principle of absolute pluralism should cease to apply and the principle of representativeness should be applied. At the same time, the NZP does not determine what procedure is required of the employer in a situation where it finds that trade unions are not cooperating.
29. According to the applicants, the above-mentioned NZP scheme (§ 24 (2)) is therefore indeterminate, it also causes the unpredictability of the consequences it will give rise to and does not allow the participants to adapt their behaviour to it. At the same time, it is said that such arrangements allow for the creation of situations where trade unions with the largest number of members have had no will and will, from the very beginning of collective bargaining, have no desire to act together and in agreement with other, numerous trade unions, in order to "disagree with them" in order to achieve the conclusion of a collective agreement separately with the employer in accordance with the procedure laid down in the second sentence of Paragraph 24 (2). On the one hand, such action by "large" trade unions and employers would be formally in line with the current text of the Labour Code, but on the other hand it would completely eliminate the principle of absolute pluralism of trade unions, which is likely to be the basis or starting point of collective bargaining under the new legislation. Paragraph 24 (2) of the first sentence would therefore become obsolent. If the legislator intends to produce such effects, then it is also a question of why it did not establish the principle of representativeness directly in the NZP, without any indication of further conditions.
30. However, the very definition of the principle of representativeness in Article 24 (2), according to the appellants, also points out that the provision of Article 24 (2) of the "representative" trade union organisation (or more "connected" trade unions) does not indeed seem representative. According to the regulation contained in Section 24 (2), one or more organisations with a relative majority are to be considered representative of the trade unions or trade unions (which results from the wording "trade unions or trade unions with the largest number of members of the employer ') and not with at least half (simple) the majority of the union employees (i.e. the so-called absolute majority). This is a very tough adjustment against other, not small, but smaller trade unions. Paragraph 24 (2) establishes, when applying the principle set out here, the possibility of creating situations where a trade union organisation which has only more members than others with an employer operating a trade union organisation (not an absolute number of members)" excludes "other trade unions from concluding a collective agreement, which may have an equal number of members in their sum. In such a case, it is difficult to speak of representativeness. The regulation in question may also lead to practical coercion of other trade unions, which would quantify the most powerful (but not absolute) trade union organisations, to the mutual action against this trade union organisation, which does not seem to be a matter of constitutional conformity. On the other hand, it is also considered that a trade union with the largest number of members of the employer will, in its conclusion and as a result, be" excluded "from collective bargaining if more" numerically smaller "trade unions working with the employer join together in collective bargaining and they will have together more members than the numerically strongest trade unions.
31. In the following part, the proposal defines itself against the alleged unequal position between employers and, therefore, contests the provisions of Sections 33 (3), 305 (1) and 306 (4) of the Labour Code. Paragraph 33 (3) provides for the different status of so-called "state 'and" non-state / private' employers when entering into employment with senior employees and the associated consequences, including the possibility / impossibility of withdrawing a senior employee from his post; This also creates the unequal position of the managers themselves working for these two "types' of employers. The legislation under appeal concerning both the creation and termination of employment, or merely the performance of duties, further - as compared to the existing legislation - more protects workers at the expense of the employer, in addition only, completely illogically and unjustifiably, in the so-called private sector, and enhances the unequal position of employers and employees. According to the provisions of Paragraph 33 (3) (note: in the contested text, i.e. before the entry into force of Act No. 362 / 2007 Coll. - more precisely, section XI., paragraph 164), the employment relationship can be based only on the appointment of" Heads of State Organisations, Heads of State Organisations, Directors of State Enterprises, Heads of State Enterprises, Heads of State Funds, if they are headed by an individual body, Heads of Contributory Organisations, Heads of Organisation Entities of the State, Directors of Organisations of State Organisations, Directors of State Enterprises, Directors of State Enterprises, Heads of State Funds, unless they provide otherwise '. Contrary to existing legislation (§ 27 (4)), when the employment relationship could have been set up for senior employees under the provisions of § 27 (5) of the ZP by appointment to any employer, not all employers but only employers of the so-called "state' will have this option; This also implies a subsequently differentiated legal position in the possibility of the employer's staff member to cease his duties (i.e. the possibility of withdrawing the staff member from his post and, where appropriate, the subsequent termination of his employment). In the present case, the possibility of appointment is not only given to employees of the so-called government, but also applies to employees of employers in the economic sphere (e.g. state enterprises), although they are also associated with the" state sphere '.
32. According to the appellants, there is no legitimate reason why the Institute of the "Appointed Head of Staff" can and should exist, with the possibility of withdrawing it under "State" employers, but no longer for "private" employers. The reason report on the NZP does not address the justification for this differentiation. From the point of view of "private 'employers, employers of the" state sphere' are favoured by the fact that workers in the so-called "appointed position 'can make a flexible withdrawal even in a situation where this employee has not broken his obligation to work, but does not perform his top function properly if his malpractice or decision-making" leads the employer to poor economic results.' Consequently, as a result of this adjustment, in the appellants' view, there is also interference in the employer's property rights protected by Article 11 of the Charter. may also mean limiting its competitiveness.
33. The appellants summarised that the NZP legislation completely unjustifiably establishes an unequal position between "state" and "private" employers (by favouring "state" employers), between "state" employees and "private" employers (by favouring "private" employers) and between employers and employees in the so-called private sphere by favouring employees. It even means another and more significant interference with the ownership of "private employers."
34. The applicants further state that the new Labour Code also establishes an unequal position between employers with trade unions and employers with non-trade unions. The fact that the employer does not have a trade union does not mean that such an employer has less obligation to "inform and discuss'. The new Labour Code also creates minor interference with the rights of ownership associated with trade unions' control activities and their ability to issue binding guidelines and bans against the employer in the case of employers. There is no objective reason for such an adjustment, although this entails more significant interference with the rights of one of the" groups' of employers, those with trade unions.
35. The differences in the position and intervention of employers' property rights, whether or not they operate by trade unions, relate to the provisions of Sections 305 (1) and 306 (4) of the new Labour Code. According to the NZP (§ 305), the employer can issue an internal regulation only if the trade union does not operate, except in the case of a collective agreement that the determination of wage or salary rights and other rights is transferred to the internal regulation. Contrary to the present regulation (Paragraph 21 of the ZP), the NZP has a restriction on the existence of internal wage or travel compensation rules, regardless of the existence of a collective agreement. According to the new regulation, however, the transfer of these rights to the internal regulation of the collective agreement is a condition. Paragraph 306 (4) (existing Paragraph 82 (3)) also limits the employer with whom the trade union organisation operates to issue an "internal 'document / regulation, as it provides that such employer may issue or amend the conditions of employment only with the prior written consent of the trade union organisation.
36. However, according to the appellants, there is no objective reason for the legislation to prohibit the issuing of internal rules for employers with a trade union organisation, or to divide the employer in this respect into those with a trade union organisation or not, as this contradicts constitutionally guaranteed equality and unduly limits the rights of ownership of the employer with which the trade union organisation operates. As regards the relationship between collective agreements and internal regulation with one employer, it can be said that, if the trade unions want the employees' claims not to be regulated by internal regulation, but by a collective agreement, then whether they agree, enforce it in the framework of collective bargaining and adjust the area or entitlement in the collective agreement. The current existence of an internal regulation and a collective agreement with one employer is not excluded by the law of the European Communities and is, on the contrary, common in many states. There is no reason why the new Labour Code should ban that fact and thus interfere with the constitutionally guaranteed rights of employers.
37. The provisions of Articles 305 (1) and 306 (4), as a result, interfere with the employer's property rights, which do not have (unlimited, free) the possibility of adjusting wage or salary rights and other rights in employment relationships from which the employee is entitled. This requires the consent of a trade union organisation which thus interferes with the employer's property rights (Article 11 of the Charter). The application of the contested scheme can then be considered very problematic in the case of a "corporate 'regulation in particular of employees' wage rights in a situation where, in the framework of collective bargaining, the collective agreement is not concluded and therefore it is not possible to transfer the adjustment of wage conditions to the internal regulation, which, as a result, also affects the interests of the employees themselves.
38. In the other part, the appellants contested, in particular, the alleged interference in the privacy and personal freedom of man; refer to Articles 7 (1), 8 (1) and 11 (1) of the Charter and Article 1 (1) of the Constitution. Paragraph 46 and Paragraph 61 (1) provide for the employer to discuss in advance with the trade union the transfer of employees to other jobs (Paragraph 46) or the termination or immediate termination of employment (Paragraph 61 (1)), including for non-members of the trade union. The appellants point out that the provisions in question unjustifiably interfere with the individual, constitutionally guaranteed rights of individual employees by requiring the employer to discuss the situation with the trade union in advance, even if the employee does not expressly wish to do so. In this case, there is an intervention into the privacy and personal freedom of a person-employee. Even if the legal interpretation is that the above provisions are available and that the derogation from the obligations laid down by the NZP is "for the benefit of the employee '(otherwise there would be a breach of the contractual freedom - Article 11 (1) of the Charter) and, therefore, that the employee may agree that he does not want the employer to discuss the matters set out in paragraphs 46 and 61 (1) with the trade union, the problem of incompleteness and insecurity of legislation is encountered in such a case. In fact, the NZP does not show when and how the staff member concerned could show his will in order not to discuss the facts relating to his person by the employer with the trade union. The ambiguity and subsequent incompleteness and uncertainty of the legislation could contradict the principle of predictability of the law and its certainty and clarity, which is a guarantee of the democratic concept of the rule of law. At the same time, according to the proposal, it is necessary to highlight other problems linked to the above-mentioned" disposing' interpretation, in particular, of the provisions of Paragraph 61 (1), since it is unrealistic to receive an employee's request to not discuss his resignation or to terminate his employment immediately by the trade union in advance, i.e. before the termination or termination of his employment. Moreover, even in this interpretation (based on the availability of the provisions in question), the concern is that his privacy and personal freedom should not be violated, to the employee himself.
39. The Constitutional Court also received a proposal from a group of Senators of the Parliament of the Czech Republic to abolish part of the provision of § 305 paragraph 1 of Act No. 262 / 2006 Coll., the Labour Code, which reads: "with which the trade union does not operate," part of the provision of § 322 paragraph 2 (a) worded "and, in the event of an immediate threat to the life or health of workers, prohibit further work" and provision of § 322 paragraph 2 (b) of this Act. Since the two proposals - both the above-mentioned proposal of a group of Members and this proposal of a group of senators - are in agreement with the provisions of the same law (although the proposal of a group of Members challenges more than one provision), the resolution of the Constitutional Court of 9 January 2007, sp. zl.
40. A group of senators essentially argues the following way.
41. The contested part of Paragraph 305 (1) of the NZP infringes the principle of equality in rights under Article 1 of the Constitution. It is alleged that this principle is infringed by the fact that employers with trade unions are excluded from issuing internal rules governing wage or salary rights and other rights in employment relations (Section 305 (1), first sentence). This creates an unequal position for employers according to whether or not they have a trade union. Contrary to the legislation in force, there is a restriction because, in terms of wage or travel compensation rules, these could also exist in addition to a collective agreement. According to the appellants, the constitutional principle of equality in rights is one of those fundamental human rights that establish the values of modern democratic societies. It is a legal-philosophical postulate, which is guaranteed by the prohibition of discrimination in a level of positive law. Equality is not a fixed category, as it undergoes development, which is particularly marked in the area of political and social rights. The appellants recalled that the Constitutional Court in a number of its decisions (e.g. the findings in cases referred to in sp. zn. Reports of decisions, Volume 4, Found No 74, p. 205 et seq., Declared under No. 6 / 1996 Coll.; sp. zn. Pl. ÚS 33 / 96 of 4.6.1997, Reports of decisions, Volume 8, Found No. 67, p. 163 et seq., Declared under No. 185 / 1997 Coll.) interpreted the content of the constitutional principle of equality. He identified in them the understanding of equality, as expressed by the Constitutional Court of the CSFR in its finding of 8 October 1992 sp. zn. Pl. ÚS 22 / 92 (published in the amount of 96 / 1992 Coll. and published under No 11 of the Reports of the resolutions and findings of the Constitutional Court of the CSFR). The Constitutional Court of the CSFR saw equality as a relative category which requires the removal of unjustified differences. The principle of equality in rights must therefore be understood in such a way that legal discrimination in access to certain rights must not be an expression of pleasure, but does not imply that any right must be granted to anyone. This conclusion is also based on the adaptation of Articles 1 to 4 of the Charter. Article 1 of the Charter, the infringement of which is expressly objected, cannot be interpreted in isolation from other general Articles 2 to 4 of the Charter, but must be understood as a single whole. It is clear from the adaptation of this general provision that the basic protected values listed in Article 3 of the Charter did not devise the Constitution as absolute. The same reflects the provisions of Article 4 of the Charter, which directly foresees the existence of statutory obligations and restrictions, but also Article 2 (3) of the Charter, which foresees the possibility of imposing certain obligations or restrictions. Also, international human rights instruments and many decisions of international control bodies are based on the fact that not every unequal treatment of different entities can be classified as a breach of the principle of equality, i.e. as unlawful discrimination against one entity compared to another. In order for a breach to occur, certain conditions must be met: for example, that different entities which are in the same or comparable situation are treated differently without objective and reasonable grounds for different approaches being applied.
42. The regulation contained in Paragraph 305 (1) of the new Labour Code creates, according to the applicants, an inequality between employers. This is a discrimination against employers according to whether they have a trade union, since there are no objective and reasonable reasons for different treatment of employers. The principle of proportionality also has a key place here. It is said that it is necessary to ask the question whether the problem is greater between the inequality of employers or the inequality of workers, whether it is arbitrary discrimination or measures to offset the unequal position of workers, depending on where the trade union is operating. It is also necessary to assess whether the new regulation is a proportionate means, whether there is indeed a risk of restricting trade union rights (collective agreements) by internal rules, or whether there is no reasonable reason for such concerns (in the protection of workers) and merely an attempt by the legislator to strengthen trade union status.
43. Paragraph 322 (2) is proposed for annulment in the contested parts as it lays down the right of trade unions to prohibit work in the event of danger from the point of view of health and safety or the right to prohibit (note: in the event of such danger) overtime or work at night. They say that basically means state administration. Control of compliance and decision-making on the prohibition of overtime work and the issuing of binding instructions for the removal of defects is entrusted to trade unions, i.e. legal persons under private law. The new Labour Code is not said to be sufficiently specified in the legal relations and procedures in the exercise of this authorisation, i.e. the lack of rules for carrying out such an activity, as foreseen in Article 2 (3) of the Constitution. Act No. 552 / 1991 Coll., on State Control, cannot be applied to this type of control activity because it applies only to administrative authorities and does not foresee state control by trade unions. It is not specified which persons have or can carry out control activities for trade unions; whether the members of the trade union organisation or its staff or other trade unions of the authorised persons and what qualification conditions for carrying out the control activities are to be met, if, as in this case, by the professional activities. The NZP also lacks sufficient adjustment in case of collision. If the control activity carried out by trade unions (including the imposition of mandatory instructions and bans of work) is the exercise of the State's delegated powers, this means that the procedure of trade unions pursuant to § 322 (2) will be governed by the administrative rules (see § 1 (1) of Act No. 500 / 2004 Coll., the administrative rules, as amended). However, the arrangements set out in the NZP are not clear with regard to the review procedure for these decisions if the appeal body is the labour inspection body or other specific body referred to in Section 322 (3) of the new Labour Code. As regards the actual exercise of these competences of the trade union organisation, it is also highly questionable whether the trade union authorities' practice will be sufficiently objective and impartial, as the trade union essentially stands on the part of the employees, while controlling the employer's activities with which it operates and, where appropriate, conducting administrative proceedings with it. In applying the exclusion clause for bias (both in the control and in the administrative procedure), it would appear that, at the level of the relevant trade union, there would be virtually no one to carry out this activity. In view of the above and for non-compliance with Article 2 The Constitution proposes to abolish the provisions of Paragraph 322 (2) of the new Labour Code.
44. The Constitutional Court sent a motion to initiate proceedings in accordance with the provisions of Section 69 of the Law on the Constitutional Court to the parties - Chamber of Deputies and Senate of the Parliament of the Czech Republic. It also requested the opinion of the Ministry of Labour and Social Affairs, the Confederation of Industry and Transport of the Czech Republic, the Czech Moravian Confederation of Trade Unions and the Confederation of Employers and Business Unions of the Czech Republic (§ 48 paragraph 2, § 49 paragraph 1 of Act No. 182 / 1993 Coll., on the Constitutional Court). Apart from the Ministry of Labour and Social Affairs, which only briefly stated that it was in agreement with the views set out in the motion of a group of Members, the other institutions provided the Constitutional Court with extensive observations or opinions. The legal representative of the group of Members as applicants in the proceedings before the Constitutional Court subsequently requested copies of the observations and opinions in question, in which he was granted. In its subsequent submissions, he stated that the applicants considered it necessary to respond to the opinion of the Czech-Moravian Confederation of Trade Unions and sent a comprehensive reply to the Constitutional Court, which, according to its content, can be considered to some extent as a supplement to the application for the initiation of proceedings and to the constitutional arguments in the case at hand (see below).
45. In the Chamber of Deputies on the proposal of a group of Members, it is stated that the Labour Code was submitted to the Chamber of Deputies by the Government, which stated in the explanatory report on the draft law that the proposal is based on the Constitution of the Czech Republic and the Charter of Fundamental Rights and Freedoms. At the same time, the government assured that, when preparing NZP, it made sure that it fit organically into the legal order of the Czech Republic. It also guaranteed that the NZP was in compliance with European Community law. During the discussions in the Chamber of Deputies, the draft Labour Code was also addressed by the Constitutional Committee, which adopted Resolution No 234 at its 78th meeting on 19 January 2006, recommending the Chamber of Deputies to approve the government bill. It is said that doubts about the constitutionality of the control of trade unions on safety and health at work have been removed during the negotiations. A "change 'was adopted in the sense that the trade unions are not entitled to interfere directly with the employer's activities, but are entitled to submit requests to remedy the deficiencies identified. As regards the unequal position between the various trade unions and the resolution of a situation where it is not possible to conclude a contract because it is blocked by a trade union against the will of other organisations working with employers, the Chamber of Deputies, in accordance with the international conventions, in particular the International Labour Organisation Convention 98 on the Implementation of the Principles of the Right to Organise and Collective Negotiations and the International Labour Organisation Recommendation 163 (1981) on Collective Negotiations, has opted for the definition of a majority representative trade union organisation. During the discussion of the bill by the Chamber of Deputies, the issue of the contractual freedom of participants in labour relations was also discussed, which is also referred to by the petitioners. The Chamber of Deputies was aware that one of the fundamental objectives of labour law is to perform a protective function in relation to employees. In employment, employees are guaranteed a relatively firm position by the mandatory provisions of the Labour Code, which provides them with adequate working conditions, a limited period of work in relative rest, compensation and protection against unilateral termination of employment. The new Labour Code in this respect - as stated - complies with international standards resulting from international legal documents, in particular from the relevant conventions of the International Labour Organisation. In addition, it follows from the explanatory memorandum of the Labour Code that the NZP strengthens the principle of liberalisation by extending the contractual freedom of participants in labour relations, while respecting the principle of equal treatment; by mandatory standards, employees are guaranteed fundamental rights and working conditions; in other matters, there is a scope for contractual arrangements in particular. In order to adopt the legislation in question, the Chamber of Deputies stated that the draft Labour Code was approved by the Chamber of Deputies on 8 February 2006, when 104 Members voted in favour of it out of 182 Members present with 92 votes. The Senate rejected the draft Labour Code on 29 March 2006. On 21 April 2006, the Chamber of Deputies re-approved the draft Labour Code, as 106 Members of the 178 present. The President of the Republic has not signed the Labour Code. On 23 May 2006, the Chamber of Deputies insisted on the revised Labour Code, as 107 Members voted for it out of 179. Thus the Labour Code was adopted after a properly implemented legislative process, signed by the relevant constitutional authorities and declared in the Collection of Laws as Act No. 262 / 2006 Coll. In this situation, the Chamber of Deputies says that it is impossible to express the opinion that the legislature acted in the belief that the adopted law is in accordance with the constitutional order and the legal order of the Czech Republic.
