The Constitutional Court found No 207 / 2017 Coll.
The Constitutional Court found of 23 May 2017 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
14.07.2017
207
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. Pl. ÚS 10 / 12 on 23 May 2017 in plenary composed of the President of the Court of Paul Rychetský and judges and judges Louis David, Jaroslav Fenyk, Josef Fialy, Jan Filip, Tomáš Ličovník (Judge of the Chamber of Deputies), Jana Musil, Vladimir Sládeček, Kateřina Šimáková, Vojtěho Šimíček, Milady Tomková, David Uhlíř a Jiří Zemánek on the proposal of the Group 54 Members of Parliament of the Czech Republic, represented by Mgr. Bohuslav Sobotka, § 192 (5) (2), § 286 (4) and § 313 (d) in words, "or in breach of other obligations of employees of the Staff's obligations under § 301a in particular gross manner (§ 301a), (b), p.
as follows:
The application for annulment of the provisions of § 52 (h), § 54 (d) in the words "or infringement of another obligation of an employee laid down in § 301a in a particularly gross manner [§ 52 (h)] ', § 57, § 192 (5) sentence of the second, § 286 (3) and (4) and § 313 (2) (b), including footnote 79, and § 54 (1) of the second sentence of the words" and (b) of the Labour Code, as amended by Act No. 365 / 2011 Coll., and the provisions of the Act No. 365 / 2011 Coll., is rejected.
Reasons
Subject matter
A group of 54 Members proposed to the Constitutional Court the annulment under the heading of those parts of the laws. The proposal is directed against a partial amendment to the Labour Code and the Employment Act, on the basis of which the employer's employees may be given notice of infringement of the temporary employment scheme, while excluding entitlement to unemployment benefit for that reason. A new regulation of the conditions under which a trade union is active with the employer is also being challenged by the parliamentary proposal.
Termination of a member of staff in breach of the scheme and exclusion of entitlement to unemployment benefit
A. Attacked provisions of the Labour Code and the Employment Act and their context
1. Act No. 365 / 2011 Coll., amending Act No. 262 / 2006 Coll., Labour Code, as amended, and other related laws, was supplemented with effect from 1 January 2012 with the new ground of notice referred to in § 52 (h) of the Labour Code. According to him, the employer may give notice to the employee if the employee violates in a particular rough manner the employee's obligation laid down in Section 301a of Act No. 262 / 2006 Coll., the Labour Code, as amended, ("the Labour Code ').
2. In this context, the Act No. 365 / 2011 Coll. in § 54 (d) of the Labour Code provided that the prohibition of termination in the period of protection provided for in § 53 of the Labour Code does not apply to the dismissal of the staff member for other infringements of the obligations arising from the legislation relating to the work carried out [§ 52 (g)] or to the infringement of another obligation of the staff member laid down in § 301a in a particularly gross manner [§ 52 (h)]. This does not apply only if it is a pregnant worker, an employee on maternity leave or an employee or an employee on parental leave.
3. According to the amendment supplemented by Section 301a of the Labour Code, employees are required to comply with the temporary work insurance scheme in the first 14 calendar days and between 1 January 2011 and 31 December 2013 in the period of the first 21 calendar days (the latter time will not be further mentioned for better clarity of the text), as amended, with regard to the obligation to stay at the time of temporary work at the place of residence and to comply with the period and extent of permitted leave under Act No. 187 / 2006 Coll., on sickness insurance, as amended ("the sickness insurance law ').
4. Paragraph 57 of Act No. 262 / 2006 Coll., the Labour Code, as amended by Act No. 365 / 2011 Coll., provides that for the breach of another obligation of an employee laid down in § 301a in a particularly gross manner [Paragraph 52 (h)], the employer may give notice to the employee within 1 month of the date on which he became aware of the reason for the termination, but not later than 1 year from the date on which such a reason for the termination arose. If, during this one month, a staff member who may be regarded as having been in breach of the scheme of a temporary-work insured person is subject to an investigation by another institution, he may be dismissed within 1 month of the date on which the employer became aware of the outcome of the investigation. By 31 December 2011, the provisions of § 57 of Act No. 262 / 2006 Coll., the Labour Code, on the contrary, provided that the employer could not give notice to the employee or immediately cancel the employment relationship for the breach of the obligations laid down in § 56 (2) (b) of the Law on sickness insurance in respect of the temporary employment scheme of the insured person.
5. Paragraph 192 (6) of the Labour Code provides that the employer is entitled to check that a staff member who has been recognised as being temporarily able to work complies with the temporary incapacity scheme of the temporary incapacity during the first 14 calendar days as regards the obligation laid down by the special legislation to stay at the place of residence and to respect the duration and extent of the authorised leave.
6. In accordance with the provisions of Paragraph 192 (5) of the Labour Code, the employer may, taking into account the seriousness of the breach of these obligations, reduce or refuse to provide compensation for wages or salaries if, during the first 14 calendar days of temporary incapacity for work, the staff member breaks the obligation to stay at the place of residence and observe the time and extent of the authorised leave. By Law No. 365 / 2011 Coll. was added to the second sentence of Paragraph 192 (5) in the context of the addition of a new ground of notice under § 52 (h), according to which the compensation for the salary or salary may not be reduced or withheld if, for the same infringement of the scheme, a temporary insured person has been given notice under § 52 (h).