46. In particular, the Chamber of Deputies on the proposal of a group of Senators states that, according to the Labour Code, internal legislation is intended, inter alia, for the employer to adjust the labour rights of employees, which can be regulated by collective agreements under labour law. The earlier legal situation in force until 31 December 2006 allowed such an internal regulation to be issued only to an employer with no trade union. (Otherwise, such a rule would be invalid.) The internal regulation may be issued even now by an employer with whom the trade union does not operate. However, contrary to the previous legal situation, the NZP also allows the employer with whom the trade union is active, if this is passed on by a collective agreement. However, the employer cannot continue to issue an internal regulation itself in a situation in which the trade union organisation operates, but a collective agreement has not been concluded. However, the fact that this employer cannot issue an internal regulation while an employer with which a trade union organisation does not operate can issue such an internal regulation, cannot be seen as an unequal position of employers, but must be seen as a result of strategy and tactics in collective bargaining by one or both parties. Furthermore, the appellants argued that Article 322 (2) was unconstitutional as it enshrined the right of trade unions in particular to prohibit work. It is stated in the statement that although a change was proposed in the course of the debate of the bill in the Chamber of Deputies, the trade unions are not entitled to interfere directly with the employer's activities and that they only have the right to submit requests for the removal of detected defects; However, it prevailed that, in view of the immediate threat to the life or health of workers, the trade union organisation should be left with the right to prohibit further work, with the obligation to review measures by the labour inspection body at the request of the employer.
47. The Senate of the Parliament of the Czech Republic stated in its observations on the proposal of a group of Members that the draft Labour Code had already been paid attention at the time of its consideration in the Government. On 15 September 2005, the Senate decided to hold the 8th Senate Public Hearing on the subject of "New Regulation of Labour Law," in order to familiarise itself with the arguments of all interested parties, to focus on them and to prepare for the best possible discussion of the draft Labour Code in the Senate bodies. At this public hearing, held on 4 October 2005, representatives of the Ministry of Labour and Social Affairs, employers, trade unions, the Department of Labour Law and the judiciary were invited. 104 participants and 18 senators participated. Very contradictory views were presented on the proposed labour code.
48. On the part of employers' representatives, reservations were raised on the draft Labour Code in roughly the following directions:
- the preparation of the draft Labour Code was not standard, since the initialled processing was undertaken without comment on the draft substantive intention of the NZP and therefore no agreement was reached on the basic approaches of the preparation of the new Labour Code
- even after 15 years of discussion and preparation, the proposed regulation does not meet the expectations of a fundamental and conceptually new regulation, simple and understandable, which only lays down fundamental rights and obligations for employers and employees following relevant international documents
- the draft labour code largely merely amends existing legislation, in many cases the original text is almost literally taken over and as a result principles based on different economic and social conditions continue to be preserved
- the proposal does not fulfil the requirement for comprehensive and separate legislation, as it is processed by the method of delegation in relation to some 130 provisions of the current Civil Code, which should be applied in the regulation of employment relations, leading to the necessary changes in the adoption of the new Civil Code
- the proposed labour code is said to be a disposing standard, but in addition to the numerous bans, the user does not offer much in the form of genuinely disposing standards; The Labour Code does not take into account that the majority of employers are small and medium-sized companies and if they have to fulfil all the obligations that are newly provided for them, they will have major problems with it, and this will make it difficult for them to do business.
- the requirement for a fundamental reassessment of the existing status of employees' representatives, trade unions and workers' councils has not been met. The current legal situation - as regards trade unions - is said to be strengthened regardless of their actual position, particularly in the context of strengthening the contractual principle and negotiating further working conditions in collective agreements. Employers continue to require certain criteria to be laid down, of which the majority will of a collective of employees, for which the trade unions will be a partner of the employer
- the proposal submitted is unconstitutional in the opinion of experts, including the Legislative Council of the Government. The issue of constitutionality is linked to the position of trade unions; it is a question of the representativeness of trade unions, since a small representative trade union organisation is able to prevent the owner from implementing its ownership rights. It leaves the representation of trade unions against non-members not only in the field of collective bargaining, in the area of information and discussion of general issues, but also in individual matters, in the case of dismissal, immediate termination of employment, transfer to another job, even against their will. The control authority of trade unions is considered unconstitutional, especially as regards the possibility of prohibiting overtime and night work.
49. Against this background, the Ministry of Labour and Social Affairs and Trade Unions argued that
- the preparation of the draft Labour Code was preceded by an analysis of the existing legislation, there was a substantive intention, although not approved by the government, based on the government's programming statement
- in the preparation of the proposal, there was a situation where representatives of employers' associations from the outset opposed the draft Labour Code as a whole, refused to participate in its preparation, requested a cessation of work and activity only just before submitting the bill to the Government and during its discussions with the Government. Nevertheless, the petitioner showed kindness and the numerous comments of the employers' associations were granted when discussing the bill in the government.
- the draft Labour Code unambiguously liberates contractual freedom and creates a more liberal environment in labour relations than the existing Labour Code
- there were no clear views on the amendment to the Civil Code in terms of the principle of delegation or subsidiarity, even in the Legislative Council of the Government; There was probably a majority opinion on the principle of subsidiarity, but there were also views on the more appropriate application of the principle of delegation, which was elected by the petitioner
- on the issue of greater liberalisation of the proposed regulation, it had to be assumed that certain standards which the State is obliged to guarantee from the point of view of EU membership, but also constitutional principles, international conventions, etc., must be ensured in the law, since the second possible and most widespread method of collective agreements in Europe is still only possible in the range of 30%, because only about 30% of employees are "covered" by collective agreements, whereas in Western Europe it is 80 - 90% of employees
- the draft Labour Code does not strengthen the current position of trade unions, their position remains at the current level
- the views on the unconstitutional nature of the regulation, according to which trade unions also act as non-members, were not clearly expressed in the opinion of the Legislative Council of the Government that it was unconstitutional, it was recommended to consider redrafting the relevant provisions. It is a principle common within the EU
- the regulation of the control authority of trade unions and the authorisation to prohibit overtime or night work in certain cases (§ 321, 322 of the draft labour code) is included in the existing labour code; This regulation has not yet been called into question from the point of view of the inconstitutionality now being proposed. This regulation of trade union authorisations also took the view that it was an authorisation based, inter alia, on international conventions on the status of trade unions and on the exercise of the rights that trade unions have internationally recognised for the protection and representation of workers.
50. According to the Senate, the above reservations and arguments against them were basically equally heard in the debate on the draft Labour Code (approved by the Chamber of Deputies) in the relevant Senate committees and the Senate plenary. Knowing that it is an amendment that directly affects several million citizens, the view that the bill referred to by the Chamber of Deputies does not comply with the fundamental principles of the rule of law, which include the principle of predictability and clarity; some of its provisions may reasonably be considered unconstitutional. Since there were no reservations that could be addressed in all their aspects by possible amendments in the time limits in which the draft laws are discussed in the Senate, the draft Labour Code, as referred to by the Chamber of Deputies, was rejected. It is quite clear from the above that the Senate's very majority view of the problematic provisions of the proposed Labour Code was generally identical to what is expressed in the proposal to repeal certain provisions of Act No. 262 / 2006 Coll., the Labour Code, submitted by a group of Members.
51. In the Senate's observations on the motion of a group of Senators to abolish certain provisions of the Labour Code, it only refers to the observations that the Senate has already sent on the proposal of a group of Members to repeal certain provisions of the Labour Code.
52. The Association of Industry and Transport of the Czech Republic notes in its opinion that the content of the proposed proposal for the abolition of the Labour Code is in principle identical to its views already applied at the time of preparation and when discussing the draft law. Given the overall problematic content of the Labour Code, it considers the list of its provisions proposed for annulment to be minimal. The Association of Industry and Transport paid maximum attention to the preparation of the NZP proposal in anticipation of the preparation of a bill that meets the requirements of the 21st century and fully reflects economic and social changes in our country. On the other hand, a draft law was passed, which does not reflect the social need for a fundamentally new conceptual regulation, since almost literally the existing legislation was incorporated into its content without significant modernisation. Legal principles based on completely different economic and social conditions of the 1960s are still preserved in the NZP. As regards the preparation of the NZP proposal, it can be described as absolutely non-standard according to the opinion, in particular because it was a draft code-type law. The promoter said that there was no analysis or evaluation of existing legislation, there was no expert discussion, including an assessment of the possibility of using foreign experience. In the preparation of the draft initialled version of the NZP, the approved substantive intention of the Labour Code was not used, as the comments on it were completely omitted. The consensus of the social partners over the basic approaches and the concept of the new regulation was therefore not reached. Furthermore, as part of the preparation of the NZP, the situation was not addressed at all when one of the social partners (the representative of employers, represented in the Council of the Economic and Social Agreement of the Czech Republic) did not fundamentally agree with the draft law in question, and yet such a proposal was further presented and discussed without reaching social reconciliation. Such a process is considered by the Union of Industry and Transport to be completely unprecedented and unconformal with the Constitution. The Association of Industry and Transport, both during the preparation of the new Labour Code and at the various stages of the legislative process, applied requirements for fundamentally new, simple and understandable legislation, which would lay down only fundamental rights and obligations for employers and employees following the legal order of the Czech Republic, to relevant international documents, enabling a high level of agreement between the employer and employee to meet the requirements of flexibility in the performance of the job. Through his representatives he also attended many meetings in the legislative bodies of the Government, in the committees of the Chamber of Deputies and Senate of the Parliament of the Czech Republic, including the 8th public hearing of the Senate on the topic "New Regulation of Labour Law (Reditioning of the Labour Code)." Its fundamental dissenting positions with the content of the NZP proposal, including doubts about the constitutional consistency of the proposal, were presented at these meetings. The basis for these comments was the substantive argument of the leading experts in the labour field, including members of the Legislative Council of the Government. In the final decision on the content of the NZP, however, only political aspects were decisive and not substantive and professional.
53. The Association of Industry and Transport considers it one of the fundamental problems of the entire NZP in particular that it has failed to effectively fulfil the basic constitutional principle referred to in Article 2 (4) of the Constitution of the Czech Republic and Article 2 (3) The Charter of Fundamental Rights and Freedoms, i.e. that everyone can do what is not forbidden by law and no one must be forced to do what the law does not impose, i.e. 'what is not prohibited is allowed'. This constitutional principle was to be fully reflected in the content of the NZP, as stated in the explanatory report on the government draft of this law, and the principle of liberalisation was to be strengthened and contractual freedom extended. However, the stated ambition does not fulfil the NZP, because in 396 paragraphs, some 450 obligations are imposed on one of the participants in employment relations, i.e. the employer, while the legal status of the other party and its representatives, trade unions, is asymmetrically strengthened. Similarly, the declared liberalisation and extension of the contractual freedom of the parties to labour relations are essentially unfeasible in the light of the provisions of Paragraph 2 (1) of the Law in question, since the law does not allow for the declared contractual freedom by directly providing for a ban on derogation for almost half of the provisions. In Article 2 (1), while the possibility of deviating from the Labour Code is also permitted in cases where "the nature of the provision does not imply that it is not possible to derogate from it ', this legislation is almost inapplicable to the application practice because it is indefinite and incomprehensible. In particular, the Association of Industry and Transport considers the provisions of Sections 33 (3), 305 (1), 306 (4) and 364 (3) of the Labour Code to be another constitutional non-conformal provision of the Labour Code, which establishes an unequal position between employers and, as a result, between employees in general, specifically depending on whether or not a trade union organisation operates with the employer. The provisions defining the scope of trade unions, in particular in terms of their representativeness, their competence in collective bargaining and, consequently, the commitment of the collective agreement to all employees, are supposed to be unconstitutional. The retention of monopoly status for trade unions as well as for representation of non-members of trade unions not only in the field of collective bargaining and information and discussion of general issues, but also in matters of purely individual nature (e.g. on termination, immediate termination of employment, transfer to another job), including against the will of non-member trade unions, may be considered unconstitutional. The Labour Code therefore interferes with constitutionally guaranteed rights and freedoms without requiring a general interest. It significantly infringes the principle of equality between all stakeholders in labour relations. Despite the declared original intentions, the new regulation of the Labour Code is largely mandatory in nature and ignores the principle of the autonomy of will and contractual freedom. In this context, the Association of Industry and Transport of the Czech Republic further stresses that the new legislation unjustifiably interferes with a number of constitutionally guaranteed fundamental rights and freedoms, disputes the principle of legal certainty, the requirement of stability and predictability of law and is not in need of compliance with the constitutional guarantee of a democratic rule of law, as provided for in Article 1 (1) of the Constitution of the Czech Republic.
54. In the opinion of the Confederation of Employers' and Business Unions of the Czech Republic (hereinafter referred to as the "KZPS '), it is stated, in particular, that employees are unable to conduct expert discussions on the legal nature of the individual provisions of the Labour Code, i.e. whether or not they can deviate from that provision. Nor can employers be required to examine whether a particular provision is mandatory or available in the normal working process, unless it is clearly clear from the law. The issue is more complicated by the fact that the law limits the possibility of deviations in several interconnected ways. On this issue, inter alia, it also provides that a derogation is not possible from the provisions imposing obligations, but that is not the case if it is a derogation for the benefit of a staff member. It is not clear to the authors of the opinion who, on a case-by-case basis and for specific employees, will assess the" employee benefit'. Furthermore, since Article 4 of the Labour Code expressly provides that "the Civil Code shall apply to employment relations under that Act only if it expressly provides for that law ', the question is how rights and obligations in labour relations can therefore be regulated by way of derogation from the Labour Code and according to which the legislation in these cases derogates from the provisions of the Civil Code (as basic private law) only in cases where the Labour Code expressly permits it and in no other case. According to the opinion, there is only one thing that emerges - the deviation is impossible at all, and the first sentence of Paragraph 2 (1) of the NZP is merely a proclaim aimed at formally fulfilling the need to build the Labour Code on the principle of" what is not prohibited is allowed. "
55. According to the opinion, the Labour Code does not only bring legal certainty to all participants in labour law relations, but, on the contrary, it distorts it to an unacceptable extent. These are incomprehensible, indeterminate, interconnected and de facto impossibility of application with all the consequences of such a situation (breach of the principle of the disclosure of legal status and predictability of legislation. It is said that no one will even think of the declared possibility of deviating from legislation and will do exactly what the Labour Code expressly allows; In many cases, however, this is not clear, because the law is not only linked to other modifications, but also to itself.
56. The opinion of the KZPS also states - on the provision of Paragraph 13 (2) (g) of the Labour Code, according to which the employer must neither demand nor negotiate a commitment in the employment relationship, except for the competitive clause and deductions from income from the employment relationship - that this provision is a gross interference with property law and the principle of equality. Ensuring an undertaking is generally one of the most effective legal instruments of binding law, in particular in terms of preventing infringements. There is no legitimate reason why this should not be the case between persons in an employment relationship and why the protection of ownership should be undermined for the benefit of the debtor in the obligation relationship.
57. As regards the provision of Paragraph 20 of the Labour Code, it is stated in the opinion that it is not acceptable in the rule of law to rule out the absolute nullity of legal acts. In addition, Paragraph 2 (19) states that "the annulment of a legal act cannot be detrimental to the employee unless it has caused the annulment solely on its own '; nullity should not be detrimental to anyone who did not cause it, that is, not just employees.
58. The opinion of the KZPS agrees with the arguments on how the Labour Code was adopted. It is said that the law was adopted hastily, without account being taken of the opponents' arguments and without any link to the relevant legislation; this, for example, on equal treatment and non-discrimination in labour relations. The existing comprehensive regulation, which was in line with the requirements of the European Union under the relevant directives, was repealed with reference to non-existing legislation. Another example is that the law introduced a new concept, namely "occupational care facilities'; without any continuity in any other related legislation, something that does not exist has started to apply. In doing so, important actions and legal consequences in employment relations are linked to this issue. Medical assessments issued by the" occupational health care establishment 'are intended to provide the basis for the obligation to transfer employees to other work [§ 41 (1) (a), (b) and (d)], the possibility of untying employment relationships by dismissal [§ 52 (d)], while at the same time another provision [§ 103 (1) (a)] prohibits employees from assigning work that does not correspond to their medical capacity. Therefore, if the employee had submitted a medical opinion to the employer, issued by any relevant medical institution that would result in his medical incapacity for the work he has done, the employer would have to respect that assessment and no longer allocate the work to the employees. At the same time, however, this assessment would not be a basis for transferring to another work, or for denunciation under § 52 (d) or (e) of the Code. How to address this issue, including whether an employee would have the right to compensation for wages in such a case (whose side would be an obstacle to work), is a matter of considerable legal uncertainty.
59. The opinion of the KZPS criticises that a further consequence of inconsistency with the rule of law is the newly introduced impossibility of cancelling the probationary employment for the first 14 days of illness. This is linked to the fact that, according to the original proposal (the effectiveness was postponed by one year), the State was to pay sickness benefits only from 15 days of incapacity for work. In this way, the State simply resolved for itself the question of who will pay for the first 14 days of the staff member concerned's incapacity and transferred this obligation to the employer. In practice this may be the case where an employee becomes ill on a day agreed as the day on which he enters work and without doing anything for his employer, the employer is obliged to pay him the first 14 days of his illness; at the end of the period, the staff member himself may immediately release his employment.
60. According to the KZPS opinion, the effectiveness of the Labour Code has brought considerable legal uncertainty on fundamental issues of labour law, in some cases the impossibility of acting in accordance with it, or the uncertainty of what is at all in accordance with the law. The above are only flagrant shortcomings and legal defects of the new legislation, among others. Any substantive comment made by employers has been interpreted as an attempt to limit workers' protection. However, the NZP contains a number of provisions which are, on the contrary, an obstacle to employment.
61. The opinion also contends - without in any way guaranteeing minimum professional fundiness - that trade unions may issue some kind of unspecified and unspecified "binding guidelines" concerning in-service defects on machinery and equipment, in working procedures, and, where appropriate, prohibit further work. The review of these measures shall be carried out by the Labour Inspectorate only at the request of the employer and the measures of the trade union shall continue to apply until its decision. What happens if the inspector finds that a "binding order" or a ban on work need not be issued is not dealt with by the law.
62. The opinion also challenges the provisions of § 24 (2) and § 278 et seq. of the Labour Code, establishing the unequal status of employees' representatives (trade unions and workers' councils, trade unions). Inequality of subjects and sympathy for one of the forms of representation of employees (or one of them) is said to be accompanied by the whole NZP, thus also affecting the mutual competition of employers.
63. On the provision of Paragraph 33 (3) of the Labour Code, the opinion states that that provision constitutes an unjustifiable unequal position between "state 'employers (or State-linked) and" non-state, private' employers when concluding employment relationships. While the State retained the appointment for itself as a way of creating employment for senior employees (with all the related consequences, i.e. the possibility of withdrawal from such a place and the possibility of withdrawal), it abolished that method for other employers. It did so in retrospect, since working conditions established prior to the application of the Labour Code are now considered to be working conditions established by the Treaty, with the exception of those where the employer is a State, a State enterprise, a State fund, etc.). This is true with all consequences, so there is no further possibility of withdrawal (and withdrawal) from such a place since 1 January 2007. Thus, for employment relationships which were based on appointment under certain conditions which both parties knew (possibility of appeal), these conditions have suddenly changed and such staff members cannot be dismissed; However, this applies only to certain employers. According to the opinion, this is a flagrant breach of the equal position of the parties to legal relations and legal certainty at all. The objection that an appeal from a post can be agreed will not stand, as the agreement envisages the consent of both parties and the existing senior staff appointed to a post of employment cannot, of course, be forced to do so. Although the termination of employment was not the case, it is a matter of jobs in top positions where there is often a need for a very flexible change; even if the employee does not infringe any of his employment obligations, he may nevertheless make incorrect and inappropriate measures affecting the employer's economic performance and thereby the security of the employees of others.