7. In the context of the addition of the described legislation to the Labour Code, Act No. 365 / 2011 Coll. was added to Section 1 of the Labour Code, which regulates its substantive scope, the new provision (e), according to which the Labour Code regulates certain rights and obligations of employers and employees in compliance with the scheme of temporarily competent insured persons under the sickness insurance law and certain penalties for infringements.
8. With the amendment to the Labour Code described above, Act No. 365 / 2011 also amended Act No. 435 / 2004 Coll., on Employment, as amended, ("the Employment Act '), by supplementing the new provision of Section 39 (2) (b), according to which the right to unemployment benefit is not granted to a jobseeker who, during the last 6 months before being entered into the employment register by the employer, has ended up having an employment relationship because of a breach of another obligation of a worker under Section 301a of the Labour Code.
B. Alleged contradiction of the contested provisions of the Labour Code and the Employment Act with constitutional order and international treaties on human rights and fundamental freedoms
9. In its proposal, a group of Members points out that the bill was adopted by the Chamber of Deputies, despite the fact that a number of comments were made negative, including the Legislative Council of the Government. They referred to the explanatory memorandum itself to the amendment to the Labour Code in question, which states, inter alia, that the proposed change in legislation is legally problematic. The reason for this is that, in the case of the adoption of the proposal, it would be necessary to extend the scope of the Labour Code to relationships arising from incapacity for work, i.e. at the time of the obstacle to work, with the benefit scheme being governed by public law. The intended additional possible penalty of the employee could constitute an inequality between insured persons, as the other insured persons will remain in the sickness insurance scheme in the same breach of the scheme.
10. The applicants do not consider the breach of the insured person's obligations to stay at the time of temporary incapacity at the place of residence and to respect the duration and extent of the authorised leave under the sickness insurance law as a breach of the employee's duties (these are not even directly linked to the performance of the work). Paragraph 301a of the Labour Code, enshrined in the context of Section 52 (h) of Act No. 262 / 2006 Coll., the Labour Code, as amended by Act No. 365 / 2011 Coll., "other obligations of employees," considers the appellants to be non-systemic and utilitaristic, aimed only at ensuring that, in addition to the public obligation established by the Law on sickness insurance, the same obligation is laid down in the cogent provisions of the Labour Code (within the meaning of its provision § 4b (1) of the first sentence of the Fine Act; note: in the then applicable version of the Labour Code), solely for the purpose of adjusting the new grounds under Section 52 (h) of the Labour Code under Act No. 262 / 2006 Coll., the Labour Code, as amended by Act No. 365 / 2011 Coll.
11. The penalty for infringing the temporary work scheme of a competent insured person, consisting of the withdrawal or reduction of sickness pay or compensation of the employer at the time of the sickness, is considered adequate and fully sufficient by the applicants. "Alternative" private law sanctions for the same conduct (for infringement of public law), which consists of the possibility of dismissal by the employer, are not proportionate and its use puts the insured persons in an unequal position, as the explanatory note to Act No. 365 / 2011 Coll. Also, another penalty, which in parallel affects a staff member so dismissed for the same conduct, which consists in excluding him from entitlement to unemployment benefit for a period of 6 months following the termination of the employment relationship, provided for in Paragraph 39 (2) (b) of the Employment Act, is not proportionate to the importance of the breach of the obligation under the sickness insurance law and produces anticonstitutional effects.
12. For the reasons set out above, the appellants consider that the contested provisions are contrary to the principle of equality of people in rights (Article 1 of the Charter of Fundamental Rights and Freedoms - hereinafter referred to as "the Charter '), according to which legal restrictions on fundamental rights and freedoms must apply equally to all cases which fulfil the conditions laid down (Article 4 (3) of the Charter). The contested regulation also contradicts the principle of the proportionality of legal interference in the sphere of private autonomy, which is part of the concept of the rule of law (Article 1 (1) of the Constitution of the Czech Republic - hereinafter referred to as the Constitution). This final objection was not specified by the appellants in any way.
13. The contested regulation infringes those provisions of the Charter in particular in relation to the right to work enshrined in international human rights and freedoms treaties. Article 6 (1) of the International Covenant on Economic, Social and Cultural Rights (No 120 / 1976 Coll.), which recognises the right to work, including the right of everyone to the opportunity to earn a living from his or her work freely chosen or adopted, also obliges the signatory States to take appropriate steps to protect that right. Similarly, Article 1 (1) and (2) of the European Social Charter (published under No 14 / 2000 Coll.) obliges the Czech Republic to accept as one of its primary objectives and responsibilities the achievement and maintenance of the highest and most stable level of employment in order to achieve full employment and (b) effectively protect the right of the worker to earn his living in a freely chosen job. On the other hand, the contested regulation of the new grounds of notice, contrary to these obligations by the State, exposes the employee to a disproportionate uncertainty as to whether, even in the event of a negligent or even alleged breach of the scheme of a competent insured person, his actions will be classified by the employer as a gross breach of the public service obligations of the employee (first of all, the obligations arising from the employment relationship) resulting from the unilateral termination of the employment relationship by the employer. Thus, instead of a competent public authority, the employer becomes the person who authoritatively decides to violate the standard of public law - the obligations laid down primarily by the sickness insurance law and thus the right to terminate the employment relationship for that reason.