64. The KZPS Opinion on Articles 305 (1) and 306 (4) of the Labour Code, which deals with the difference in the position of employers who are not employed by the trade union organisation and employers who are not employed, states that the employer may issue an internal regulation in the cases provided for only if the trade union organisation is not present or under its authority. However, the trade union itself does not mean that a collective agreement will be concluded on these issues. This inequality is not justified even if the collective agreement regulates these issues in addition to the internal regulation.
65. Finally, the opinion of the KZPS refers to the provisions of Sections 46 and 61 (1) of the Labour Code concerning the obligation to discuss with the trade union the transfer to another job or termination or immediate termination of employment, including for employees "who are not represented by the trade union organisation." Regardless, however, it is a question of why there is a need to discuss a statement or an immediate cancellation with the trade union. For both legal acts it is necessary to precisely fulfil the conditions laid down by the law, which are quite complex and strict, because otherwise this cannot be done. It is therefore unclear what the practical purpose of the previous discussions with the trade union is.
66. The Czech-Moravian Confederation of Trade Unions (hereinafter referred to as "ČMKOS") underlines in its very extensive opinion that the proposal of a group of Members is based on a different concept of economic, social and cultural policy from that of the NZP. First of all, it is not a professional legal problem to find compliance of the NZP with the constitutional order of the Czech Republic, but a political problem that goes beyond the jurisdiction of the judiciary and is resolvable in terms of the substance of the dispute, in a constitutionally consistent way exclusively in the sphere of social policy, free competition from political parties. ČMKOS is convinced that the basic principles, meaning and objectives of the NZP are in organic compliance with the Constitution and the Charter of Fundamental Rights and Freedoms as well as with other relevant standards of the Czech legal order, including the so-called "Euronovele" of Articles 1 and 10 of the Constitution.
67. The individual points of ČMKOS include.
68. The appellants argue that the principle of legal certainty and stability "contradicts the fact that it was adopted promptly, despite the negative opinion of the Senate and the President of the Republic, despite the criticism and objections of the unconstitutional nature of certain provisions of the Code and without consensus between the government coalition and the social partners'. This claim is not relevant because the NZP was adopted in accordance with the procedure laid down in the relevant legislation. Neither the Constitution nor any other legislation prescribes, as a condition for the constitutionality or validity of the law, a" mandatory 'consensus within the framework of a government coalition, or between the social partners or the professional legal public; The constitutionally protected autonomy of legislators is completely superior when adopting laws. It is clear that the radical criticism of the NZP embodied in the proposal is based on the requirement of a purely private legal nature of the regulation of labour relations, but which did not prevail in the process of approving NZP in the Chamber of Deputies.
69. As regards the objection of "non-familiarity" or "low quality of NZP," ČMKOS stresses that this view is also influenced primarily by political interests (with the same objections, according to the statements of some members of the Legislative Council of the Government at the meeting of this Council on 19 October 2006 on the Government's proposal to postpone the effectiveness of NZP and some related laws can be met with virtually any more important legislation). This conclusion cannot be categorically expressed independently of the broad institutional basis of interpretation and application of the law, in particular the activities of courts, lawyers and legal theorists. Almost generally, it is considered that our legislation is imperfect. In the opinion of ČMKOS, this is mainly due to a large number of legislative changes made in the form of amendments when discussing draft laws, the simultaneous discussion of many related laws, the shortening of the legislative process, the "formal" comment procedure, which does not respect reasoned comments of a fundamental nature, etc. In this respect, the NZP is not an exception, but, as in other cases, the degree of "inquality" and "unfamiliarity" in the standards contained therein does not disqualify them as legal standards. It is always possible to discuss which of the concepts of labour regulation is, from a constitutional point of view, legitimate or more legitimate. However, the rule of law is based on the principle of the rule of law, i.e. the rule of law and the ruling of disputes by independent courts.
70. The proposal states: "The democratic rule of law is not based on legislation that covers all areas of life, but on legislation that defines only the basic structure under which free activities are carried out 'or" There is also a breach of the principle (Article 2 (3) of the Charter), according to which an individual and his free conduct in the rule of law always has priority over the state of law'. CMKOS argues, however, that this ideological conclusion is not expressed in Czech constitutional regulations. Thus, the individual and his free conduct in the rule of law do not always have priority over the state power of the law, the law limits him and his freedom of action.
71. The liberal normative "all is permitted, what is not forbidden" is undoubtedly one of the principles of a democratic rule of law. Article 4 of the Charter contains the basic rule for this regulatory regulation, which lays down the conditions under which the obligations and the limits of fundamental rights and freedoms may be imposed, i.e. always by law and must always be investigated for their substance and meaning. The restriction shall apply to all cases which satisfy the conditions laid down and shall not be misused for purposes other than those for which it has been established. ČMKOS stresses that these provisions correct the liberal credo on which the NZP criticism is based. Article 2 (1) of the Charter provides: "The State shall be based on democratic values and shall not be bound by any exclusive ideology or religion." Such an ideology is undoubtedly liberalism, which therefore cannot be the sole criterion of the constitutionality of a democratic rule of law. The paradox of the proposal is said to be that, although it itself objects to the inconstitutionality of the NZP for "political" reasons, it also seeks to inadvertently shift and transform the ideas and values of the constitutional order of the Czech Republic.
72. ČMKOS takes the view that the Czech Republic, like the other Member States of the European Union, is a social state. Although the Constitution does not know the concept of a "social state," the social character of the Czech Republic undoubtedly results from the constitutional establishment of economic, social and cultural rights in the Charter, from the International Covenant on Economic, Social and Cultural Rights of the United Nations, published in the Collection of Laws under No. 120 / 1976 Coll. ("the Pact ') and other international treaties. The amended Article 10 of the Constitution refers in general to international treaties and gives them priority in the case of" where an international treaty provides for something other than law'. Therefore, the ordinary law cannot compete with the International Covenant on Economic, Social and Cultural Rights and its derivatives. His preamble is quoted: "The Parties to the International Pact on Economic, Social and Cultural Rights recognise that, according to the Universal Declaration of Human Rights, the ideal of a free human being free from fear and need can only be achieved if conditions are created in which everyone can use their economic, social and cultural rights, as well as their political and civil rights." It is said that there is no doubt about the normality of these wordings, in which there is a clear departure from harsh liberalism and a shift towards the responsibility of the state (society) for the fate of individuals and society. Article 4 of the International Pact on Economic, Social and Cultural Rights refers to the promotion of "the common good in democratic society." At the same time, these wording and specific rights show the state's orientation towards action to prevent social inequality from deepening. Thus, this Pact limits the liberal tendency to "minimise" the state. CMKOS points out that the Declaration on Social Progress and Development (UN, 1969) confirms these conclusions. Article 6 The Declaration calls for everyone to ensure the right to work and free choice of work "in accordance with human rights and fundamental freedoms, as well as the principles of justice and the social functions of ownership and the establishment of such methods of production, which would exclude any form of exploitation of man, ensure that all human beings have the right to property and create conditions leading to real equality between them." Social, economic and cultural rights, however, differ from fundamental rights and freedoms (liberally democratic), which are directly binding and enforceable as subjective rights. They can only be invoked "within the limits of the laws implementing these provisions" (Article 41 (1) of the Charter). From this distinction, there is an obvious tendency in the proposal to disqualify them as the rights of the lesser, with a low degree of normalisation, turning these rights into mere programming components of the Constitution. ČMKOS believes that there is no legally relevant reason to deny these rights to normality and to separate them from fundamental rights and freedoms, as they support each other organically. "All human rights and fundamental freedoms are indivisible and interdependent, the same attention and priority should be given to supporting and protecting civil, political, economic, social and cultural rights." (Declaration on the right to development, UN 1986). In order to do so, the International Covenant on Economic, Social and Cultural Rights in Article 5 states that nothing in this Covenant may be interpreted as giving any State, any group or person any right to engage or commit acts aimed at suppressing any of the rights or any of the freedoms recognised by this Covenant or to restrict them to a greater extent than that provided for in this Covenant. No restriction or derogation from any of the fundamental human rights recognised or existing in any country by virtue of laws, conventions, regulations or practices shall be permitted under the pretext that the Pact does not recognise or recognise such rights to a lesser extent.
73. ČMKOS further points to the known Article 1 of the Charter and Article 1 The Universal Declaration of Human Rights, which recognises: "All people are born free and equal in dignity and rights, are gifted with reason and conscience and are to act together in the spirit of brotherhood." It follows from the legislative text of the Charter that these rights exist independently of the state's legislative recognition. Given their non-state existence, the state cannot disturb them, they are also an inexcusable limit for the constituencies, and even citizens cannot abandon them in a referendum. The legislative technique - the relationship of cognency and disposition (see Article 2 (3) of the Charter) is therefore determined by both the nature of the regulated relations and the inalienable fundamental rights and freedoms. The term "free contract" is derived from the legally equal free will of the parties to the contract, but it cannot apply to the freedom or the pleasure of the content of the contract. ČMKOS believes that the requirement of a free treaty, together with the requirement of autonomy of individual will, namely the requirement of the maximum limitation of the cogent regulation that the proposal raises, is brought down with these impossible limits. These are addressed by the objective inequality of the parties arising from the unequal social situation and its consequences (in particular the "competitive advantage of cheap work ', etc.). The employment contract is a specification of these limits, i.e. a specification of the mandatory respect for ensuring that the dependence given by contractual restrictions on freedom (working time) does not continue in the extra-work sphere, does not interfere in the moral and intellectual autonomy of individuals, etc. It is about human beings being being treated humanly, and that different forms and reasons for discrimination and preferences undermining the principle of equality are excluded. CMKOS points out that the request for a proposal" to remove at present the already unfounded significant interference in the Constitution for Guaranteed Rights and Freedoms "appears to be a misunderstanding in this regard, because in all these cases it is precisely the implementation of these rights and freedoms. The proposal calls for respect for the" principle of an adequate (fair) balance between the requirement of the general interest of society with the requirement to protect the fundamental rights of the individual "(p. 4), but in this case, it is (precisely) that the protection of the individual is met by the general interest, the general will formulated in the Charter. The proposal considers that the NZP seeks" to normalise all areas of' labour law 'life' and refers (p. 11) to the finding of the Constitutional Court II. ÚS 192 / 95 (Collection of Decisions, Volume 4, Found No 73), in which Article 2 (4) of the Constitution ("Everyone can do what is not prohibited by law, and no one must be forced to do what the Law does not impose. ') states that it" must also apply to the field of labour relations, even in the light of their specificities, as they are provisions of fundamental importance in every democratic society, and that it is an insurance against the totalitarification of a society, which is its own attempt to normalise all areas of life'. These arguments do not confirm and, in the legal opinion of ČMKOS (see above), they cannot confirm that the constitutional principle is to be interpreted in a purely liberal spirit. The issue is that the consequences of the dependency associated with labour law processes are not unduly enhanced at the expense of freedom, dignity and equality of workers. These are the guiding criteria of interpretation, because it is not enough to rely solely on 'good will' on addiction.
74. CMKOS further declares that the classic "free treaty" in labour relations from the times of economic liberalism has been overcome by codification of fundamental rights and freedoms binding on both sides. At a number of points in the proposal, these interventions are classified as contrary to Article 11 (1) of the Charter, i.e. the protection of property rights; However, the proposal does not mention Article 11 (3) of the Charter, which sets out the important principle of "ownership obligations', i.e. the principle of social function of ownership. The protection of work, as well as the environment and other values, is not conceivable without restrictions on the disposition of ownership. The private interest is faced with a general interest, which as such is a private superior. Today, the European Union is seeking to bring together organically individual (subjective) fundamental rights and freedoms with mass labour conditions. What arose in the historical process as an objective need to defend the work of external forces (state, trade unions) is legalized in individual and general (public) interest. At the same time, the independence of trade unions (the Charter, Article 27 (2)) is derived from this general interest as a barrier to the above-mentioned totalitarialisation trend, which unloosely linked work to superindividual political services and purposes. The proposal is based on the expectation that" the new legislation on employment relations should bring about a change in these relations, consisting of a less intensive need for protection of workers and the reduction of interventions or their intensity, to other constitutions of guaranteed individual rights and the relaxation of contractual freedom '. However, this would in itself cripple the intensity of workers' protection. It is clear that in the mid-19th century, the association (formation of coalitions) in most countries was still a criminal offence to protect economic and social interests. On the territory of the Czech Republic, the crimes of the Coalition have been lifted by the Coalition up to Act No. 43 / 1870. Only in the 20th century is coalition freedom guaranteed in the constitutions of democratic states. "By declaring that the preamble to the Constitution of the International Labour Organisation and, once again, the Philadelphia Declaration that 'freedom of speech and association is a necessary condition for constant progress...' and forming one of the fundamental principles on which the International Labour Organisation is based, the obligation to guarantee freedom of association (i.e. coalition) has become a statutory obligation for every Member State of the ILO. '
75. CMKOS stresses that the guarantees of coalition freedom, including the right to create trade unions, enshrined in the relevant international documents, legitimise the defence activity of trade unions, which would, however, be essentially toothless without the possibility of active entry into labour law relations and their regulatory process. These principles are generally recognised by our legal theory: "Coalition freedom is to some extent part of the right of association (i.e. to association), guaranteed generally in Article 20 of the Charter as a political right... and is thus understood in international legal documents; At the same time, however, the scope of this right goes beyond, in particular, that it is a fundamental principle of the whole economic and social order - a market economy, since, in addition to guarantees against State interference in the freedom of individuals and their associations (status of negative), it also includes the integration of both social partners (... employers' and employees' coalitions) into a legal process with the right to jointly establish, in collective agreements, legal standards with binding law (status of positivus)." (Pavlicek, V., Høebek, J., Knapp, V., Kostecka, J., Sovák, Z.: Constitution and constitutional order of the Czech Republic. Episode 2 Law and Liberty. Linde Praha, a. s., Praha 1996, p. 208). The legitimacy and substance of trade union defence activity, which is reflected primarily in collective bargaining and the conclusion of collective agreements, are the most effective tool for resolving the existing conflict of interest between workers represented by trade unions and employers, is thus an integral part of the political system of each democratic state.
76. The applicants argue that the NZP does not meet the social needs of changes in labour law, caused by a change in the situation and needs of society. ČMKOS is convinced that it is not for the Constitutional Court to have a discussion about this. In particular, it is necessary to address the degree of intensity of any intervention of the contested provisions in the constitutionally guaranteed rights and freedoms and to consider whether the grounds for the annulment of the contested provisions by the Constitutional Court are given. According to ČMKOS, it is clear that this fundamental assumption, the high intensity of the intervention of the contested provisions in constitutionally guaranteed rights and freedoms, is not fulfilled.
77. It is also clear from the proposal that the motivation that led to its submission is political, not legal, in nature. This is evidenced, inter alia, by the fact that the proposal has been made by Members of several right-wing parties and is not supported by any Member of the Left-wing Party represented in the Chamber of Deputies, a substantial part of the reservations against the legal text being held against the rights protected by a number of ratified international documents, as well as by Article 27 of the Charter (trade union association, collective bargaining), in line with the similarly formulated reservations expressed by the right-wing parties when discussing the NZP in the Chamber of Deputies before the elections and repeatedly when discussing the proposal to postpone the effectiveness of the NZP just before its entry into force.
78. Thus, rather than deciding on the constitutionality of certain provisions of the NZP, the proposed proposal seeks to resolve the political dispute on the "liberal 'or" social' form of the NZP. ČMKOS considers that the assessment of a dispute of such a nature does not belong to the Constitutional Court and points out that its decision may become a serious precedent that adversely affects the future conduct of political party representatives in cases where they fail to legislate in the political competition in Parliament. The Constitutional Court should not become an arbitrator in such disputes between political parties.
79. CMKOS stresses that the Constitutional Court's mission is to monitor the constitutional order (Article 83 of the Constitution). The material content of the legal standards is and should continue to be determined solely by a positive legislator (Parliament of the Czech Republic), whose competence is a credible identification of the social needs of law. The proceedings before the Constitutional Court should not be a substitute for substantive discussion where a substantive solution duly adopted by a positive legislator for whatever reason does not comply with or is considered incorrect by certain addressees.
80. The opinion of ČMKOS continues with the arguments for the individual contested provisions of the NZP according to the headings:
81. The appellants request the annulment of the provisions of Paragraph 2 (1) of the NZP. In particular, they argue that its application to liberalise labour law will not succeed and thus, in principle, this regulation preserves the cogent nature of labour law. They import that Paragraph 2 (1) of the NZP infringes the constitutionally guaranteed principle of contractual freedom and does not comply with the requirements of the rule of law. The contested provision of Paragraph 2 (1) of the NZP in the first sentence provides that rights or obligations in employment relationships may be regulated by way of derogation from this Law. In the opinion of ČMKOS, the basic framework for the application of the standards contained in the NZP, which implements the general principle of "what is not prohibited is permitted 'for labour relations. Further standards contained in Paragraph 2 (1) then provide for exceptions to this principle or other conditions for its application. ČMKOS therefore does not agree with the claim that the nature of the NZP is without further cogent, since, in addition to the exceptions provided for in the other standards contained in Paragraph 2 (1), the other provisions of the NZP are of a dissociative nature and thus allow different arrangements of the Contracting Parties. In addition, according to the NZP, the parties are allowed to negotiate such rights and obligations as the NZP does not explicitly contain. Although it is true that a number of provisions are of a cogent nature, it cannot be claimed to be cogent as a whole. As regards the social need for contractual freedom in employment relations, ČMKOS repeatedly considers that the material content of legal standards is determined solely by the legislator in the legislative process. Thus, the design of the cognency and disposition of the NZP provisions clearly corresponds to the legislator's idea of the degree of liberalisation of labour law. However, the argument that the chosen level of compliance of the NZP is factually incorrect or socially unsatisfactory is irrelevant in the proceedings before the Constitutional Court. From the point of view of the constitutionality of the provisions in question, it is only possible to consider whether or not the cognency of the NZP provisions is consistent with the principle of contractual freedom and the autonomy of the will. The Old Labour Code was built on the principle of" what is not allowed is forbidden, "that is to say, all its standards were mandatory, except for those where the Act explicitly allowed different arrangements of participants. This was an expression of the principle of the protection of the weaker party to the employment relationship, as the essence of labour law, which" historically arose because of the need to protect the weaker side of the employment relationship, i.e. the employee. Even at present, the protection function can be regarded as the most important and predominant function of labour law "(Belina, M. et al. Labour law. Issue 1. Praha: C. H. Beck, 2001, p. 4). Therefore, if the NZP has taken the path of partial liberalisation of labour law, it cannot be expected that it will resign entirely from the traditional principles of labour law. In fact, labour law remains a sector within the limits of private and public law and, in addition to establishing a certain scope for the exercise of the autonomy of the parties' will, it must also ensure certain fundamental and unquestionable rights of employees, thereby guaranteeing them the maintenance of the basic standard of social security. Therefore, it cannot be expected of the NZP that the parties to the employment relationship will be granted shore-free contractual freedom, as it continues to be the case that" the employment contract is a contract between partners with an unequal bargaining power... '(cf.