14. By opening up the scope of the contested regulation to arbitrage on the part of employers in the termination of the employment relationship by denunciation without allowing effective protection of the right to work, the applicants also consider that the above provisions of international agreements are violated.
15. As regards the exclusion of a staff member with whom the employment relationship has been extended by a declaration of invalidity of the scheme of a competent insured person from entitlement to unemployment benefit [Paragraph 39 (2) (b) of the Employment Act], the appellants consider that this provision is contrary to the principle of citizens' right to adequate material security in the event of incapacity for work under Article 30 (1) of the Charter. This legal arrangement also contravenes the obligations assumed by the Czech Republic by ratifying the European Social Security Code (No 90 / 2001 Coll. s. - "the European Code"), according to which each Contracting Party to which Part IV of the European Code (Unemployment Benefits) applies will ensure that protected persons receive unemployment benefits in accordance with the following Articles of this Part (Article 19). According to Article 20 of the European Code, the social event covered includes the cessation of earnings, as provided for by national law, caused by the impossibility of obtaining suitable employment if the protected person is able to work and willing to work. If a covered social event occurs, the benefit must be provided at least to those protected persons who have fulfilled the qualifying period which may be considered necessary to prevent abuse (Article 23). Therefore, if a person dismissed from employment in breach of the scheme has no earnings as a result of the impossibility of obtaining another suitable job, the State must provide it with a benefit, in particular if that person has fulfilled the qualifying period for the granting of unemployment benefit under Sections 39 (1) (a) and 41 of the Employment Act.
Conditions of employment of the trade union with the employer
A. The contested provisions of § 286 (3) and (4) of the Labour Code and their context
16. By Act No. 365 / 2011 Coll. with effect from 1 January 2012, Section 286 of the Labour Code governing the scope of the trade union was supplemented by new paragraphs 1 to 4. The new paragraph 3 provides that a trade union organisation shall operate with the employer and shall have the right to act only if it is entitled to do so under the statutes and at least 3 members are employed by the employer. Under these conditions, only the trade union organisation or its organisational body with the right to act on behalf of the trade union may negotiate and conclude collective agreements collectively. Paragraph 4 provides that a trade union organisation's entitlement to an employer shall be established on the day following the day on which it has notified the employer that it fulfils the conditions laid down in paragraph 3. If the trade union does not comply with these conditions, it shall notify the employer without undue delay.
17. The appellants point out that the employment of a trade union with an employer is bound by the creation and existence of the right of a trade union to an employer, such as the right to collective bargaining (§ 22, 24, 286 (1)), the right to information (§ 38 (3), § 61 (5), § 62 (2), § 101 (4) (b), § 108 (3), § 276 (1), § 287 (1), § 338 (1), § 369 (2), assent (§ 217 (2), § 263 (3), § 287 (2), § 339 (1), § 369 (2), § 369 (2) and co-decision (§ 217 (2))). The work of the trade union with the employer is also subject to specific protection of members of the trade union's bodies from the termination of employment by the employer (Paragraph 61 (2) to (4)).
18. Summarized, § 286 (3) and (4) of the Labour Code set out the formal conditions for the operation of the trade union with the employer, including:
(a) the right of the trade union to operate and act with the employer (must be established in the statutes);
(b) the fact that the trade union brings together at least 3 employees in employment; and
(c) a notification to the employer for whom he is acting that he fulfils the conditions ad) and (b).
B. Opposition of the contested provisions § 286 (3) and (4) of the Labour Code with constitutional order and international treaties on human rights and fundamental freedoms
19. According to the appellants, the conditions for the operation of a trade union with an employer contained in Article 286 (3) and (4) of the Labour Code are contrary to the constitutionally guaranteed right of everyone to join in trade unions for the protection of economic and social interests under Article 27 (1) of the Charter. They also oppose the freedom of association in trade unions, which is guaranteed by international treaties on human rights and fundamental freedoms.
20. The appellants point out that under ILO Convention 87 (hereinafter referred to as the ILO Convention) on Freedom of Association and Protection of the Right to Organise (proclaimed under No 489 / 1990 Coll.), workers have the right to establish organisations at their own choice without any distinction without prior approval and to become members of such organisations on the sole condition that they comply with the Statutes of these organisations (Article 2 of the ILO Convention). Each Member State of the International Labour Organisation to which this ILO Convention applies undertakes to take all necessary and appropriate measures to ensure that workers are free to exercise the right of trade union organisation. National legislation may neither restrict nor be applied in such a way as to limit the guarantees provided for in this ILO Convention (Article 8 (2), Article 11 of the same ILO Convention). The same rights are also guaranteed by Article 8 (1) of the International Covenant on Economic, Social and Cultural Rights and Article 22 (2) of the International Covenant on Civil and Political Rights, Article 11 of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention ') and Article 5 and Article 6 (2) of the European Social Charter.
21. The appellants point out that, if an employer employs less than 3 employees, under the contested legislation, these employees will have a purely formal opportunity to join a trade union, but this trade union will not be able to operate with their employer and exercise the rights attached thereto. The Act therefore creates a formal obstacle to the effective exercise of the rights guaranteed by the Charter and those international treaties.
22. The lack of constitutionality of the contested regulation strengthens the emphasis laid down in Paragraph 286 (3) of the Labour Code on the fact that the trade union only operates with the employer when at least three of its members are in employment with the employer and forgets that employers can also employ employees in employment relationships outside employment. It is not clear whether there are employees in employment, or, in the light of Paragraph 77 (2) of the Labour Code, employees working in a relationship established by a labour agreement or an employment agreement can also be regarded as employees. If the law is interpreted as meaning that, in order to fulfil the conditions of operation of the trade union, only workers in employment and not also employees in employment relations based on non-employment employment agreements, the application of the statutory conditions prevents workers from exercising the constitutional right of association to protect economic and social interests under these agreements. This right is not only for employees in employment, but for everyone.
23. The rights associated with the activity of the trade union with the employer are established in accordance with § 286 (4) of Act No. 262 / 2006 Coll., Labour Code, as amended by Act No. 365 / 2011 Coll., only on the day following the date on which the trade union organization notified the employer that it fulfilled the conditions for its operation. It can be concluded from the legislation that the trade union must not only notify the employer of these facts but also demonstrate them. Employers may, therefore, in particular require the trade union to inform them which three employees are members of the trade union organisation. If the trade union complies with this requirement, there is a danger that the employer will be able to open up employment with these employees to prevent the trade union from operating.
24. In the event that all three employees, in respect of which the trade union organisation notifies the employer that they are members, are also members of the trade union body (so-called trade union officials), special protection should apply to them against the termination of employment, as the International Labour Organisation means. The regulation of the protection of trade union officials from the termination of employment was incorporated into § 61 paragraphs 2 to 4 of Act No. 262 / 2006 Coll., Labour Code. However, it is only applicable if the trade union is working with the employer. However, according to Section 286 (3) of the Labour Code, the employment of the trade union is only due to the fulfilment of the conditions laid down therein and its entitlement to the employer arises only on the day following that on which the employer has notified the employer that it fulfils these conditions, or when it has shown these facts. As a result of the application of the conditions laid down, there is a breach of the protection of members of the trade union body from the employment relationship of the employer.
25. According to the appellants, there is a real risk that the employer will still take up employment with one of the employees who is a member of the trade union on the day on which he was notified that the trade union organisation was operating with him. In this context, the appellants pointed out the special protection of trade union officials against the employment relationship enshrined in International Labour Organisation Convention 135 on the Protection of Workers' Representatives in the Company and the concessions to be granted to them under No 108 / 2001 Coll., hereinafter referred to as "Convention 135 '. The conditions for the fulfilment of the grounds for dismissal and other legal context of the termination of employment shall be assessed on the date on which the notice was served. Trade union officials may not be protected effectively against dismissal by the employer.
26. For these reasons, the appellants are of the opinion that the contested regulation of the conditions of employment of the trade union organisation with the employer infringes both the constitutional and the international legal right of association in order to protect economic and social interests, which cannot be formally seen as a right to become a member of the trade union organisation, but as a right to become a member of an organisation gifted by the rights which the national legislature confers on it in accordance with these guarantees.
Observations of the parties and interveners
27. It follows from the President of the Chamber of Deputies of the Parliament of the Czech Republic Jan Hamáček that Bill No. 365 / 2011 Coll. was distributed to Members as House Press No. 411. The explanatory report on the draft law stated that the proposed regulation is in line with the constitutional order of the Czech Republic, it is democratic and respects the obligations arising from international law for the Czech Republic. The bill was approved by the Chamber of Deputies on 19 September 2011 and forwarded to the Senate, which discussed and rejected it. The Chamber of Deputies voted on the proposal rejected by the Senate on 6 November 2011 and maintained its original bill. The President of the Republic signed the Act on 16 November 2011 and the Act was published in the Collection of Laws on 6 December 2011. From the above, the President of the Chamber of Deputies concludes that the amendment to the Labour Code was adopted after a properly implemented legislative process.
28. The Senate of the Parliament of the Czech Republic commented on the proposal of a group of Members through its President Milan Štěv, who stated that draft Act No. 365 / 2011 Coll. The Senate discussed on 7 October 2011, rejecting the bill after the general debate. The reservations of the individual senators concerned a number of substantive changes proposed in the Labour Code, including an amendment to the employer's new grounds of notice. The reorganisation of the conditions under which a trade union working with an employer will be entitled to act in employment relations (Section 286 of the Labour Code) was not specifically addressed when discussing the Senate press.