82. In the opinion of ČMKOS it is recalled that the Constitutional Court in the past dealt with the compliance of the old ZP with the constitutional order, in particular in the sp. zn. II. ÚS 192 / 95, published in the ECR, Volume 4, Found No 73, and in the sp. zn. I. ÚS 27 / 96, published in the same collection, Volume 5, Found No 59. II. ÚS 192 / 95 The Constitutional Court stated that "Article 2 (3) of the Charter and Article 2 (4) The Constitution must also apply to the field of employment relations, even in the knowledge of their specificities, as it is a provision of fundamental importance in every democratic society, as long as it is an insurance policy for freedom and, at the same time, an insurance against totalitarisation of a society which is its own attempt to normalise all areas of life as far as possible." I. ÚS 27 / 96 However, the Constitutional Court stated that "in particular, in the field of labour law, it is typical of the cognency of legal standards, which (inter alia) means that contractual freedom can only be exercised in those cases where labour law allows it to do so ', and" even in the case of equality between the two participants in the labour relationship before the law, the employer is and will continue to be pars potentior so that the protection of workers in this form is justified'.
83. According to CMKOS, the provision of § 2 (1) of the NZP is further considered to be unconstitutional for alleged non-compliance with the principles of the law and predictability of the judgment. It is true that the contested legislation constitutes the main change that the NZP brings to labour law. This is the application of the principle of 'what is not prohibited is permitted' as the principle of the contrary has been applied in the present legislation. The fact that the introduction of this principle into labour law will in practice present certain interpretative and application difficulties arises from the very fact of the "novelty 'of the legislation in question. Clearly, the method chosen by the legislator to apply the' what is not prohibited is allowed 'principle in labour law is rather unusual and innovative. The general rule that the rights and obligations in employment relationships may be regulated by way of derogation from this law provides for exemptions using a combination of the" calculation method "and a method whereby the available or cogent nature of the individual provisions is derived, on the one hand, from their wording (establishing an explicit prohibition) and from their nature. The calculation method is represented in particular by the provisions of Section 363 of the NZP, and the provision of the second paragraph of Section 2 (1) can also be regarded as a certain analogy of the calculation method. According to the second method, as provided for in the first sentence of Paragraph 2 (1), there is no derogation from the provisions which expressly do not allow this, or where the impossibility of deviating from them results from their nature. This unusual and rather complex way of expressing the cogenality or disposition of the various provisions of the NZP is likely to cause interpretative difficulties in combination with the novelty of this legislation. However, these difficulties - using common interpretative methods - are not insurmountable. As regards the relationship between the first sentence, the last sentence of § 2 (1) and § 363 (2) of the NZP, CMKOS considers that these provisions are not inconsistent and can be interpreted and applied side by side. If the first sentence of Paragraph 2 (1) provides that rights or obligations in employment relationships may be regulated by way of derogation if the law expressly prohibits it, then it can be concluded that, where the law expressly prohibits it, a derogation from its wording is not possible. The provisions of the last sentence of Paragraph 2 (1) may, without further ado, be regarded as one of those which foresees the first sentence to be worded, since it provides that rights or obligations in labour contributions cannot be regulated by way of derogation from this law in the cases referred to in Paragraph 363 (2). Through this standard the provisions calculated in Paragraph 363 (2) must be considered as those from which, in the light of the wording of the first sentence of Paragraph 2 (1), no derogation can be made. In the opinion of ČMKOS, the relationship between the first sentence of § 2 (1) and § 363 (1) of the NZP is also clear. If the fourth sentence of Paragraph 2 (1) provides that a derogation from the provisions set out in Paragraph 363 (1) is only possible for the benefit of a staff member, then that standard must be regarded as a lex specialis in relation to the first sentence of Paragraph 2 (1) and treated as required by the law on the basis of the provisions laid down in Paragraph 363 (1) (a derogation from those standards only for the benefit of a staff member is justified by the fact that these provisions have been transposed into Czech law on the basis of the legislation of the European Communities at the lowest permissible level of protection of the staff. The same applies mutatis mutandis to the standard contained in the third sentence of Paragraph 2 (1), which provides that only for the benefit of the staff member may derogate from the provisions imposing the obligation.
84. In the opinion of ČMKOS, it is also clear that it is necessary to arrive at the interpretation of these provisions in order to derive the cogenality or disposition of the various provisions of the NZP on the basis of their "nature '(§ 2, first sentence). ČMKOS does not agree that if different methods or combinations of methods need to be used to properly interpret the legal text, this is the inconstitutionality of the relevant legal standard. The interpretation of the rule of law is entirely natural in everyday legal practice and does not infringe the principles of law and legal certainty. In this context, the role of decision-making practices of independent courts cannot be ignored. CMKOS does not agree with the assertion of the parties to the proposal that the principle of law and legal certainty is distorted by the fact that the final confirmation of the accuracy of the interpretation will have to take place only by a court decision. It does not agree that judicial decisions would be necessary to confirm the accuracy of the interpretation of a larger number of NZP provisions, since most of them can be interpreted and applied unequivocally using commonly used interpretation methods. The legal path to bridging some of the interpretative ambiguities is then entirely in line with the rule of law. This is also fully used for other existing legislation, which also contains standards that may cause interpretation and application difficulties. This applies, for example, to the IP, which, in its provision of § 2 (3), contains the same basic definition as the first sentence of § 2 (1) of the NZP of the provisions. In doing so, it is respected that" enforcing the principle of everything is permitted, which is not prohibited, in civil relations will be heavily dependent on the approach of legal application practice and case law "(Fiala, J. et al. Civil law material. 3rd edition. Brno: Masaryk University, 2002. p. 18). There is also a similar situation in the interpretation of certain provisions of the Commercial Code, such as Article 1 (2) of the Commercial Code, according to which the legal relations governed by this Regulation are, in certain cases, governed by commercial practices; in this case, it is a matter of fundamental importance, regulated by the concept and wording, which is very difficult to unequivocally interpret and define precisely and unequivocally. In doing so, it is again fully respected that the method of dealing with possible interpretative difficulties that" even in our country, practice will gradually develop by taking over the case-law for the construction of what is and is not a commercial custom "(Elias, K., Bejček, J., Håzek, P., Ježek, J. and Kol. General section. Competition law. 4th edition. Praha: C. H. Beck, 2004. p. 64).
85. According to ČMKOS, the same argument (as above) can then be used against the claim that the inapplicability of Paragraph 2 (1) causes the use of a code... "where there is a deviation for the benefit of the employee ', without the relevant provisions being explicitly identified as cogent or without the classification of the provision itself containing a clear order or prohibition. Here, too, this is a general concept which, when using the correct interpretation method and taking into account the specific provisions applied and the situation in most cases, can be quite clearly interpreted and applied. In the event that its interpretation in a particular case and in relation to a specific provision of the NZP would be more severe, which would culminate in a judicial dispute and a subsequent binding decision, this cannot be considered to be unique and in itself unconstitutional.
86. CMKOS concludes, in relation to the degree of cognicity or disposition of the various provisions of the NZP, that it is a legislator chosen and fully legitimate solution to the application of the principle of "what is not prohibited, is allowed" to labour relations, while maintaining the traditional nature of labour law and its core principles, i.e. the protection of the weaker party to the legal relationship. In view of this traditional and even in the current social conditions, the CMKOS still considers that the degree of cognency or disposition of new labour legislation cannot be found unconstitutional. Considering the requirement for proportionality, it is concluded that, to some extent, the continuing cognency of the new labour legislation is in line with the principle of protection of the weaker party to the employment relationship, without thereby interfering beyond what is acceptable and justified in the principle of the contractual freedom of private law. ČMKOS considers that, using common and generally respected interpretation methods, a sound level of legal certainty can be established as to whether or not certain provisions of the NZP can be derogated from. In the event that the interpretation of certain provisions would be more difficult in the application practice, it is entirely consistent with the constitutional order and under the conditions of the Czech legal order, if it helps to establish interpretation by the courts through its decision-making activities.
87. Furthermore, CMKOS states that, contrary to the old Labour Code, the NZP is based on the assumption that the modification of certain institutes will not contain the Labour Code itself, but will be applied to the modifications contained in the IP. The so-called method of delegation was chosen, the expression being that only the provisions of the OZ to which the NZP explicitly refers (Section 4 of the NZP) can apply to employment relations. The method of delegation is also confirmed in Paragraph 2 (1), according to which the participants in labour relations cannot deviate from the provisions which refer to the application of the IP. It is said that this is so that the institutions covered by the IP provisions, the application of which the legislator provides for in employment relations, cannot be contractually extended to include others whose application to labour relations has not been regulated by the legislator.
88. The current application of the IP to labour relations constitutes, in addition to implementing the constitutional principle, "what is not prohibited, is allowed" another turning point in labour law legislation. ČMKOS adds that the innovative and non-traditional moment is already the opportunity to apply itself to the regulation of the labour relations of the Czech Republic. In addition to the objection of the substantive imperfections of this regulation, which CMKOS considers to be irrelevant from the point of view of the proceedings before the Constitutional Court, the appellants argue that it is incomprehensible and inapplicable and therefore contrary to the principles of the rule of law. ČMKOS does not agree with this, as the method of delegation constitutes a clearly and clearly defined framework for the application of the IP in employment relations. By their proposal, the appellants express only subjective disapproval of the chosen method of application of the IP in employment relations, or of which provisions of the IP will or will not apply to employment relations. ČMKOS also does not agree with the claim that the construction of the provisions of Section 4 of the NZP in relation to Section 2 (1) of the NZP would have caused the absolute integrity of the NZP. These provisions seem to express to the legislator the will to apply to employment relations which are not.
89. The appellants further argue that the method chosen by the delegation constitutes an intervention in the legal certainty of the participants by applying, for example, the provisions of the IP concerning the termination of commitments due to the impossibility of performance or withdrawal of the contract in employment relations. ČMKOS does not agree with the interpretation of the appellants according to which the parties to the employment contract may negotiate the possibility of withdrawal from the contract under Paragraph 48 of the IP, thereby causing the said interference in the legal certainty of the participants in the employment relationship. In fact, if the provision of Paragraph 48 (1) of the NZP provides that the employment relationship may be untied only by agreement, notice, immediate cancellation and cancellation in probationary period, it may be concluded from the applicable code "only 'and contrario that it is a cognisingly established list of termination legal acts which cannot be extended by contractual arrangements between the parties to the contract by other legal acts, i.e. any withdrawal. Such an arrangement would be invalid. An analogous example can be found in the modification of the lease agreement adjusted by § 685 et seq. The provisions of Sections 710 and 711 concerning the termination of the lease provide for a cogent list of legal acts on the basis of which the lease of the flat may be terminated (agreement and notice). It is clear from this that" if a contract concluded between the lessor and the lessee contains an arrangement to terminate the lease of an apartment which would be contrary to that arrangement, that arrangement will be invalid' (Holub, M. and Col.). Civil code. Comment. Volume 2. Praha: Linde Praha, a. s., 2002 s. 1069).
90. According to ČMKOS, the nature of the withdrawal from the contract pursuant to § 48 of the IP must be taken into account, in which case the contract is cancelled from the outset (ex tunc) and the parties to the contract must, in accordance with the provisions governing the unjustified enrichment, recover the transactions already provided by the contract. It is clear that this mechanism cannot be applied to the employment or rental relationship, the essence of which is that it is consumed through continuous and repeated performance. If it was agreed that the possible withdrawal would have effect ex nunc, it would have been a circumvention of the law, or a disguised legal act, such as a statement, which would have to be regarded as such in the light of the provisions of Paragraph 41a (2) of the AZ, in this case as a termination. In the opinion of ČMKOS, the provision of § 48 of the IP cannot be applied to employment contracts, both on the basis of the grammatical and the abovementioned logical interpretation. It is also necessary to take into account the intention of the legislator, who probably did not want to allow the application of Paragraph 48 of the IP to employment contracts, which results from both the definition used in Section 48 of the NZP and the construction of a single permissible case of withdrawal from the employment contract in Section 36 (2) of the NZP. The principles on which labour law is built must also be used; it is a principle of protection of the weaker party to the employment relationship, the principle of the right to work under Article 26 of the Charter, which also implies "the guarantee to change the job freely, therefore the right to guarantee protection against arbitrary dismissal and its possible consequences' (Pavlicek, V., Hřeběk, J., Knapp, V., Kostecka, J., Sovák, Z.: Constitution and constitutional order of the Czech Republic. Episode 2 Law and Liberty. Linde Praha, a. s., Praha 1996, p. 200), and the principle of compliance of work with good morals according to § 13 (5) of the NZP. The negotiation of resignation from a contract of employment would undoubtedly be contrary to all these principles, as would ILO Convention 158 on Termination of Employment at the initiative of the employer.
91. In the other part of the proposal, to abolish the provisions of Paragraph 13 (2) (g) of the NZP as regards the "guarantee of liabilities', the appellants refer as one of the examples of the legal ambiguity and inapplicability of the NZP standards to the application of the provisions of Sections 544 (1) and (2) and Article 545 of the OZ (contractual fine) referred to in Section 326 of the NZP in relation to the provisions of Sections 13 (2) (g) and 13 (2) (f) of the NZP. ČMKOS considers that the appellants' proposal [to abolish the provisions of § 13 (1) (g) and § 326 of the NZP, while the repeal of the provisions of § 13 (2) (f) does not require] clearly goes against the substantive solution chosen by the legislator, which does not belong to the Constitutional Court.
92. ČMKOS considers that § 13 (2) (g) of the NZP is a lex specialis for lex generalis, i.e. § 544 (1) and (2) and § 545 of the IP. It is not true that the provisions of the IP as regards the provision of the liabilities to which the NZP refers are inapplicable. The contractual fine can be negotiated to ensure the performance of the employer for the benefit of the employee. Although this option is only formal, difficult for employees to implement, it is clearly at least a partial compensation for the legal status of participants in employment relations. CMKOS recalls that the old legislation in terms of securing liabilities was only for the benefit of the employer. The employee had no reinsurance institution available.
93. In addition, ČMKOS considers that the relationship of § 544 - 545 IP to § 310 (3) NZP is a relationship of lex generalis to lex specialis. If Article 545 (1) of the IP provides that, if there is no other effect on the contractual fine arrangement, the debtor is obliged to comply with the obligation to which compliance has been ensured by the contractual fine even after payment of the contract, then Paragraph 310 (3) of the NZP modifies the standard in such a way that the employee's obligation to pay the contractual fine ceases to exist. Another arrangement is therefore not possible as the special standard in NZP increases the protection of the employee. In addition, ČMKOS adds that the old legislation was similar to that chosen by the legislature in Article 310 (3) of the NZP [cf. § 49 of Act No 154 / 1934 Coll., on the employment relationship of private officials, commercial assistants and other employees in a similar position (the Private Employees Act): "If the employee has promised a contractual compensation (a conventional fine) in case he acts against a competitive clause, the employer may claim only the contractual compensation, not the fulfilment of a competitive clause or compensation of further damage."] The legislation chosen by the legislator in § 310 (3) of the NZP is therefore neither new nor unusual.
94. ČMKOS then considers that the relationship of § 13 (2) (f) NZP to § 310 (3) NZP is a relationship of lex generalis to lex specialis. Paragraph 13 (2) (f) states: "The employer may not impose, or require, monetary penalties on the employee for any breach of the obligation arising from the employment relationship; This shall not apply to the damage for which the staff member is responsible '. For the sake of legislative economics, the norm lacks a sentence:' unless the law provides otherwise ', which must, of course, be supplemented in its interpretation. However, interest on late payments (Section 517 (2) of the OZ) may be claimed by the employer on staff (and vice versa).
95. Therefore, if the appellants object at this point to the non-familiarity of the rule of law and to the unpredictability of legal decisions, ČMKOS merely notes that it is an interpreter's error, not a defect in the rule of law. The correct interpretation of the legal standard is one that uses all standard interpretation methods. It is not linked to an authoritarian statement by the court, but is accessible to every addressee of the rule of law.
96. CMKOS adds that the appellants consider the provision of Paragraph 13 (2) (g) of the NZP as a flagrant interference in property law (protected by Article 11 of the Charter), according to which "the employer must neither demand nor negotiate an obligation in the employment relationship except for a non-competitive clause and deductions from income from the employment relationship '; They also consider this regulation to be contradictory to the constitutionally anchored principle of equality and see significant interference in the contractual freedom as such. According to ČMKOS, the limitation of the security of liabilities is an expression of the protection of the economically weaker contracting party - the employee - and is therefore in line with the Constitution (cf. Sv. In any event, the exclusion of other means of securing the employee's debt than by a contractual fine or a wage reduction (Paragraph 327 of the NZP) does not protect the employee's unlawful conduct, but is a protection of a proper employee in order not to be burdened with disproportionate burdens. The wage withholding agreement itself serves not only the function of securing the employee's obligation to the employer, but also the function of paying, so that it is the most effective way of securing such obligations.
97. ČMKOS states that, on the contrary, such "equality" would be an inequality, since different cases would be treated in the same way. The relationship between the employer and the employee is much more intimate than between the bank and its client because the employment relationship usually has an alimentary function. Therefore, the employee is much less resistant to extra-legal coercion by the employer and, in the context of prevention, the law prevents him from acting which could be easily misused.
98. As regards the other claims made by the appellants on the unequal position of the employer (as a creditor) as regards the ownership of other persons, which is that "the employer does not have the opportunity to arrange for the obligations of its debtors', ČMKOS notes that the claim made by the appellants is not coherent. As a general rule, it must be regarded as a breach of the principle of equality, not only the unjustified disadvantage of one at the expense of another, but also the unjustified advantage of one at the expense of another. Therefore, if the appellants consider the restriction of the protection of employees' obligations against employers to be a breach of the principle of equality (a disadvantage to other creditors), they no longer consider that an advantage to employers vis-à-vis other owners as regards the direct protection of the employer's assets. Under Paragraph 249 (1) of the NZP, the staff member is obliged to act in such a way as to avoid damage to health, property or unjustified enrichment. The staff member shall also be obliged to draw the attention of the superior manager of the staff member to the damage he is in danger, and shall, in accordance with the provisions of Paragraph 249 (2) of the NZP, be obliged to intervene if urgent action is needed to prevent the damage to the employer. Under Paragraph 251 (1) of the NZP, an employer may apply to a staff member who has not knowingly pointed out to the superior of the staff member a threat to the employer or has not acted against the impending damage, although this would prevent the immediate occurrence of damage, in order to contribute to the compensation of the employer, to the extent appropriate to the circumstances of the case, unless otherwise possible. According to the provisions of Paragraph 415 of the AZ, everyone is obliged to act in such a way as to avoid damage to health, property, nature and the environment. According to the provisions of Paragraph 417 (1) of the OJ, the person in danger of damage is obliged to act in a manner proportionate to the circumstances of the threat to it. While the IP regulates the general obligation of natural and legal persons to avert infringements of legal obligations which, according to experience gained, may result in damage, or the creation of unjustified enrichment (so-called general civil prevention), the NZP strengthens the position of employer as owner by providing a special" signalling "obligation for all its employees and a special obligation to avert a specific threat of damage or unjust enrichment. In addition, the employer may require the staff member to conclude a deficit liability agreement at entrusted values (Section 252 et seq. of the NZP), according to which he transfers responsibility for the protection of his assets to the staff member without giving up his own disposition with his assets. Civil law does not allow any such agreement on" material liability 'as a special type of liability for damage.
99. The limitation of the employee's obligations vis-à-vis the employer and the advantage of the employer as the owner of ČMKOS is therefore considered justified and in particular in accordance with the general principle of proportionality, which can also be considered as part of the constitutionally conformistic principles (the finding of ÚS 38 / 04, the decision collection, Volume 41, the finding No 125, published under No 409 / 2006 Coll., and the finding of ÚS 3 / 02, the decision collection, Volume 27, the decision collection, Volume 105, published under No 405 / 2002 Coll.).