29. In its observations on the application of 19 March 2014, signed by Prime Minister Bohuslav Sobotka, the Government informed the Constitutional Court that it would not use its right to intervene under Paragraph 69 (2) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended, as it agrees with the motion of a group of Members. However, despite this favourable position on the proposal, the Government has not even proposed any change to the legislation in this respect. In particular, in the area of social rights, a solution would certainly be more appropriate by legislative means than a possible interference by the Constitutional Court.
30. On the parliamentary proposal for the annulment of the above mentioned amendment to the Labour Code and the Employment Act, the Ombudsman Anna Shabatová also commented on the fact that the contested statement of reasons had nothing to do with the performance of the employment relationship and had nothing to do with the performance of the duties and duties. The contested provisions, according to the Ombudsman, unduly interfere with the rights guaranteed by Article 26 (3) of the Charter. The contested provisions are not capable of fulfilling the conditions of the proportionality test, when a means is to be chosen which limits the constitutional value to the minimum. When considering possible measures, the Ombudsman considers that the funds already in existence lead to the same objective (non-payment of compensation, reduction or withdrawal of sickness benefits, sanctions by the Czech Social Security Administration) and do not undermine, unlike the contested provisions, fundamental rights in their entirety.
31. The contested provisions of the Labour Code are also very vague in comparison with other grounds of notice, for which the Labour Code sets out in relative detail, under which conditions one can be used. The lack of clarity of the conditions of use gives wide scope for the insolence of the employer and its possible abuse. In the long term, the Ombudsman notes the concern of employees about the use of judicial defence options due to the cost, difficulty and duration of litigation. Provided that an employee's breach of the treatment regime is to be punishable by such a strict penalty as the possibility of termination of employment by the employer, it is desirable that the law also lays down detailed conditions for the performance of the employer's control of the treatment regime.
32. The party to the conditions of employment of the trade union with the employer has fully identified the Ombudsman with the legal arguments put forward by the appellants and stated that, if Paragraph 286 (3) of the Labour Code provides that at least three members, if they are employed by the employer, are required to operate the trade union and the possibility of acting on the part of the trade union, are required to completely ignore that employees in other employment relationships may also be involved with the employer. The right of association to protect its economic and social interests belongs to everyone. Employees engaged in activities other than employment may not be excluded. Article 27 (3) The Charter is designed to limit the activities or formation of trade unions only under the earliest conditions. The right of trade unions to their freedom of action is essentially not subject to any restrictions other than those necessary in a democratic society to protect the security of the state, public order or the rights and freedoms of others. By establishing the legal conditions of three persons in employment, the right of employees other than employment to act to protect their economic and social rights is denied, which affects the very essence of the law enshrined in Article 27 of the Charter. For the reasons set out above, the Ombudsman expressed its opinion on the annulment of the contested legislation.
Text of the contested provisions
33. Paragraph 52 (h) of Act No. 262 / 2006 Coll., Labour Code, as amended by Act No. 365 / 2011 Coll., reads as follows:
"The employer may give notice to the staff member only for the following reasons: if the staff member violates, in a particular gross manner, the staff member's obligation as set out in Section 301a. '
34. Paragraph 54 (d) of Act No. 262 / 2006 Coll., Labour Code, as amended by Act No. 365 / 2011 Coll., reads as follows:
"The prohibition of termination pursuant to Paragraph 53 shall not apply to the dismissal of the staff member in respect of any other breach of the legislation relating to the work carried out [Paragraph 52 (g)] or to the breach of another obligation of the staff member laid down in Section 301a in a particularly gross manner [Paragraph 52 (h)]; This shall not apply if it is a pregnant worker, an employee on maternity leave or an employee on parental leave. ';
35. Paragraph 57 of Act No. 262 / 2006 Coll., Labour Code, as amended by Act No. 365 / 2011 Coll., reads as follows:
"(1) In order to breach the other obligation of a staff member laid down in § 301a in a particularly gross manner [§ 52 (h)], the employer may give notice to the staff member only within 1 month of the date on which he became aware of that ground of resignation, but not later than 1 year from the date on which such notice was given.
(2) If, during the course of the 1 month period referred to in paragraph 1, the conduct of a staff member in which an infringement of the temporary work of an incapacitated insured person may be regarded is subject to an investigation by another institution, the notice may be given within one month of the date on which the employer became aware of the outcome of the investigation. "
36. Paragraph 192 (5) of Act No. 262 / 2006 Coll., Labour Code, as amended by Act No. 365 / 2011 Coll., reads as follows:
"Reimbursement of wages or salaries may not be reduced or withheld if, for the same infringement of the temporary work of an incapacitated insured person, the staff member has been given notice pursuant to Paragraph 52 (h). '
37. Paragraph 286 (3) and (4) of the Labour Code reads as follows:
"(3) The trade union organisation shall operate with the employer and shall have the right to act only if it is entitled to do so under the statutes and at least three of its members are employed by the employer; only a trade union organisation or its subsidiary organisation may negotiate and conclude collective agreements collectively, provided that it is entitled to do so by the trade union statutes.