100. Furthermore, the appellants proposed - as stated by ČMKOS - the repeal of the provisions of § 321 (2), § 321 (3), § 321 (4) and (322) of the NZP - the "control power of the trade union organisation '. The proposal challenges the provisions of Sections 321 and 322 of the NZP (the exercise of control by trade unions, the possibility of requiring a binding order to eliminate defects in traffic and, in the event of an immediate threat to life and health, to prohibit the continuation of work, including the possibility of prohibiting overtime and the possibility of the night of the danger to the safety and health of workers) as a provision establishing inequality in the position of employer and trade union organisations associated with the interference in the employer's property rights. ČMKOS points out that the control powers of trade unions (compliance check and health and safety check at work) are among the traditional activities carried out by trade unions as employees' representatives responding to the prevailing massive impact on the working activities of employers. Thus, this" inequality "is, by its essence, an exception to the inequality dominant (social) to which trade unions have also been born in the past to overcome or balance. ČMKOS is convinced that the right of control of trade unions, i.e. § 321 and 322 of the NZP, cannot be qualified as a state administration exercise. This is the exercise of the rights of trade unions under their special law (NZP), which are exercised by trade unions as employees' representatives. Control in these areas such as the exercise of the state administration is carried out by the competent administrative authorities, namely the State Office of Labour Inspection and Regional Inspectorate of Labour according to Act No. 251 / 2005 Coll., on Labour Inspection, as amended, on Mining Authorities of the State Mining Administration (Czech Mining Authority and Circular Mining Authorities) pursuant to Act No. 61 / 1988 Coll., on Mining Activities, Explosives and on State Mining Administration, as amended, on the Protection of Public Health Authorities (the Czech Republic's Chief Sanitary Officer and the Regional Health Stations) pursuant to Act No. 258 / 2000 Coll., on the Protection of Public Health and the Change of Certain Related Acts, as amended, as well as well as supervisory authorities on the Defence, Nuclear Safety, Transport, Communications and Ministry of Interior. Prior to the adoption of the Labour Inspection Act, for all of these checks there was a concise summary title" State Professional Safety Oversight "and consistently differed control of trade unions, on the one hand, and State Expert Safety Oversight, on the other (Belina, M. et al. Labour law. Issue 1. Praha: C. H. Beck, 2001, p. 279). The fact that the Labour Inspection Act introduced the concept of" control "also for the labour inspection authorities (it merged the control activity previously carried out by the Labour Authorities pursuant to Act No. 1 / 1991 Coll., on Employment, with the exercise of state professional supervision over the safety of work under Act No. 174 / 1968 Coll., on State professional supervision over the safety of work) led to the appearance of a shift of the main activity of these authorities from supervision carried out by the State to control. But this pure semantic interpretation is not accurate. The control carried out by all the above-mentioned authorities of the State is a traditional way of supervising the State's safety and health at work, which the State cannot, in any event, be relieved of, since it would thus resign from its constitutional obligations laid down in Article 28 of the Charter (ensuring that workers are entitled to satisfactory working conditions) and in Article 31 of the Charter (ensuring that every citizen has the right to health protection), and cannot be mixed with the control carried out by trade unions. According to the opinion of ČMKOS, this is not a competitive exercise of the control activity towards the labour inspection authorities or all authorities carrying out the inspection on the safety and health sector at work. This is only the exercise of the right of employees' representatives, which is linked to the basic mission of trade unions, as expressed in Article 27 (2) of the Charter - the protection of the economic and social interests of their members and, respectively, of all employees.
101. In the opinion of ČMKOS, Article 3 (1) (d) of the Additional Protocol to the European Social Charter (published under No 15 / 2000 Coll.), which states that the Contracting Parties undertake to take or support measures to enable workers or their representatives, in accordance with national law and practice, to contribute to the setting and improvement of working conditions, organisation of work and the working environment; the protection of health and safety in the undertaking; to organise social and social cultural services and facilities in the enterprise; to supervise compliance with the rules on these matters.
102. In the opinion of ČMKOS, the monitoring of compliance with labour law, internal rules and obligations arising from collective agreements (§ 321 NZP) is based on the fact that trade unions are established to defend the economic and social interests of employees. In this sense, this freedom is guaranteed by ILO Convention 87 and the Charter. The expression of this freedom is also the supervision and supervision of compliance with labour law, internal rules and obligations arising from collective agreements. The purpose of the regulation of the right of control of trade unions in NZP is to lay down minimum obligations for employers towards trade unions on this section so that they can fulfil their mission. This type of control is in no way a control as understood by Act No. 251 / 2005 Coll., on Labour Inspection, as amended, and Act No. 500 / 2004 Coll., the Administrative Order, as amended, because it does not result in a decision affecting the rights and obligations of the employer which the employer is obliged to respect. It is also currently a recommendation to address any deficiencies identified. The law merely regulates the obligation to cooperate effectively with the employer. In this sense, the exercise of this control is a prevention and is also intended for the benefit of the employer; this type of control is not aimed only at the employer, but also at employees.
103. In the opinion of ČMKOS, it is also not possible to agree with the view that the regulation of the control powers of trade unions in the field of labour law is, as a result, unjustifiably favouring trade unions in collective bargaining, thereby undermining the equal position of employers and trade unions in contractual relations and thus interfering with the employer's property rights. On the contrary, the application of control authorisations by trade unions contributes to a balance between a stronger employer and a weaker employee (his protection) in the performance of his work, so their existence does not create unconstitutionality. Here you can call the already cited Article 3 (1) (d) of the Additional Protocol to the European Social Charter.
104. ČMKOS recalls that § 321 of the NZP is taken over by § 22 of the Labour Code No. 65 / 1965 Coll. and that it follows the similar § 20 of the President of the Republic No. 104 / 1945 Coll., on racing and corporate councils, that similar trade union law can be traced before the war in § 3 (1) (a) and (b) of Act No. 330 / 1920 Coll., on racing committees, as amended by Act 181 / 1934 Coll., and finally that there is a comprehensive caselaw in Bohuslav's Judgement of the Supreme Administrative Court of the first Czechoslovak Republic. It can therefore be concluded that trade union law, in the words of § 20 (3) of Decree No. 104 / 1945 of the President of the Republic Coll., "to see whether the economic activity of the plant (s) is carried out in such a way that, while respecting the general benefits of the economic and the applicable management rules, the economic, social, health and cultural interests of the employees of the plant (s) have been fairly satisfied," has been part of our legal order since 1945. However, the basis of the trade union control regulation is already contained in Act No. 330 / 1921 Coll., on racing committees, where Section 3 provides, inter alia, "The racing committees are called upon to defend and encourage the economic, social and cultural interests of employees, in particular to keep an eye on wage and employment contracts and orders, to co-operate in the negotiation of working orders, unless they have been provided for by a collective agreement negotiated between trade unions, and to consult, as appropriate, one member of the race committee, with a view to the participation of a representative of the establishment in the wage and wage schedules of the establishments conducted." On the basis of the above, ČMKOS indicates that the right of control of trade unions to comply with labour law and security rules has been in our legal order since 1921. By doing so, the Act No. 144 / 1920 Coll., on racing and land councils in mining, which also contained similar rights, was adopted only with effect to mining plants.
105. According to ČMKOS, the appellants also require the repeal of the provisions of Section 322 of the NZP governing the control of compliance with the safety and health rules at work. However, this provision (identical legislation contained Article 136 of the Old Labour Code) does not contradict Article 2 of the Constitution. On the contrary, trade union control legislation is based on the rights governed by the Charter and by binding international conventions and cannot therefore be regarded as discriminatory and contradictory with Articles 1 and 3 (1) of the Charter. Therefore, the constitutionality of this provision has not been called into question by the State authorities throughout the entire period of application of the old Labour Code, and especially in the last 15 years of the democratic state. ČMKOS is based here on the fact that the legislator respected the obligations under the ILO Convention 155 on the Safety and Health of Workers and the Working Environment (published under No. 20 / 1989 Coll.) for the Czech Republic. In fact, Article 19 (e) states that "measures should be taken at the level of the undertaking according to which workers or their representatives and, where appropriate, their representative organisations in the undertaking will be entitled to examine all aspects of safety and health related to their work under national law and practice and the employer will discuss these matters with them '. Paragraph 322 of the NZP is then constitutional implementation of the cited article of ILO Convention 155. The control carried out by the trade unions is the fastest and most effective. instrument As can be seen from the explanatory memorandum to the NZP and from a number of theoretical works, there is no doubt that part of the fifth Labour Code (Safety and Health at Work) aims at a single objective - ensuring the constitutional right of a citizen working on health protection (Article 31 of the Charter). As regards the risk prevention and health protection of workers, ČMKOS also recalls Council Directive 89 / 391 / EEC of 12 June 1989 on the introduction of measures to improve the safety and health of workers at work. In accordance with Article 11 (3) thereof," Representatives of workers in the field of safety and health at work shall have the right to ask the employer to take appropriate measures and to submit proposals to it to mitigate risks to workers or to eliminate sources of danger.' and in accordance with paragraph 6, "Employees or their representatives shall be entitled to contact the authorities responsible for safety and health at work in accordance with national legislation or practice, where the employer considers the measures taken and the resources provided to be insufficient to ensure safety and health at work '.
106. In the opinion of ČMKOS, this is a situation in which Community legislation has left a specific question of how, in cases where risks or sources are identified, employees' representatives vis-à-vis the employer are likely to proceed under the responsibility of the Member State. It takes the view that Article 322 of the NZP constitutes a legitimate and constitutional solution to this issue based on the cited article of Council Directive 89 / 391 / EEC. "Who, other than trade unions, as representatives of employees who work with employers and are immediately aware of all the laws and regulations affecting the activities of employers should propose risk mitigation measures on behalf of employees... '. It should be stressed that trade unions are independent of both the State and the employer, as is apparent from ILO Convention 87 and the Charter. This ensures that the decisions of the OSH trade union inspectors are unbiased. Nevertheless, the law provides for an appeal against the decision of the OSH trade union inspector.
107. ČMKOS stresses that the right of control of trade unions on safety and health at work is also a historical right, since before § 136 of the Labour Code No. 65 / 1965 Coll. was contained in § 14 and 15 of Act No. 65 / 1961 Coll., on Safety and Health at Work, and before that in § 5 of Act No. 67 / 1951 Coll., on Safety at Work (note - correct: on Safety at Work). The rules of the first Czechoslovak Republic contained a similar law in § 2 (1) of Act No. 144 / 1920 Coll., on Racial and Regional Councils in Mining, and § 3 (1) (e) of Act No. 330 / 1921 Coll., on Racing Committees. Historically the oldest provision specifically dealing with the control of trade unions on the protection of workers' health is the provision of Section 139 (2) of Act No. 1 / 1888, on the accident insurance of workers, as amended, in force on 1 January 1944, under which "Members of the Racing Committee or of the Racing Board, as the case may be, are obliged to cooperate in the prevention of accidents."
108. ČMKOS does not agree with the applicants' claim that the information obtained during the inspection is used by the trade union in collective bargaining, thus undermining the "balance" of the collective bargaining partners. This is solely about preventing the risks to which the control activities of trade unions are directed and not about the illegal acquisition of information on the employer's problems. The provisions of Section 322 of the NZP are factually closely related to the whole part of the fifth NZP and, in particular, to its Sections 101 and 102 on risk prevention. Pursuant to Article 11 of Council Directive 89 / 391 / EEC of 12 June 1989 on the introduction of measures to encourage improvements in safety and health at work "workers' representatives in the field of safety and health at work have the right to ask the employer to take appropriate measures and to submit proposals to that effect to mitigate risks to workers or to eliminate sources of danger. 'In view of the long experience of trade unions in this area, ČMKOS stresses the exceptional social benefits and importance of this trade union control activity, which, in its consequences in the past, has contributed significantly to protecting the health and the lives of a number of employees. Union control activity is not competitive with" state' control (does not have a sanction); On the other hand, labour inspectorates cannot exercise such control consistently, immediately and to such an extent as trade unions that operate "from the inside 'with a comprehensive knowledge of the situation at the employer's workplace, which is particularly urgent in the event of an immediate threat to the life or health of workers. In particular, this control helps to fulfil the constitutional right to health at work (see Articles 29 and 31 of the Charter).
109. ČMKOS rejects that the legislation contained in Sections 321 and 322 does not respect the principle of proportionality. Both the NZP and the old Labour Code impose a statutory obligation on employees in § 249 paragraphs 1 and 2 and § 251 of the NZP, respectively in § 171 paragraphs 1 and 2 and § 175 of the old Labour Code to warn the employer of the impending damage to his property and the obligation to act to avert the impending damage. As a result of the breach of those obligations, the employer shall have the right to require the staff member to contribute to the compensation to the extent appropriate to the circumstances of the case, unless otherwise possible. The protection of the employer's assets is thus considerably strengthened compared to the general arrangements contained in the IP. It follows that the NZP itself is not consistent with the "weight 'of the protected interests. While the employer's tangible assets are protected by the warning and intervention obligation of the employee (whose failure to comply may lead to liability for damage), the life and health of the employees, which are undoubtedly values higher than the material goods, would not be protected in the same way if the provisions in question were deleted from the text of the law.
110. The application for annulment of the provisions of § 278 (1), § 281 (1), § 282 (2), § 286 (2) and § 287 of the NZP concerning the alleged inequality in the status of employees' representatives, ČMKOS is based on the fact that, within the European Union, the solution to this question is solely for national adaptations. European law does not regulate the relationship between trade unions and corporate councils (in Czech labour law of employees' councils) or other representatives of employees. Directive 2002 / 14 / EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for the information and consultation of workers in the European Community and Council Directive 94 / 45 / EC of 22 September 1994 on the establishment of a European Works Council or the establishment of a procedure for the information and consultation of employees in undertakings operating in the Community and groups of undertakings operating in the Community does not specify which body should represent employees in those matters. Employees' representatives are identified in both Directives as "employees' representatives provided for by national law or practice '. However, it is clear from European legislation that, for the purposes of information and consultation, workers are to be represented in a certain way and it is therefore necessary for employers where a trade union does not operate to have another collective body representing employees in these matters. As regards the scope of information and consultation, the NZP is based on the legislation contained in the European Communities regulations, in particular Directive 2002 / 14 / EC already mentioned. Other directives show the right to information and consultation in connection with collective redundancies, business transfers and safety and health protection at work. The specific manner and scope of the right to information and consultation within the framework thus defined shall again be left to national arrangements. European law thus fully respects national specificities and needs, which also justify different approaches to institutional security of the right to information and consultation in individual Member States. The institute of elected representatives of employees was inserted into the Czech legal order in 2000 by the amendment to the Labour Code by Act No. 155 / 2000 Coll., which was harmonised with European law. The reason for the introduction of these new types of employees' representatives was not so much the social demand for such legislation as the new regulation of workers' right to information and to discuss and ensure access to this information, which responded in particular to the requirements of the EC Directives on social dialogue (collective redundancies, transfer of employers and the European Business Council) and the European Social Charter.
111. According to ČMKOS, the objections set out in the proposal would be justified on the basis of the qualitative (legal and content) equality between trade unions and workers' councils; However, it cannot be inferred from the normative texts. The representativeness of the staff council differs from that conferred by coalition freedom on trade unions; So their inequality does not introduce NZP, it only takes over. It is therefore a misunderstanding that this inequality "is indirectly forced into trade union membership." The representativeness of trade unions normally applies to the whole complex of the world of work, which is beyond the possibilities of staff advice. The Staff Council and the representatives of the staff in the field of safety and health at work are representatives of the staff of the sui generis. They are not other associations within the meaning of Article 27 (3) of the Charter because they are not based on a Member principle, as is the case with trade unions and employers' organisations. Staff members shall not, through such representatives, be freely associated to protect their economic and social interests. The right to associate freely with others to protect their economic and social interests, as enshrined in Article 27 of the Charter, is set out in Act No. 83 / 1990 Coll., on the association of citizens, as amended, which further regulates the right of citizens to establish different associations. Under Section 9a of this Act, trade unions are also formed. However, the law on the pooling of citizens does not apply to the formation of workers' advice and representatives in the field of safety and health at work; These arise under the provisions of § 281 to 285 of the Labour Code, not on the basis of free association with employees, but by the choice of employees. They are therefore elected representatives of employees who represent a mere platform for the exercise of their right to information and consultation and act as an intermediary between the employer and employees to facilitate information and consultation in the undertaking. The Staff Council and the Health and Safety Representative shall not have legal personality. It follows that the establishment of staff councils or representatives in the field of safety and health at work is in no way an implementation of coalition law, as is the establishment of a trade union organisation. The international regulation (ILO Convention No 87) also respects this fundamental difference, as it covers under its protection only "the organisation of workers or employers with the aim of promoting and defending the interests of workers or employers' (Article 10 of the Convention cited). The status of workers' and OSH representatives is therefore necessarily different from that of the trade union, by definition. If staff councils and OSH representatives were to be implemented by the implementation of the coalition law, it would be necessary first to define a coalition which is entitled to make the choice of the OSH board or representative as its institution. This coalition is undoubtedly not and cannot be a collective of employees; there is no one else who is entitled to appoint a staff or OSH representative.
112. If the appellants' arguments were to be accepted, according to ČMKOS it would be necessary to recognise the employees of the employer as a coalition (association). In such a case, however, it would be an infringement of the freedom of association, as the position of an employer's employee arises on the basis of a legal act other than applying for membership of a coalition (willingness to enter into a coalition), on the basis of the will to conclude an employment relationship. CMKOS maintains that the freedom of everyone to associate with others to protect their economic and social interests, guaranteed by Article 27 of the Charter, is therefore not affected by the NZP. The appellants' claim that NZP's legislation does not allow workers' councils and trade unions to act alongside each other is not true. According to the NZP, all employees' representatives may co-exist under certain conditions. As is apparent from the provisions of Paragraph 282 (1) and (2) of the NZP, if the employer has an employee council or OSH representative and then the employer has a trade union organisation, this will not mean the immediate demise of elected workers' representatives. All employees' representatives will act alongside each other until the elected employees' representatives have completed their term of office, and the employer will have to fulfil the obligations imposed on him by law, unless he or she considers otherwise between themselves and the employer. This coexistence between the trade union organisation and the elected representatives of employees may end before the end of their term of office if the employer has a collective agreement of business or if the number of members of the staff council falls to less than three. The conclusion of a collective agreement is a reasonable and objective condition of termination (note: function) of elected employees' representatives. If a collective agreement is concluded, this indicates that the trade union has already acquired sufficient authority. It would then be superfluous for the employer to have two types of employees' representatives, which would have been duplicated in part of the activities. In addition, ILO Convention No. 135 [Note: International Labour Organisation Convention No. 135 on the Protection of Workers' Representatives in the Enterprise and the Relief to be granted to them (published under No. 108 / 2001 Coll. p.)] in Article 5 requires that "in order to ensure that elected representatives are not used to weaken the status of the trade unions or their representatives'. Such abuse could easily occur if both types of workers' representatives could exist together completely without limitation. Moreover, the fact is that the practice has not significantly adopted a new type of employee representatives in recent years. There is still a large group of employers who do not have a trade union, and yet the number of workers' councils, or OSH representatives, is virtually thin.