(4) The rights of the trade union organisation with the employer shall be established on the day following the day on which the employer has notified that it fulfils the conditions laid down in paragraph 3; if the trade union organisation ceases to comply with these conditions, the employer shall notify the employer without undue delay. ';
38. Paragraph 313 (2) of Act No. 262 / 2006 Coll., Labour Code, as amended by Act No. 365 / 2011 Coll., reads as follows:
"Indication of the amount of the average earnings, whether the employment relationship, the employment agreement or the employment agreement have been distributed by the employer because of a breach of the obligation arising from the legislation relating to the worker's work carried out in a particular gross manner or because of a breach of another obligation of the employee under Paragraph 301a in a particular gross manner, and the other facts relevant to the assessment of entitlement to unemployment benefit 90), the employer shall, at the request of the employee, indicate in a separate certificate. '
39. Paragraph 39 (2) (b) of the Employment Act, including footnote 79, reads as follows:
"The entitlement to unemployment benefit shall not be granted to a jobseeker with whom, during the last six months before the employer's registration of jobseekers, an employment relationship has been terminated due to a breach of another obligation of a staff member under Section 301a of the Labour Code in a particularly gross manner. '
footnote 79 refers to "Paragraph 52 (h) of the Labour Code '.
40. Paragraph 54 (1) of the Employment Act reads as follows:
"Where it is found, in addition, that unemployment benefit or retraining aid has been wrongly refused or awarded or granted or granted at a lower amount than that in which it belonged, or granted from a later date than that from which it belonged, it shall be granted or increased subsequently and shall be paid. Similarly, where the competent authority has decided that the termination of an employment relationship or other employment relationship in the case referred to in paragraphs (a) and (b) of Paragraph 39 (2) is invalid, the procedure shall be followed. ';
Conditions for the applicant's active legitimacy
41. The proposal to abolish the marked provisions of the Labour Code and the Employment Act was submitted by a group of 54 Members of Parliament of the Czech Republic and thus in accordance with the conditions contained in the provisions of § 64 paragraph 1 (b) of Act No. 182 / 1993 Coll., on the Constitutional Court. In the present case, it can therefore be concluded that the conditions of active legitimacy on the part of the applicant are met.
Abandonment of oral proceedings
42. The Constitutional Court did not expect further clarification of the case from the oral hearing, therefore it waived the provision of § 44 of the First Law No. 182 / 1993 Coll., on the Constitutional Court, as amended.
Constitutional conformity of the legislative process
43. The Constitutional Court, in accordance with the provisions of § 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., assessed whether the contested provision was adopted within the limits of the Constitution laid down by competence and by the constitutional procedure. This question has already been examined by the Constitutional Court in the proceedings under the sp. zn. It cannot therefore be concluded that the condition of constitutional conformity of the legislative process has been fulfilled.
Meritorial review
A. Terms of trade union with employer
1. Constitutional bases
44. The Charter of Fundamental Rights and Freedoms makes a distinction between the general law of association (Article 20 (1) and (2) of the Charter) and the separate right to associate freely with others for the protection of their economic and social interests (Article 27 of the Charter), which constitutes the so-called coalition freedom; Therefore, a special form of association law to protect economic and social interests (the coalition thus means "in particular employee and employer associations... in order to express, promote and defend their own interests in creating working, social and economic conditions' - cf. Pavlíček, V. et al. Constitutional law and state. Episode II. Praha: Leges, 2015, p. 646). The instrument of distinction between the general and the special law of association (in addition to coalition freedom, there are other specific types of association rights, such as association in political parties or association in churches and religious societies) has its main purpose in the different logic of these rights:" whereas, in the case of general association law, there is, first and foremost, respect for the free sphere in which individuals can achieve common objectives through joint action (i.e. it can be said that it is a classic status of negative in the Jellinek sense), "it represents, in particular, the form of a social self-government 'whose task is to represent public interests in terms of fulfilment of the social state's working conditions, and it must therefore indirectly act against other private entities to be sufficiently respected by their partners (in particular employers). In this sense, the status of positive is far more marked for coalition freedom, and it is not by chance part of political rights, but economic and social rights" (Šimělek, V. "Joining right." In: Wagner, E., Šimělek, V., Langášek, T., Pospíšil I. et al. Charter of Fundamental Rights and Freedoms: commentary. Praha: Wolters Kluwer ČR, a. s., 2012, p. 477). In this sense, therefore, the Charter's scheme differs from that of the Convention or of the International Covenant on Civil and Political Rights ("MPOPP'), which refers to coalition freedom (i.e." the right to establish trade unions in defence of their interests' and "the right to establish trade unions' to protect their interests') in the context of the general law of association. However, even for coalition law, as with all communication fundamental rights, it can be borne by both individuals and trade unions (or, in the case of other communication rights, by associations). It can also be distinguished between a positive and a negative aspect of this right, consisting on the one hand (a) in the creation of guarantees for its implementation and (b) in the impossibility of ordering someone to become a member of a trade union organisation. As the nature of Article 11 of the Convention has been judged by the European Court of Human Rights (" the ECHR '), its essential purpose "is to protect individuals against unlawful interference by public authorities in the exercise of the rights protected by this Article, national authorities may under certain circumstances be obliged to intervene in relations between private entities by taking reasonable and appropriate measures to ensure the effective consumption of those rights' (see Sørensen and Rasmussen against Denmark, Grand Chamber judgment, 11.1.2006, 52562 / 99 and 52620 / 99, § 57). According to the ECHR, there are positive double-type obligations - a positive commitment to ensure the rights of individuals and trade unions vis-à-vis employers (cf. Wilson, the National Union of Journalists and others against the United Kingdom, judgment, 2.7.2002, No 30668 / 96, § 41) and a positive commitment to protect individuals against abuse of power by trade unions (Cheall v United Kingdom, Decision, 13.5.1985, No 10550 / 83, ASLEF v United Kingdom, judgment, 27.2.2007, No 11002 / 05, § 43).
45. The Charter protects the right to join freely to protect economic and social interests and the independence and equality of trade unions. With these provisions, the guaranteed coalition freedom is a specificity of freedom of association and covers the whole complex of trade unions and employers' unions. In doing so, the trade unions can be seen as employment organisations, which are aimed at defending the interests of their members. In order to fulfil the coalition freedom, certain fundamental principles must be applied, in particular "the freedom of membership and the prohibition of discrimination for membership of a particular coalition, whether that membership would constitute an obstacle to employment or, on the contrary, the necessary condition for its exercise... or the constitutional principle of separation between associations for the protection of economic and social interests from the State '(Pavlicek, V. et al. Episode II. Praha: Leges, 2015, p. 647).
46. According to the second sentence of Article 27 (2) The Charter is inadmissible to limit the number of trade unions as well as to favour some of them in an undertaking or sector. The prohibition of limitation of numbers and advantages applies not only to the State but to everyone, i.e. in particular to employers. It is thus possible to talk about the principles of trade union pluralism and equality. These principles are implemented in the Labour Code, in the provisions of § 286 (5) and (6) (according to paragraph 5, "if there are more than one employer, the employer is obliged, in cases involving all or more employees, where such a law or specific legislation requires information, consultation, consent or agreement with the trade union organisation, to fulfil those obligations in respect of all trade unions, unless otherwise agreed with them, to inform, discuss or give consent '; Paragraph 6 then states that" if there are several trade unions working with the employer, the trade unions of which the employee is a member shall act as employees in employment relations. A trade union organisation with the largest number of members who are employed by the employer shall act as non-trade union employees, unless otherwise specified by that employee. ")
47. In relation to the principle of trade union equality, the Constitutional Court stated that "the principle of freedom of trade unions implies equality between trade unions in such a way that no trade union organisation operating with an employer may be favoured before others, even in view of the number of employees it brings together, or in view of the number of members of trade unions" (paragraph 264). In this finding, the Constitutional Court examined, inter alia, the constitutionality of Section 24 (2) of Act No. 262 / 2006 Coll., the Labour Code, in the version in force at the time (this provision provided that "if there are several trade unions' employers, the employer is negotiating a collective agreement with all trade unions; trade unions shall act and deal with the legal consequences for all employees jointly and in agreement, unless otherwise assessed between themselves and the employer. If the trade unions disagree on the procedure set out in the first sentence, the employer is entitled to conclude a collective agreement with the trade unions or multiple trade unions with the largest number of members of the employer '), concluding (paragraphs 265 and 266) that" the Charter of Fundamental Rights and Freedoms in its Article 27 (2) is clear; any advantage conferred on one of the trade unions in the undertaking or in the sector at the expense of others shall be inadmissible. The law enshrined here is not even restricted by the implementing act (cf. Article 41 (1) of the Charter and contrario). The solution to the potential conflict situation foreseen in § 24 (2) of the Second Labour Code (principle of majority, representativeness) cannot therefore be accepted from a constitutional point of view. It remains to be recalled that the basic constitutional principle of equality shows, in particular, that the distinction between access to certain rights must not be arbitrary and, above all, different bodies in the same or comparable situation must not be treated differently without objective and reasonable reasons. This can be extended, within the meaning of the article in the Charter of Fundamental Rights and Freedoms in question, to the right of a coalition. Therefore, the Constitutional Court has testified to the appellants' objection that the contested provision of Paragraph 24 (2), second sentence, contrary to Article 27 (2) of the Charter and Article 3 (2) of the ILO Convention 87 favours certain trade unions to the detriment of others. It is not just about favouring an organisation with the largest number of members (principle of majority), there are more possible combinations. This also infringes Article 1 (2) of the Constitution of the Czech Republic, as amended by Constitutional Act No. 395 / 2001 Coll. (so-called Euronovela of the Constitution). "
2. Own review
48. According to the appellants, the newly established rule that "a trade union organisation operates with an employer and has the right to act only if it is entitled under the statutes and at least 3 of its members are employed by the employer '(Section 286 (3) of the Labour Code). That legal rule is intended to unduly restrict the number of trade unions in the undertaking. Reservations are detailed in points 19 to 22 above. The Constitutional Court has not testified to these reservations. The starting point was the question of how the general principles of the regulation of the associations or (by their nature) of the group rights to which they are entitled could apply to trade unions.