113. ČMKOS further states that, as regards the different scope of the authorisations granted by the NZP to the trade union organisation and the elected representatives of employees, it is important to note that the trade union is, in contrast to the staff council, or OSH representative, an entity established under the Charter of Guaranteed Coalition Freedom. The trade unions thus have a special position which results from the very nature and purpose for which they were established. Their special status is also related to the specific authorisations guaranteed to them by the law (in particular ILO conventions) as legal representatives of employees. In addition, in order to be able to fulfil these rights (or obligations) properly, they have some additional information (see Section 287) which the elected employees' representatives do not need for their activities. Moreover, as has already been said, the representativeness of trade unions normally applies to the whole complex of the world of work, which is outside the possibility of workers' advice. The trade unions are not merely an intermediary between the employer and employees in the area of information and consultation. The trade union is gifted with its own legal personality and can act in employment relations on behalf of all employees, act for them and defend their interests. The main role of trade unions is in collective bargaining, where, as representatives of the collective of all employees, they negotiate a collective agreement with the employer, which regulates the collective conditions of work, in particular the issue of remuneration. Therefore, the trade unions are given some additional authorisations in § 287 (e.g. the right to information on wage developments, the right to discuss the employer's economic situation, the remuneration system and some others). The participation of workers in corporate governance, i.e. democracy in the workplace, is an inseparable part of a democratic state and cannot be seen as a violation of the employer's property rights. Employees have no doubt the right to participate in the good economic performance of the employer, to which they have contributed in particular. This idea is an integral part of the concept of Corporate Social Responsibility (CSR), namely corporate social responsibility, according to which commercial corporations are obliged to take account of all stakeholders (i.e. even employees) in all aspects of their business operations. This is the ethical behaviour of businesses, which does not only take into account profit, but also contributes to improving the quality of life of workers and their families. The CSR concept is one of the key themes of the European Union and all its members in the long term. ČMKOS points out that the appellants' claim that, by favouring trade unions over other non-trade union employees, indirect coercion to trade union membership is not supported by any relevant evidence nor is it supported by any provision of the NZP. The provision of better working conditions to trade unions than to non-organised workers, which is allegedly causing (or could be) indirect coercion to trade union membership and conflict with freedom of association, would be illegal. One of the fundamental principles of both existing and NZP is the principle of equal treatment of employees and the prohibition of any discrimination against employees and natural persons seeking employment [Paragraph 13 (2) (b)]. The employer cannot therefore treat employees differently on the basis of whether or not they are members of a trade union organisation. Therefore, ČMKOS considers that the legislation in force as a trade union does not give rise to indirect coercion for trade union membership and therefore cannot constitute an infringement of the constitutionally guaranteed right to associate freely, as enshrined in Articles 27 or guaranteed in Articles 1 and 3 (1) of the Charter.
114. ČMKOS also refers to the proposal to abolish the provisions of Paragraph 24 (2) of the NZP as regards the alleged unequal position between trade unions. As regards the requirement set out in the second sentence of Article 27 (2) of the Charter ("Limiting the number of trade unions is inadmissible as well as favouring some of them in an undertaking or sector. '), legal theory recognises that the right of a trade union organisation to act on behalf of non-members can, in the extreme case, be testifying to the most representative trade unions' organisation, i.e.," As regards the second sentence, its provisions are implemented by Act No. 83 / 1990 Coll., as amended by Act No. 300 / 1990 Coll., as amended by Act No. 11. These regulations have been issued in response to the former exclusive position of the Single Trade Union Organisation - the Revolutionary Trade Union Movement (ROH) - and are characterised by an effort to ensure absolute trade union pluralism. This was already reflected in the amendment to the Act on the Association of Citizens (implemented by Act No. 300 / 1990 Coll.), which, although it requires mere registration of trade unions instead of registration, does not mention any defining features according to which they could be distinguished from other associations; As a trade union, it is therefore necessary to consider every citizen organisation which declares itself to be such and is registered as such by the Ministry of the Interior, which gives the possibility of possible abuse. In particular, they are also permitted by the Trade Union pluralism Act, which imposes on employers synergies and codecision with all the trade unions that operate it. Unless otherwise agreed with them and also in the negotiation of corporate collective agreements, all such organisations shall treat it only jointly and in agreement with it, unless they agree otherwise between themselves and it; This allows the employer, by creating a pseudo-trade organisation, to effectively block collective bargaining from a few members. It is therefore considered to apply the so-called principle of representativeness of trade unions, which recognises the right of each trade union organisation to speak on behalf of its members, but the right to act on behalf of non-members gives only the most representative of the trade union, and the law lays down the criteria under which such representativeness is to be established (number of members, proportionality of representation etc.). Such an authorisation - should it be enacted - would not be detrimental to this most representative organisation within the meaning of the Charter if representativeness was regularly verified and every other trade union organisation had the opportunity to apply for it. "(Pavlíček, V., Hřeběk, J., Knapp, V., Kostecka, J., Sovák, Z.: Constitution and constitutional order of the Czech Republic. Episode 2 Law and Liberty. Linde Praha, a. s., Praha 1996, p. 210 - 211).
115. ČMKOS is based in its view on § 24 paragraph 2 of the NZP also based on the fact that even the Constitutional Court, in its finding sp. zn. Pl. ÚS 40 / 02 (Collection of Decisions, Volume 30, Found No 88, Declared under No. 199 / 2003 Coll.) stated that "if the purpose of collective bargaining is to be a mechanism of social communication and democratic procedural resolution of potential conflicts threatening internal peace, it is also associated with the requirement of legitimacy (representativeness)." The Constitutional Court thus stated that earlier legislation based on the absolute pluralism of trade unions unjustifiably favoured the smallest (least representative) trade unions at the expense of the larger (representative) trade unions, which were thus reduced or prevented from applying the economic and social interests that they associate with trade union workers (a trade union organisation with a small membership base, representing a minority of employees, could block collective bargaining against the interest of the majority represented by the representative trade unions) contrary to the purpose of the right to collective bargaining. ČMKOS points out that § 24 (2) of the NZP does not preclude these non-representative collective bargaining trade unions by adjusting representativeness. The law assumes that individual trade unions act jointly and in agreement unless they agree with each other and the employer on a different procedure. The employer can therefore conclude a collective agreement with the most representative trade union organisation only if such an agreement does not occur. By doing so, the legislator followed the purpose and objective of collective bargaining resulting from ILO Conventions (in particular, Conventions 98 and 154). The representativeness determined through the largest number of members of the trade union (s) working with the employer is a clear and objective criterion. It is fully in line with the Constitution. Article 27 (2) of the Charter reads: "Trade unions are established independently of the State. It is unacceptable to limit the number of trade unions as well as to favour some of them in an undertaking or sector. 'This instruction by the Constitution sets out equality of chances, not equality in outcome. Therefore, Paragraph 24 (2) of the NZP does not contradict this article of the Charter, since any trade union organisation has the chance to achieve a result, that is to say to bring together the majority of the trade union employees, or to enforce its views, ideas or interests towards the employer.
116. In the opinion of ČMKOS, the provision of Paragraph 24 (2) of the NZP is therefore in line with the Constitution and does not contradict Article 27 (2) of the Charter. According to Article 6 of the European Social Charter, the State has an obligation to promote collective bargaining. The existing principle that any trade union organisation could veto the conclusion of a collective agreement was in contradiction. The new legislation contained in Section 24 (2) of the NZP is thus an important measure to promote collective bargaining and the conclusion of collective agreements, to which the Member States also commit ILO Convention 154. In this way, the Czech Republic also creates an important precondition for ratification of the Convention. Finally, as regards the appellants' objection that Paragraph 24 (2) shows signs of uncertainty or incompleteness, ČMKOS rejects it, since it would only be possible to bridge the objection at the price of an inappropriately casualistic arrangement.
117. On the further application for annulment of the provisions of § 33 (3), § 73 (1), § 73 (2) of the first sentence, as amended by "If the employer is a legal person other than that referred to in § 33 (3) ', ČMKOS notes that the proposal challenges the new legislation on the appointment and removal of managers in terms of maintaining equal status between employers (employees); The NZP allows the creation of employment by appointment only for" state "employers and thus discriminates against employers so-called private spheres. Contrary to the previous legislation contained in Section 27 (4) of the Old Labour Code, when employment could be established with leading employees by appointment with any employer, only some of them have this option under Section 33 (3) of the NZP, provided that they are headed by an individual body, a leading organisation body of the State, a head of organisational units of the State Organisations, a director of state enterprises, a head of state funds, if they are headed by an individual body, a head of contributory organisations, and a director of a school legal person, unless otherwise provided for by specific legislation. ČMKOS is based on the fact that the Constitutional Court has repeatedly rejected the principle of equality in the past, with the fact that equality of" citizens' cannot be understood as an abstract category, but as a relative equality, which only requires the removal of unjustified differences (e.g. in the Constitutional Court's finding sp. zn. ČMKOS considers that there is no distortion of the equality of intensity required by the Constitutional Court, i.e. there is no disadvantage for "private 'employers compared with" state' employers by allowing them to withdraw their employees from their so-called position even in a situation where that employee has not infringed his employment obligation. This view is based on the legislation contained in Section 73 (2) and (3) of the NZP allowing an agreement of a legal person other than the person referred to in Section 33 (3) with its head of staff (Section 73 (3)) that this employer, too, may remove the manager of the staff member from his post with the consequences set out in Section 73 of the NZP, if it is also agreed that the staff member may give up his post (this provision applies in general, without the establishment of a job relationship with such staff member). The different treatment of "private 'and" state' employers' managers is justified, inter alia, in view of their generally different character from "state 'employers. The NZP provides greater contractual scope to private entities on this issue (as opposed to previous legislation), in line with the requirement to liberalise labour law in the private sector and to increase the freedom of these employers to regulate labour relations. There are also substantive arguments for a derogation between the private and the state sphere. As regards staff covered by the appointment under the NZP, it should be taken into account that they are in particular staff whose employment relationship (service relationship) is regulated by Act 218 / 2002 Coll., on the service of civil servants in administrative offices and on the remuneration of such staff and other staff in administrative offices (service law), as amended. The dominant feature of the employment relationship of civil servants under this law is that a civil servant working for the State is obliged to keep the State as his employer faithful, must comply with statutory conditions, which cannot be eligible for an exemption, subject to increased obligations, in particular the obligation to comply with the service discipline and disciplinary liability, as well as the possibility of transferring him to another service. Civil service legislation contains a legal restriction on certain rights of civil servants, such as a total ban on activities other than the pursuit of the public service, with certain exceptions, on the right to strike and on the restriction of business; the employment (working) conditions of the employees of ministries and other administrative offices are covered by the so-called lustration law (Act No. 451 / 1991 Coll., establishing certain additional conditions for the performance of certain functions in the state bodies and organisations of the Czech and Slovak Federal Republic, Czech Republic and Slovak Republic, as amended). For these reasons, the employment relationship (service relationship) between a natural person (civil servant) and the State will not be established by a bilateral legal act (contract) but by unilateral appointment by the State. Since the effectiveness of Act No. 218 / 2002 Coll. has already been postponed several times, it was justified to maintain at least the legal regime of" appointment' for the heads of "state 'employees, who are still in employment after the effective date of the NZP. For all the reasons set out above, the differentiation between the so-called" state' and "private 'employers, which allows to be achieved by different legal means corresponding to the specific features of" private' and "state 'sectors of the same legal consequence (the removal of a head of staff from his post), in the opinion of ČMKOS, must be considered as justified a different approach which, even if considered as unequal treatment, does not in any way reach the intensity of the Constitutional Court and which would justify the annulment of the above contested provisions of the NZP.
118. ČMKOS also states on the proposal to repeal the provisions of Sections 305 (1) and 306 (4) of the NZP (internal rules) that, according to the applicants, the inequality is due to the fact that the employer can, by internal regulation, regulate the rights of employees referred to in Section 305 (1) only if the trade union does not operate. Otherwise, this provision must be included in the collective agreement or may be transferred to the employer's internal regulation by collective agreement. The appellants consider that this difference in treatment is due to the unequal treatment of employers, causing the adjustment in question to be inconsistent with Articles 1 and 3 (1) of the Charter.
119. They disagree with this interpretation of ČMKOS. It is based on the case law of the Constitutional Court, according to which equality of categories is not abstract (absolute) but only relative, and cannot be understood mechanically and egalitariously (Pl. ÚS 5 / 95 - see above). In the present case, certain differences in treatment are entirely justified. ČMKOS further points out that the application of the argument on the "unequal 'position of employers, in which the trade union organisation operates and does not operate, could, as a result, lead to a challenge to the right of association in trade unions, guaranteed in addition to Article 27 of the Charter and Article 8 of the International Covenant on Economic, Social and Cultural Rights and other international instruments. In fact, the fact that the trade union is involved with the employer shows in many other respects a different position from that of the employer in which the trade union does not operate (e.g. the obligation to negotiate collectively, the obligation to negotiate, the obligation to provide information, etc.). However, with regard to the right to free association in trade unions, such examples of different treatment cannot be regarded as a breach of the constitutionally guaranteed principle of equality, since, in view of the principle of proportionality, at whose point of view the principle of equality must also be understood, there are entirely justified differences. In addition, the appellants state that employers who are not covered by a trade union are subject to less" interference with property rights' and other "employer restrictions' (p. 32) than employers with whom trade unions operate. These claims by the promoters are seen by ČMKOS as an expression of a certain ideological platform, based on the rejection of employees' social rights as an objective basis of business activity, represented by a certain social group in a society that failed to succeed in its vision of regulating labour relations in the legislative process and transfers the conflict of ideas to the Constitutional Court.
120. CMKOS considers that the standard imposing on employers the obligation to regulate the wage, salary and other rights of employees, in particular through collective agreements and not through internal rules, must also be interpreted in the light of the legal nature of these internal rules. These are generally not considered as legal acts by the theory of Czech labour law, so other rules apply to their publication than to legal acts. Since the employer's internal rules govern an unspecified number of cases of the same type (they are binding on all the employees of the employer who has issued the internal regulation) and that the rights and obligations contained therein may be enforceable, the internal rules are considered to be quasi-regulatory acts or acts of a hybrid nature with the characteristics of both the act and the legislative act (Galvas, M. and kol. Labour law. 2nd edition of Brno: Supplement Brno, 2004, p. 447; Belina, M. et al. Labour law. Issue 1. Praha: C. H. Beck, 2001, p. 58).
121. According to ČMKOS, it should be further noted that the nature of the employer's unilateral decision-making on the rights of employees, particularly when it comes to rights as significant as wage and salary rights, is theoretically at least questionable. In private law, in which modern labour law, or part thereof, may be regarded as part of these rights and obligations of employers and employees, it is true that the rights and obligations of its bodies are determined on the basis of the terms of the two entities in their capacity as contracting parties and not on the basis of a unilateral determination. This method of determining rights and obligations is typical of public law, or it was typical of totalitarian law, the reminiscence of which can be regarded as an adjustment of internal rules in Czech labour law. [To compare a different understanding of the substance of the employer's internal rules, the German law in which these measures are considered "unilateral commitments of the employer which he intends to pay salaries, wages and other payments for performance, considered binding on the contract offer for each individual employee. The staff member shall be able to accept the employer's unilateral promise either explicitly or consistently by accepting the payment in question. The promise will then become part of an individual employment contract and cannot be unilaterally cancelled by the employer. At the same time, it is of a collective legal nature and of the same value as the race agreement for its universal validity and can therefore be abolished again by this agreement." (Lexicon work. Lexicon der Arbeit. Friedrich Ebert Foundation, 1994, p. 48)].
122. According to ČMKOS, the fact that an employer does not have unlimited freedom to determine workers' wage and salary rights cannot, in view of the above, be regarded as a restriction of equality or an intervention in the constitutionally guaranteed protection of the employer's property rights. On the contrary, a breach of equality between private-law entities would be contrary if one entity (employer) was granted unilaterally and unrestricted to decide on the fundamental rights of another entity (employee) to exclude and deny core principles of private-law. If, contrary to the old Labour Code, the NZP stresses the strengthening of contractual elements in labour law and the determination of the fundamental rights of employees by agreement with them or with their representatives, this should be seen as an important measure to promote the liberalisation of labour law and the extension of contractual freedom. With this strengthening of contractual elements, the NZP is said to remove the existing unequal position of employees vis-à-vis employers on such important issues as their wage, salary and other rights in employment relations, since wage internal rules or internal rules governing the provision of travel allowances could previously exist, regardless of the existence of a collective agreement, i.e. also of the will of the employees. According to ČMKOS, it is surprising that the appellants, although in other areas they certainly advocate the enforcement of contractual freedom in employment relations, are completely contradictory in the case of the employer's internal rules; they require the employer to have unlimited decision-making powers in respect of the rights of employees, and they wish to give him a very unequal position in relation to the employees.
123. ČMKOS stresses that the obligation to promote and promote collective bargaining results for the Czech Republic from a number of international legal instruments, in particular from the ILO Convention 98 on the Implementation of the Principles of the Right to Organise and Collective Negotiations (Article 4) or from the European Social Charter (Article 6). Therefore, if the legislator respected these bases and the relevant rights of workers and their trade unions to the NZP, this cannot be considered as a breach of equality between employers (justified by the claim that employers who do not operate by the trade union are thus spared certain restrictions on collective bargaining), but as legitimate respect for the constitutional and international rights of workers and their representatives.
124. ČMKOS concluded that the internal regulations issued by the employer should be considered as an institution under the conditions of Czech labour law, whose legal nature is close to a legislative act. As the internal regulation is an act which unilaterally determines rights in employment relations for other bodies (employees), its extradition should be allowed, rather exceptionally, subject to certain conditions. In this respect, ČMKOS appears to comply with the provisions of Paragraph 305 (1) of the NZP, since, in line with the promotion of contractual freedom in employment relations and the right to trade unions and collective bargaining, the basic rule is that wage, salary and other rights of employees are to be regulated in collective agreements, i.e. on the basis of the free speech of employers and workers' representatives. The regulation in the employer's internal regulation is then considered only if the trade union organisation does not operate with the employer and therefore it is not possible to conclude a collective agreement or if the authorisation to implement the relevant regulation is contained in the collective agreement.
125. The proposal also requires the repeal of Paragraph 306 (4) of the NZP, which contains the obligation of the employer with whom the trade union organisation operates to obtain its consent to the issue or amendment of the Conditions of Employment. The argument put forward by the appellants is that, as in the case of Paragraph 305 (1), this regulation causes inequality between employers. As regards this mechanical application of the principle of equality, ČMKOS refers to the view set out above. Since the conditions of employment are the internal rule of sui generis, there is also a lot of reference to the argument put forward in the application for annulment of Paragraph 305 (1) of the NZP. Even in the case of codecision by the trade union on the issue of the Conditions of Employment, this is an expression of the right to trade union association and the promotion of collective bargaining, aimed at achieving and maintaining social reconciliation between employers and employees.
126. ČMKOS also points out that the Staff Regulations are an institution which distributes and specifies the obligations of employers and employees under the legislation in force. In doing so, the relevant trade unions have the right, pursuant to Section 320 (1) of the NZP, to discuss and thus to participate in the creation of draft laws and other legislation concerning the important interests of workers. Paragraph 306 (4), which provides for codecision between the relevant trade union organisation in the implementation and specification of these adopted legal standards on the specific conditions of the employer, thus provides for this authorisation following cooperation between trade unions in their creation. This mechanism, consisting of the fact that employees or their representatives are, to a certain extent, involved both in the creation of the legal standards that apply to them in general and in their specifications for a particular employer, can be considered as a further legitimate expression of the legislator's respect for the fundamental economic and social rights of workers, in particular the rights of trade unions and free collective bargaining. The agreement of the trade union to issue the Regulations also relates to the right of the trade union to monitor compliance with the legislation of the employer. As the Conditions of Employment are an institution specifying the obligations under these laws, the agreement of the trade union to issue it may be considered as an important means of preventing infringements of the legislation of the employer.
127. ČMKOS also does not agree with the appellants' objections - proposing the annulment of the provisions of § 46 and § 61 (1) of the NZP - that those provisions of the NZP, which provide for the employer's obligation to discuss in advance with the trade unions the transfer (§ 46 of the NZP) or the termination or termination of employment (§ 61 (1) of the NZP) even in the case of non-members of the trade union, interfere with the individual rights of employees, in particular their privacy and personal freedom. In an individual case, the trade union organisation carries out its general protection function and is bound by the provisions on the protection of human freedom and dignity. The two provisions under appeal concern situations where the employer is to be significantly affected unilaterally by the employment relationship between him and the employee. The trade union, as a representative of all employees of the employer, acts here to a certain extent as "insurance policy '; trade unions are well aware of both the employer's situation and the employees they represent and can make a relevant statement in both cases. CMKOS believes that this procedure can be avoided not only by unilateral transfer to another job (contrary to the employment contract), but also by the termination of the employment situation or by the immediate termination of the employment situation before they are implemented. To some extent, the trade union is acting as an intermediary that can help find other suitable solutions. It is not possible to remove these trade union authorisations from the context of the overall activity of the trade union in employment relations on behalf of all employees. The activities of the trade unions are closely linked to the trade union's supervisory powers (§ 321 NZP) and the right of the trade union to information and consultation (§ 287 NZP). The law considers these cases of unilateral interference between the employer and the employee to be so serious that it expressly regulates the obligation to discuss these situations with the trade union, in fact a special control of the employer's progress.
128. In the opinion of ČMKOS, these trade union authorisations are the result of a protective function of labour law and are linked to the very nature of the activities of trade unions, which is to defend the economic and social interests not only of their members but also of other employees. The guarantees of coalition freedom (Article 8 of the International Covenant on Economic, Social and Cultural Rights, Article 27 of the Charter) legitimise the defence activity of trade unions, which, without the possibility of active entry into labour law, would be merely proactive. As regards the legitimacy of trade unions not only in relation to their members, but in relation to the sum of all employees, it must be noted that what arose in the historical process as an objective need to defend labour by external forces (state, trade unions) is legalized in the individual and general interest. Moreover, similar authorisations are not unique even in foreign law. In Germany, for example, the company board has even the right to co-decide when transferring employees to other jobs in enterprises where more than 20 employees regularly work with the right to vote, as well as where the rules on the selection of candidates for a job are established (see the Lexicon of Work. Lexicon der Arbeit. Friedrich Ebert Foundation, 1994, p. 170).
129. ČMKOS adds that Paragraph 286 (2) of the NZP (according to which, inter alia, it acts as a non-union employee, in employment relations, a trade union organisation with the largest number of members who are employed by the employer, unless otherwise specified) gives an employee who is not organised by the trade union the opportunity to designate another trade union organisation to act as one in employment relations. In accordance with guaranteed coalition freedom and union pluralism, such an employee may also join another trade union organisation. By discussing with the trade union the transfer of an employee to another job, the statement he intends to give to the staff member, or the immediate termination of his employment, in no way, according to his opinion, does he interfere with the integrity of the person employed and his privacy or his personal freedom. All information which is discussed in these cases and which is thus made available to the trade union is related to the performance of the work (employment ratio of the employee) and is therefore not eligible to undermine the personal freedom and privacy of the employee.
130. However, according to ČMKOS, the employee cannot exclude any trade union organisation from applying the principle of equal treatment in employment relations in view of the nature of the provisions of Sections 46 and 61 (1) of the NZP. A unilateral declaration by the employee that he does not want to be represented in employment relations by any trade union organisation cannot cease to be legally guaranteed by trade unions or the obligation of the employer. The same applies to an agreement between an employee and an employer, the object of which would be to exclude a trade union organisation from the negotiations, since it would be a contract involving a third party who is not eligible.
131. ČMKOS considers, in view of the above argument, that the Constitutional Court should not comply with the proposed application to abolish certain provisions of the new Labour Code.
132. The legal representative of the group of Members (appellants) submitted a reply to the opinion of ČMKOS, in which he discussed extensively with the arguments contained therein. According to the applicants, the opinion of ČMKOS seeks to give the impression that this is not a legal but a political ideological problem which is not the case with the Constitutional Court. The appellants are of the opinion that the substantive constitutional basis in the case at hand is very clear, which results from the proposal itself, and from the fact that ČMKOS does not at all express itself in relation to a number of constitutional problems of the NZP (in the proposal at issue) (namely § 20 NZP, § 342 (1), § 325 and 326 in conjunction with § 491 (2) Oz, § 516 (3), § 572 (1), § 573 and 575 Oz, as well as with § 497, § 517 (1) and § 561 (2) Oz). ČMKOS itself notes, for example, that with the low quality and unfamiliarity of legislation, virtually every more important legislation can be met in the Czech Republic; In fact, it argues that a number of poor-quality legislation creates a standard which, as a result, leads to the fact that, within the framework of a given "standard," the quality of the new legislation cannot be questioned in terms of constitutional law. Such conclusions shall not be identified by the appellants; On the contrary, they consider that the arguments put forward by ČMKOS testify precisely to the fact that the Constitutional Court should deal with the present proposal, since it is only for it to assess the degree of constitutional consistency of each legislation. It is also said wrong that the Constitutional Court is not responsible for dealing with the issue of "need 'of certain legislation in terms of interference with fundamental rights and freedoms. If such intervention takes place, the principle of an adequate (fair) balance between the requirement of the general interest of society and the requirement to protect the fundamental rights of the individual must be respected. Furthermore, it follows from the constant case law of the Constitutional Court and of the European Court of Human Rights (ECHR) that fundamental law or freedom can only be limited in the interests of another fundamental right or freedom or of a public good in such a way that mutual measurement consists of three criteria: suitability, necessity and proportionality (in a narrow sense). In its case law, the Constitutional Court applies not only those criteria but also the postulate of minimising the interference in fundamental rights. The appellants argue that the contested provisions interfere with fundamental rights and freedoms without maintaining the required principle of adequate balance and without duly justifying the necessity and intensity of their intervention. The damage to fundamental rights caused by the contested provisions of the NZP is disproportionate and the legislation thus goes beyond any positive effects which should constitute a public interest in it. As is apparent from the above, as well as from the case law of the Constitutional Court itself, the Constitutional Court is competent (contrary to ČMKOS's assertions) to assess the legal provisions and their constitutionality from this point of view. The proportionality test is among the standard legal instruments of both European constitutional courts and international and transnational courts. The notion that the" need' of the regulation in question and the so-called "proportionality / proportionality 'between the general interest and the intervention in fundamental rights and freedoms is entitled to assess and determine only the legislator without the possibility of review by the Constitutional Court is not considered correct by the appellants.
133. In reply to the opinion of ČMKOS on the individual contested NZP provisions, the appellants stated, in particular, that they never claimed that the cognency of certain NZP provisions constituted the unconstitutionality of the provision of § 2 (1) NZP. However, ČMKOS's claim that, from the point of view of the constitutionality of the provisions concerned, only whether the cognency of the NZP provisions is or is not in accordance with the constitutional principle of contractual freedom and the autonomy of the will can be considered. They stress that they regard as problematic from a constitutional point of view the way in which the cognency and disposition of the NZP is regulated and the degree of cognency that the proposed method of adjustment leads to and does not respect the principle of proportionality. It is argued that the main users of NZP are ordinary employees and employers who are hardly able to use the various interpretative methods and are therefore in principle excluded from being able to determine whether there is a provision from which they can or cannot deviate. In this sense, the Labour Code should be a clear and, within the limits of the possibilities, a simple legal standard that allows for a minimum of interpretative doubts. The ECHR and the Constitutional Court have repeatedly stated that the legislation must be formulated sufficiently precisely to enable each person (if necessary with the help of expert advisers) to adapt his behaviour. Where the determination of the content of a legal standard can only be taken up using the correct interpretation method, it is evident that the principle of the disclosure of the legal status and predictability of the legal decision is undermined and such a standard does not allow each person to adapt his or her behaviour to it.
134. According to a reply from the appellants, the cogent regulation, or its degree, interferes with fundamental rights and freedoms. This is an intervention in contractual freedom as a derivative of the constitutional protection of property law and the autonomous sphere of the individual. Such intervention may take place only in cases justified by a certain public interest, where such intervention is proportionate and necessary, while maintaining the postulate of minimising the intervention in fundamental rights. Otherwise, constitutionality is violated. The fact that the cogent nature of the NZP (contrary to the original Code) does not justify the social need or public interest, also results from the declared legislator's intention, as well as from the expression of ČMKOS itself, where it is said that a degree of liberalisation into labour law has been introduced, which has resulted in a change in social needs and public interest. The appellants do not argue that the NZP should establish an unrestricted contractual freedom in labour law; "merely 'stresses that the use of the concept of delegation, in conjunction with other ways of defining" disposition' in Section 2 (1) of the NZP, leads essentially to the complete cognency of the entire NZP, which does not correspond to the public interest and social needs and the declared intention of legislators; However, it interferes with the constitutionally protected contractual freedom and individual freedom, so it is unconstitutional. It is clear from the wording of Paragraph 2 (1) of the NZP in conjunction with Section 4 of the NZP (the concept of the delegation) that nothing that is "somehow" contained in the Civil Code cannot be agreed unless the NZP expressly refers to it. Therefore, only what is regulated or foreseen in the NZP can be agreed and, where appropriate, the so-called "innominate contract ', whose existence is very limited. Thus, the concept of delegation gives virtually no room for contractual freedom of participants in labour relations.
135. The Replica considers the false claim of ČMKOS that the innovative and non-traditional moment is already an option to apply itself to the regulation of labour relations. As regards the link between labour and civil law, the interconnection of these legal sectors has its historical basis. This link, although on the principle of subsidiarity, is traditional and applied as standard in the vast majority of countries and was also in the Czech Republic, until the adoption of the Labour Code in 1965, when, as a result of the then ideological concepts and the applied economy, the labour legislation and the total separation of labour law from civil law took place. The NZP was intended to correct the break of ties between civil law and labour law, and the aim was to process it in such a way that it was no longer intended to be a completely independent, separate code governing employment relations without links to civil law. In the light of all the above, it was therefore perfectly legitimate to expect that the relationship between civil and labour law would be adjusted by default on the basis of the principle of subsidiarity.
136. The Replica considers that ČMKOS claims that Section 4 of the NZP provides for the possibility of applying the Civil Code to the regulation of employment relations. The concept of a delegation refers only to certain specific provisions of the OZ without reference to other provisions. The implementation of the labour right to civil law is absolutely illusory in this concept of delegation. In essence, it can be said that the NZP should continue to be in its own way, without significant interdependence with civil law, since only those provisions to which the NZP explicitly refers can be used in the Civil Code. The significant disadvantage of the delegation principle is that the provisions of another legal code (governing another area) are to be applied, but not in a subsidiary manner, but equally in addition to other provisions of the NZP, without any link to other provisions of the Civil Code. It is precisely this that causes significant application problems concerning those provisions to which the NZP explicitly refers in the context of the delegation's concept. The concept of a delegation thus creates legal uncertainty and instability as a result of the unfamiliarity and ambiguity of legal standards and contradicts not only contractual freedom, but also the principle of so-called law quality, and denies confidence in law. As a result of the concept of delegation, the provisions of the OZ to which the (cogentially) NZP is referred, without the possibility of further extension of the "application" of the OZ, become part of labour law and de facto NZP.
137. According to the replica of ČMKOS, it does not agree with the interpretation that the participants in employment relations may, under the provisions of § 18 of the NZP in conjunction with § 48 of the IP, negotiate a withdrawal from the contract. In this context, the appellants point out that this legal institute has always been part of the legislation on employment relations and has also been part of the old Labour Code throughout its existence; in relation to employment contracts, an adjustment was chosen which, except in the case where the employee did not take up work, explicitly excluded withdrawal from the employment contract (Section 245 (4) of Act No. 65 / 1965 Coll.). The old Labour Code not only allowed withdrawal for legal reasons, but even for negotiation of contractual reasons for withdrawal. Withdrawal is therefore a standard labour law institution, which has been enshrined in the labour code since its beginning. Therefore, NZP does not represent any change in this respect. According to the NZP legislation, it is therefore still possible to withdraw from the contract for legal and contractual reasons (as has been the case so far). The NZP only - unlike the existing Labour Code - no longer contains (time) restrictions on the right of the employer to withdraw from the employment contract. This therefore suggests that the legislature's intention was indeed to allow the application of Paragraph 48 of the IP also in relation to employment contracts, including employment contracts. In Article 36 (2), the NZP regulates the special legal reason for withdrawal from the employment contract only as one of the legal reasons for withdrawal from the contract provided for by the NZP, and in addition, the participants can continue to agree on other reasons for withdrawal from the contract (including work). Since, contrary to the current Labour Code, the NZP does not contain an adjustment which would limit the possibility of withdrawing from the employment contract only until the employee has entered into work, the NZP's legislation provides that the contract may be withdrawn without time limit (i.e. for the duration of the contract).
138. In their reply, the applicants argue that the fact that the withdrawal from the employment contract is not mentioned in Section 48 (1) of the NZP does not mean that it is not possible to withdraw from the employment contract. They point out that even the "Old Labour Code 'did not include in its provision Paragraph 42 (1) (termination of employment)" withdrawal from the employment contract', which did not mean and was never interpreted as not being able to withdraw from the employment contract. On the contrary, the employment contract could be withdrawn on the grounds set out in Paragraph 33 (2) of the ZP. In the abovementioned (obviously incorrect) interpretation of the CMKOS, it would not be possible to withdraw from the employment contract at all; This refutes both the legislation contained in the NZP and ČMKOS itself, which states in its observations the possibility of withdrawing from the employment contract under Paragraph 36 (2) of the NZP. ČMKOS so denies its argument completely. The appellants therefore conclude that the wording of Paragraph 48 (1) of the NZP (originally Section 42 of the ZP) did not, nor does it continue to, affect the possibility of withdrawal from the employment contract, which the NZP expressly admits and regulates. According to the NZP, the employment contract can be withdrawn for both the legal reasons specified in § 36 (2) of the NZP and in § 49 of the NZP (to which Paragraph 18 of the NZP expressly refers) and § 497 of the IP, § 517 (1) of the OZ, § 561 (2) of the OZ and § 575 of the OZ (to which Paragraph 326 of the NZP expressly refers) and, on the one hand, for reasons agreed by the parties to the contractual relationship. Therefore, if, despite the wording of Section 48 of the NZP, it is possible to withdraw from the employment contract for legal reasons pursuant to § 36 (2) of the NZP - which the ČMKOS expressly admits - there is no reason that the termination of the employment contract cannot take place for other legal reasons or for reasons agreed, as the NZP expressly allows this.
139. The Replica further responds to the provisions of Paragraph 13 (2) (g) of the NZP, according to which "The employer must neither demand nor negotiate a commitment in the employment relationship, except for the competitive clause and the deduction of income from the employment relationship." It raises doubts that "the general principle for labour relations may be lex specialis for another, specific and special provision of labour relations as lex generalis'. ČMKOS also argues in support of the applicability of § 544 paragraphs 1 and 2 and § 545 of the IP, to which it is explicitly referred in § 326 of the NZP, that" a contractual fine may be negotiated to ensure the performance of the employer for the benefit of the employee '. The appellants point out that this interpretation does not, however, rely on the wording of the provisions of Paragraph 13 (2) (g) of the NZP; this does not make it possible to negotiate any obligation in the employment relationship, irrespective of whose obligation should be guaranteed. It therefore follows from that provision that no obligation in the employment relationship can be ensured, i.e. neither the obligation of the employee towards the employer.
140. According to a reply by ČMKOS to the defence of the constitutionality of the contested § 13 (2) (g) of the NZP, it also argues that "the limitation on the guarantee of liabilities is an expression of the protection of the economically weaker party 'and protects" regular staff from being burdened with excessive burdens'. The appellants stress that this is not a "restriction 'of the possibility of collateral, but rather an exclusion of the possibility of securing an undertaking, since wage cuts can hardly be considered a reinsurance institution. They regard this as a radical intervention in constitutionally guaranteed rights and freedoms, which is unprecedented even in a totalitarian regime. Even the old Labour Code made it possible to secure the rights and obligations of employment relations. The objection to the protection of the economically weaker party is not appropriate in this case. This provision of Paragraph 13 (2) (g) of the NZP is intended to protect not an employee in general but an employee who acts illegally. If an employee acts" properly', it does not occur and cannot be used to secure the undertaking and therefore cannot be "affected 'in any way; the collateral itself is not of a penalty nature but is intended to help the creditor to obtain the due performance.
141. The Replica further responds to the content of ČMKOS's comments on the content of the non-familiarity and unpredictability of the contested provisions of § 321 and 322 of the NZP. ČMKOS points out that the right of control of trade union bodies under § 321 and 322 of the NZP cannot be qualified as a state administration exercise. This view, however, refers not only to the new administrative order and the legal theory, but also to the clearly stated opinion of JUDr Josef Vedral (Chairman of the Public Law Commission of the Legislative Council of the Government) published in his article entitled "The scope of the new administrative order '. Vedral notes that Act No 500 / 2004 Coll., the Administrative Regulation, also applies to natural and legal persons exercising their powers in the field of public administration, with the addition that the Administrative Regulation will apply, for example, to the practices of trade unions under Sections 22 and 136 of the ZP (now § 321 and 322 of the NZP)," since in this case, too, the exercise of public administration by the State delegates to legal persons, i.e. administrative proceedings'.
142. It can be concluded from the argument of ČMKOS that ČMKOS has neglected the new regulation of the administrative order and its relationship with the NZP. Since the NZP was issued for the effectiveness of the new administrative order, it had to be processed and issued in accordance with the legislation at that time effective. Therefore, it should not be argued that the NZP is not based on the legislation of the new administrative order, does not comply with it or did not see it; on the contrary, these facts would again demonstrate a contradiction with the principle of so-called quality of law. Under the legislation of the new administrative order (Act No. 500 / 2004 Coll., the administrative authority is the executive authority, the authority of the local authority as well as the natural or legal person or other body, provided that they have been entrusted with decisions on the rights and obligations of natural and legal persons in the field of public administration. The Constitutional Court has previously defined a public authority as follows: "The public authority is primarily exercised by the State through the authorities of the State, legislative, executive and judicial, and may, under certain conditions, also be implemented by other bodies. The criterion for determining whether another entity acts as a public / state authority is whether a particular entity decides on the rights and obligations of other persons, and those decisions are enforceable or whether the State can interfere with those rights and obligations. 'In the view of the appellants, as well as the President of the Public Law Commission of the Legislative Council of the Government, the relevant provisions of § 321 and 322 of the NZP were therefore entrusted to trade unions to exercise state power. This is also said to result from the provision of Section 322 (4) of the NZP, according to which the costs incurred by the exercise of control over safety and health at work are borne by the State. The opinion of ČMKOS refusing interpretation that the right to control and to issue binding orders and prohibitions to trade unions would be the exercise of state administration, thus, according to the applicants again demonstrates the unfamiliarity and unpredictability of the contested provisions.
143. The Replica considers that ČMKOS's surprising view that the binding instruction under § 322 (2) (a) of the NZP and the prohibition of overtime and night work under § 322 (2) (b) of the NZP should be non-binding and should only be understood as a recommendation. They also point out that the control activity and the possibility to impose the measures in question is, inter alia, entrusted to labour inspectors under Act No. 215 / 2005 Coll., on the inspection of work, which is evidenced by the duplication of legislation and the competitive exercise of control activities. In the present case, the employer is then obliged to enter into contractual relations with trade unions as a body exercising public authority over him; he is supervised and entitled to impose binding instructions and prohibitions on him. ČMKOS does not even take into account the possibility of the so-called bullying exercise of trade union law. Therefore, the regulation in question interferes with the right of ownership of the employer, while creating an unequal position between employers and trade unions in their contractual relations; This is entirely unjustifiable, as the Labour Inspection Act is entrusted with the responsibility of labour inspectors (apart from control activities), inter alia, the issuing of decisions on the prohibition of overtime, work at night, the work of workers and young workers, when it is carried out in breach of specific legislation, and the prohibition on the use of workplaces, means and activities that threaten the safety of persons, and the imposition of measures to remedy defects and deficiencies (cf. Section 322 (2) NZP). In addition, since labour inspectors are required to check without delay the defects notified by the trade union organisation and, in particular, because the Labour Inspection Act (as opposed to the NZP) provides for a precise procedure for inspectors (or inspectors) in the exercise of their duties (including control activities), it is considered completely unjustified for trade unions to be authorised to issue prohibitions or impose mandatory instructions on employers. If the exercise of the activities of the trade unions were not qualified (despite the above) as the exercise of the state administration and did not fall under the administrative order (according to ČMKOS), the appellants stress that, in such a situation, the rules on these issues in the NZP should be considered to be wholly inadequate. This is due to the fact that it regulates trade unions' control authorisations and, in particular, the indefinite right of trade unions to impose binding regulations on employers only in a very general manner and does not provide for any more detailed rules and procedures for the exercise of such delegated authorisations. It is not clear who is entitled to act on these issues for the trade union organisation, how they can carry out checks (e.g. after entering the workplace), what documents are entitled to require to carry out checks, how they can demand the removal of defects on the employer and how they can prohibit work, i.e. overtime and working at night; in particular, the nature of the conduct in question is not obvious and the procedure is not regulated at all.
144. The Replica criticises that, moreover (without precedent), trade unions are granted the right to impose binding regulations on employers (and probably employees), which cannot be interpreted as mere recommendations in the light of the wording of Paragraph 322 (2). No international agreement, the law of the European Communities or the Constitution may deduce the right of trade unions to act in a direct manner against the employer in the context of scrutiny, as a superior body with the possibility of imposing binding instructions on the employer and his staff. It is always about the right to information and consultation, at most the right to make suggestions or recommendations to the employer. The argument of ČMKOS with references to international conventions and EC law or the historical legal regulation of our Republic does not justify the contested legislation and the said significant interference in the rights of the employer. When this legislation compares with the European Communities' legislation, it is clear that, in principle, the EC legislation only regulates the right of workers to be informed and consulted, including in relation to health and safety at work. Employees (or their representatives) are not explicitly regulated or foreseen at EC level. CMKOS argues in its observations by Council Directive 89 / 391 / EEC. However, the appellants point out that this Directive only regulates the right of workers (or their representatives) to information on safety and health risks and on protective and preventive measures with an employer and provides for the employer to take appropriate measures to ensure that workers have access to the information provided for (Article 10). Therefore, Article 10 of the directive only guarantees an information obligation. the follow-up Article 11 implies an obligation to discuss issues relating to safety and health at work with workers (or their representatives). On Article 11 (3) of this Directive, the appellants stress that this only provides for the right of employees' representatives to ask the employer to take appropriate measures and submit proposals to it. Article 11 (6) of the Directive then provides for the right of workers to contact the authorities responsible for health and safety at work if the employer considers the measures taken and the resources provided to be insufficient. The right to ask the employer to take appropriate measures or to contact the competent authorities may not be associated with the supervisory powers of trade unions as provided for in the NZP and, in particular, with their authorisation to issue binding prohibitions and instructions. Nor are such trade unions authorised by those international conventions. ILO Convention 87 provides "only" for freedom of association in general and requires States bound by this Convention to ensure that workers are free to exercise the right of trade union organisation; It therefore regulates the rights and freedoms enshrined in our law in the Charter of Fundamental Rights and Freedoms. Therefore, ILO Convention No 87 does not address the control power of trade unions, and therefore neither the control power of trade unions nor their power to impose binding guidelines on the employer can be relied upon by that Convention.
145. On the other part of the opinion of ČMKOS, the applicants stated that the coexistence of employee and trade union councils with one employer is common in other countries. If we compare our legislation with the regulation of Germany, for example, it can be noted that, unlike the contested Czech legislation, which excludes the dualism of workers' and trade unions' councils in Germany (as in one of several countries), dualism of workers' councils and trade unions is foreseen under the Company Collective Agreement Act. The applicants argue that ČMKOS confirms in its observations the inequality of staff councils and trade unions. The established inequality of employees' councils and trade unions of ČMKOS justifies the quality (?) inequality of trade unions and workers' councils resulting from the normative texts (!) and the fact that "the representativeness of the employees' council is different from that conferred on trade unions by coalition freedom '. Such a difference is denied by the appellants as the opinion of ČMKOS does not rely on the constitutional order of the Republic. At the same time, this inequality is based on inequality between workers, and thus also contradicts so-called negative coalition freedom. Nor does the Constitution provide any reason why union-organised workers should have greater authority, advantage and protection over non-union workers.
146. According to a reply from ČMKOS, the so-called coalition freedom does not mean only the (active) right of association, but also the right of free association, of not being a member of any association (such as trade unions) or of such association. Thus, coalition freedom protects not only union-organised workers, but also workers who choose not to join unions. It is therefore not true that only trade unions, or other associations with legal personality, could implement coalition freedom. ČMKOS further argues that trade unions have legal personality, that employees' councils have no legal personality and "are not the implementation of coalition law '. ČMKOS therefore contends that the violation of the right to join freely enshrined in Article 27 of the Charter could not have occurred with the advice of employees and non-organised workers on the grounds that they are not" coalition'. However, according to the reply, since trade unions (and thus trade unions) benefit from the NZP over other employees (trade unions) and their representatives, indirect coercion to membership of trade unions is taking place; that is a breach of the right to join freely, enshrined in Article 27 of the Charter, and it creates an unequal position between trade union workers and other workers. CMKOS does not take into account the fact that employees' representatives also exist with employers as a result of the "implementation" of the Charter of Guaranteed Coalition Freedom, i.e. the choice not to be organised in a trade union. Although it is true that for a certain period of time, according to the NZP, the dualism of trade unions and workers' councils may exist, this dualism is limited in time, until the conclusion of the corporate collective agreement, and the staff council subsequently ceases directly by law. It is clear, therefore, that the NZP does not want to admit the dualism of trade unions and workers' councils and, by its legislation, prohibits it.
147. According to the reply, ČMKOS's further objection is that the conclusion of a collective agreement is a reasonable and objective condition for the demise of staff councils, as it shows that the trade union has already obtained sufficient authority and is therefore unnecessary for the employer to have two types of employees' representatives. This objection is purposeful and ideological. It clearly envisages the conclusion of a collective agreement in a situation where the employer has a trade union organisation and is therefore not an expression of a kind of "authority 'of trade unions. ČMKOS's argument that ILO Convention 135 is quite odd, because, on the contrary, it envisages the existence of trade unions and workers' councils (and any other elected representatives) alongside each other, namely the dualism of workers' councils and trade unions.
148. ČMKOS's objection that the practice of staff councils has not been very accepted is misleading, according to the reply, because employees' councils cannot exist under strict legislation of the NZP if the employer is a trade union. The fact that in practice the staff councils are not numerous is, according to the applicants, the result of the (non-constitutional) legislation contained in the ZP and NZP.
149. The reply stresses that the anti-constitutional principle itself is not the so-called principle of representativeness of trade unions without further action. The provisions of Paragraph 24 (2) of the NZP are regarded by the appellants as unconstitutional precisely because it does not establish a pure principle of representativeness. It is about how this (claimed) principle in the NZP is regulated and how this regulation has consequences (and legal uncertainty). ČMKOS advocates only the so-called principle of representativeness in general, but does not put forward any arguments that justify the legislation. In its opinion, CMKOS did not deal with the fact that the contested legislation did not regulate at all the conditions of an absolute pluralism hybrid and the principle of representativeness (it is not regulated under which conditions an employer can conclude a collective agreement with a trade union organisation and when trade unions can no longer be considered to disagree on a common approach; the question of what happens to collective bargaining and the conclusion of a collective agreement is not addressed if, in the course of collective bargaining, a representative organisation changes, that is, the party to which the collective agreement should be concluded; It is not even clear what procedure is required of the employer if they find that trade unions do not comply, etc.). ČMKOS claims only generally that the objection of insecurity and incompleteness of the provision of Section 24 (2) of the NZP "could only be bridged at the price of an inappropriately casualistic adjustment '. However, if there is absolutely no need for an adjustment to the relevant procedures and rules, it is difficult, according to the applicants, to describe any adjustment to the basic procedures and rules as being Casualistic. They stress that this is an area of absolute importance, decisive for the conduct of collective bargaining, which is a very socially sensitive area. Insufficient and indefinite legislation § 24 (2) of the NZP can, as a result, make collective bargaining itself very difficult and lead to a distortion of social reconciliation, not only in the relationship between the employers - trade unions, but also on the part of the trade unions themselves.
150. The Replica also contradicts the fact that the applicants would challenge the provisions of § 33 (3) of the NZP, § 73 (1) and the beginning of the first sentence of § 73 (2) of the NZP in terms of "mere" absolute inequality. They find the contested provisions unconstitutional on the grounds that the underlying inequality violates another fundamental right, namely the right of ownership. The legislature thus favours a certain group of employers and a certain group of employees without having a favourable approach based on objective and reasonable grounds. The argument of ČMKOS that even "privacy" employers could remove employees from his so-called position is also incorrect. The so-called private / non-state employer does not, unlike the employer of the "state ', have the option of withdrawing its head of staff without further, by law. The NZP not only interferes with the fundamental rights of" private "employers, but also, for no reason, protects employees of" private "employers. The possibility of" concluding an agreement' is not qualitatively equivalent to the possibility of removing a staff member from his post directly provided by law, as an employee will generally not have the will to conclude such an agreement under Paragraph 73 of the NZP, and thus the employer will have no way of changing the manager and manager of his undertaking. In doing so, the NZP limited the possibility for these employers to regulate labour relations. The impossibility of a private employer as owner (as opposed to an employer of the state) flexibly and according to its wishes to determine the managers, senior employees who manage its business, may mean limiting the competitiveness of such a private employer and thus denying equal conditions of competition.
151. According to a reply from ČMKOS, the established inequality associated with interference with the ownership rights of private employers justifies essentially only a general statement of the "different character of state and private circumstances" and the service law, or the nature of the service. However, this does not result from a reasoned report on the government's proposal for NZP or from the process of discussing and approving it. If ČMKOS justifies the established inequality essentially only by the Staff Act, this is incorrect and insufficient, because the range of persons for whom the employment relationship is to be established by appointment pursuant to Paragraph 33 (3) of the NZP does not correspond to the range of persons for whom the employment relationship should be created by appointment under the so-called Staff Act. The applicants stress that Paragraph 33 (3) of the NZP contains a number of employers (i.e. employees) which will not be covered by the Staff Act (such as state enterprises, educational legal entities, contribution organisations). The unjustifiable unequal position between "private 'employers and" state' employers is then the most notable in the case of state enterprises which are a standard part of competition. In this respect, ČMKOS's objections are therefore in complete failure and do not fully substantiate the reasons for the wording of Section 33 (3) of the NZP, nor of Section 73 (1) and (2) of the NZP.
152. The appellants add - in connection with ČMKOS's objection - 'different character' of public and private employees - that, on the one hand, the so-called "service law 'has not yet become effective and therefore it cannot be argued that the content thereof, and, on the other hand, the employees of the so-called private employer should" maintain loyalty' to their employer, "having to comply with statutory requirements' and" comply with labour discipline '. It is therefore not an exceptional requirement only for civil servants (in addition only in the service relationship which is argued by ČMKOS), which would justify the inequality between them and private employees and the inequality between state and private employers.
153. The reply further contests that the applicants would challenge the provisions of Section 305 (1) of the NZP and Section 306 (4) of the NZP only in terms of absolute inequality. Even in this case, the inequality created is not objectively and reasonably justified; ČMKOS did not clarify the reason for the general interest of the employer with whom the trade union is operating, the internal regulation which would govern the wage entitlements of its employees should the wage entitlements and rules not be regulated by a collective agreement. ČMKOS then falsely claims that the promoters are seeking to limit contractual freedom and enforce the unlimited discretion of employers. The fact that the employer would be entitled to issue an internal wage bill in a situation where the wage would not be negotiated in a collective agreement (or where the employer would be operated by a trade union organisation but the collective agreement would not be concluded) certainly does not restrict contractual freedom and does not give the employer unlimited discretion. The employer did not have it according to the previous legislation that made it possible. The appellants further oppose ČMKOS's claim that they are questioning workers' right to free association and the exercise of trade union rights and that they reject workers' social rights. The fact that even employers who operate trade unions could, under the conditions laid down, adjust their employees' wage entitlements (and rules) by internal wage regulations, if this were not reserved for a collective agreement, would in no way restrict the right of workers to join together freely or other social rights of employees.
154. According to the reply, from the point of view of constitutionality, the appellants do not challenge collective bargaining or the employer's obligation to negotiate collectively or in general the employer's obligation to inform the trade union as a representative of the employees of certain, defined facts, etc. In such cases, the intervention is objectively and reasonably justified, which is justified by the general interest and where there is a relationship of proportionality between the legislation chosen and the objective to be achieved. However, the same requirements do not, for example, meet the same requirements as the appellant who is challenged by the prohibition on employers who are active in the trade union, issuing internal wage regulations, or the restriction of the employer's right to issue or change the terms of employment only with the consent of the trade union organisation; there is no objective and reasonable reason for such intervention. In so doing, the appellants do not dispute the preference of a contractual arrangement (for example in a collective agreement) over a unilaterally issued internal regulation. The general principle that contractual entitlement arrangements take precedence over the unilateral establishment of a claim or right always applies; the right of the employer with a trade union organisation to issue an internal regulation does not change anything. There is therefore no reason for the employer to be unable to adjust the employees' claims (going beyond the legal regime) if this was not agreed (or excluded) in the collective agreement.
155. CMKOS, according to the reply, tries to challenge the determination of employees' claims unilaterally by the employer, but omits that Paragraph 113 (1) of the NZP (which is of a mandatory nature) allows for the negotiation or determination of wages (or its components) by collective, labour or other contract, internal regulation or pay. The NZP therefore explicitly allows for a unilateral determination of wages, but this does not mean that this would take precedence over the contractual arrangement. Thus, if employees' wages were negotiated in, for example, a collective agreement, this would mean that the employer would not be able to unilaterally change the amount of employees' wage rights. At the same time, CMKOS ignores the fact that the wage can be set unilaterally by the employer to the employee, not only by internal regulation, but also by pay. It is therefore paradoxical that an employer with a trade union is unable to set wage entitlements unilaterally for employees through an internal wage regulation, but one-sided wage setting is not excluded by the pay ratio in this case. For what reason it is, it is not obvious. The "conflict 'of the contractual arrangement and the unilateral determination of the salary takes place not only for the employer with the trade union organisation, but also for the employer with which the trade union does not operate, in relation to e.g. employment contracts or other contracts and internal rules (or even the above-mentioned wage statement).
156. The Replica also refers to ČMKOS's objection that, in the case of the contested Articles 46 and 61 (1) of the NZP as well as in relation to employees who are not members of any trade union, the general protection function of the trade union is being realised in an individual case and that, therefore, it is not left to the will of the employee whether or not his personal affairs are being discussed by the trade unions. The appellants stress that such an interpretation is not possible because it would not respect the so-called negative coalition right (freedom) of the employee (Article 27 of the Charter), would violate its contractual freedom and would interfere with the privacy and personal freedom of the person - the employee (Article 7 and 8 of the Charter). For example, the subject of "hearing 'may be very sensitive facts of a personal nature relating to a staff member who, for example, is involved in a breach of professional discipline, in his or her medical condition or failure to comply with requirements or assumptions for the performance of work, etc., which the staff member does not wish to communicate to anyone else (or to the trade union organisation) and who are interested in not communicating to anyone (including the trade union organisation) or to the employer. If the employee does not want to be organised or" protected "by the trade union organisation and does not explicitly wish that the information relating to him be made available and discussed with another entity (and its members), such a" protective function "of trade unions cannot be constitutionally justified by any significant interference in the constitutionally guaranteed rights and freedoms and will of the person - the employee (unorganised). In the appellants' view, it must also be considered as a lack of objection that this procedure (in spite of the staff member's explicit disagreement) can be avoided by unilateral transfer and termination of employment before their implementation. According to the appellants," discussion 'does not have that power because it is consistently understood as a form of cooperation. The non-hearing does not result in the termination of a statement or immediate termination of an employment relationship, or transfer to another job, and therefore it cannot be concluded that the termination of a contract, etc., could be prevented. In this case, it cannot be assumed that the employer would generally terminate the employment relationship or transfer employees to another job for no reason, which perhaps ČMKOS is trying to instigate in its observations. Moreover, there is no guarantee that the trade union will always hold the "right" view, on which ČMKOS argues in its own way. The "right' to comment on a particular personal matter of an employee and to discuss it should not be given to trade unions by law without exception and even against the will of the employee concerned. In its observations, CMKOS even explicitly stresses that the employee cannot exclude any trade union organisation; This is contrary to the second sentence of Paragraph 286 (2) of the NZP, which the appellants consider to be available (both in the light of the wording of the conclusion of the sentence" unless otherwise determined 'and the possibility of deviating for the benefit of the employee from the obligations laid down by the NZP as stated in Paragraph 2 (1) of the NZP). The applicants point out that the above claim and the interpretation of ČMKOS again illustrates both the non-familiarity and the unpredictability of the contested provision of § 2 (1) of the NZP and the unjustifiably persistent degree of cogent nature of the NZP. Moreover, where the right of a trade union organisation to negotiate a case is derived from the "representation' of a staff member, the appellants argue that this right cannot be set above the right of the employee himself (unorganised by trade unions) freely to decide whether or not he wishes to be" represented 'in a particular case. Thus, according to the CMKOS interpretation, an unorganized employee would have no opportunity to express and enforce his will against trade unions and to protect his privacy and personal freedom, which cannot be tolerated in a democratic rule of law. It is said that both the interests and the rights of trade unions, not only over the interests of employers as owners, but also over the interests of the employees themselves, are being overstated on this point. In its observations, ČMKOS constantly argues the right to associate freely, but at the same time denies the right not to associate, which is guaranteed by the same article in the Charter and must therefore be protected in the same way as the right to associate.
157. For all these reasons, the appellants - a group of Members - insist fully on their proposal in their reply.
158. The Constitutional Court, in accordance with Paragraph 68 (2) of the Law on the Constitutional Court, first addressed the question of whether the law, the unconstitutionality of which the provision is contested, was adopted and issued within the limits of the Constitution laid down by competence and by a constitutional procedure.
159. This is Act No. 262 / 2006 Coll., Labour Code. In this regard, the Constitutional Court, from the relevant Parliament's press releases, from the data on the voting process and from Parliament's observations, found that the Chamber of Deputies of the Parliament of the Czech Republic had duly approved the draft law at its meeting on 8 February 2006 (Resolution No 2180). The Senate of the Parliament of the Czech Republic then rejected the proposal at its meeting on 29 March 2006 (Resolution No 398). The Chamber of Deputies subsequently held a meeting on 21 April 2006 (Resolution 2409). The President of the Republic did not sign the bill and returned it to the House on 10 May 2006 (Press 1153 / 7). The vote on the bill returned by the President of the Republic took place in the Chamber of Deputies on 23 May 2006 and was approved (Resolution 2647). After the signature of the Prime Minister, the law was declared in the Collection of Laws in the amount of 84 under the number 262 / 2006 Coll. The law in question was therefore adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner.
160. The Constitutional Court first examined whether, in the meantime, there had been no amendment or annulment of any of the contested provisions and whether, therefore, in respect of them, the procedure could not be terminated (§ 67 (1) of Act No 182 / 1993 Coll.
161. The Constitutional Court found that on 1 January 2008 Act No. 362 / 2007 Coll., amending Act No. 262 / 2006 Coll., Labour Code, as amended, and other related laws, became effective. This amendment concerns the contested NZP provisions as follows.
162. The amended provision of Paragraph 33 (3) (which the Constitutional Court does not abolish) reads:
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Regulation Information
| Citation | The Constitutional Court found No. 116 / 2008 Coll., on the application for annulment of certain provisions of Act No. 262 / 2006 Coll., Labour Code |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 14.04.2008 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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