49. Pursuant to Article 214 (1) of Act No. 89 / 2012 Coll., Civil Code, at least three persons of common interest may establish the association as a self-governing and voluntary union and join it. The principle of association (association) of at least three people or legal entities in the common private or public interest has been one of the main principles of federal law since time immemorial (cf. Bílková, J. New Federal law on questions and answers. Praha: Leges, 2014, p. 28). This already follows from the fact that the association is established for the purpose of meeting the common interest and therefore it is excluded from being established by an individual. The Constitutional Court notes that the principle of trade union equality is not yet affected by the need for the legislator, as in the case of associations, to operate and act with the employer only if the nature of a voluntary association is at least three persons.
50. As stated above, the purpose of association in trade unions is to protect and promote the economic and social interests of workers in the enterprise or sector. The appellants' objections were directed towards the level of the undertaking (not the sector), as the contested provision is intended to unduly restrict the number of trade unions in it. The Constitutional Court considers that the exercise of the right of free association with other trade unions in order to protect economic and social interests (i.e. the actual activity of trade unions) is, in its nature, a group right for which it can be used as a whole collectively. Group rights can be understood both as being corporate, i.e. the carrier of the group and as being collective, i.e. as rights shared or jointly held by individuals forming a group. Whereas for the first (corporate) concept it is already apparent from the nature of the case that the holder of rights cannot be an individual, even for the second (collective) concept, that the individual cannot be an individual independent of the membership of a particular group (in the national constitutional dogma we would probably talk about collective rights in the first concept, in the second concept about the second individual rights collectively exercised). Thus, both the first and the second concept of group rights cannot be the rightholder in itself. In the case of group rights, it is only possible to recognise them if the group requesting recognition has a sufficient staff base, or if it participates in sharing or joint holding rights corresponding to the number of individuals. Only then can the group be respected and protected by the public authority in its quality of the legal entity. Even because of the need for easy creation of the will of the group concerned, the European tradition has agreed on the need for at least three people (in the spirit of classical Roman parallels tres faciunt collegium). However, this cannot be regarded as a restriction of the fundamental right within the meaning of Article 27 (3) of the Charter, but as a restriction arising from the nature of the law in question (to be collectively associated with others in trade unions for the protection of economic and social interests, or the right to their own activities in this way). Nor can this be considered a restriction on the number of trade unions within the meaning of Article 27 (2) of the Charter. Nor can it be considered to intervene in Article 11 of the Convention, Article 22 of the MPOPP, Article 8 (1) of the International Covenant on Economic, Social and Cultural Rights, Article 5 and Article 6 (2) of the European Social Charter or of the International Labour Organisation Convention 87 on Freedom of Association and Protection of the Right to Organise and Protection of the Rights of the Union (published under No 489 / 1990 Coll.) and the Convention of the International Labour Organisation No 98 on the Implementation of the Principles of Organising and Collective Negotiations (published under No 470 / 1990 Coll.), in respect of which the arguments of the appellants are unrelated, as follows from this part of the Found. However, another situation would arise if the legislator set a disproportionate limit on the number of members of the trade union within the company. In other words, the minimum number of members of a trade union organisation at company level is not in itself contrary to ILO Convention 87, but this threshold must be set at a reasonable level so as not to prevent the formation of trade unions (see the Collection of Decisions and Principles of the Committee of Trade Union Liberties of the International Labour Organisation, Report No 336, Case No 2332, § 703).
51. The Charter of Inadmissibility concerning the limitation of the number of trade unions and the advantages of some of them in the undertaking and in the sector should be borne in mind that it foresees this (1) for trade unions already established (i.e. for already established groups) and (2) not yet established (rather) yet recognised by the State. The sentence of the second article of the Charter can therefore be interpreted in a dual way from a temporal point of view. Firstly, it precludes the restriction of employees who would (in an undertaking) seek to initiate the formation of a trade union organisation (Article 27 (2), second sentence, in conjunction with Article 27 (1) of the Charter). Second, it is forbidden to disadvantage already established trade unions. First of all, the legislation in question does not constitute an intervention in the very creation of trade unions. In its case, there can be no infringement of the individual right of association in trade unions (Article 27 (1) of the Charter); The freedom of expression of workers in the workplace, aimed at convincing other workers to join forces to protect and promote their interests in trade unions, remains unaffected. Employees are given the opportunity to join trade unions and it is entirely up to their free choice whether they will make use of it or not. Thus, for example, two employees can become members of a trade union organisation, but in terms of working with the employer, it is crucial whether the employees have been brought together in at least three persons. The requirement of membership (at least) of three employees in the trade union thus provides for the need for interaction between employees as a prerequisite for the recognition of the legal consequences of the actions of the associated persons. Only acts of a trade union in which at least three persons are brought together can be legally relevant in the company, because only in this way can we talk about representing collective interests. In the opinion of the Constitutional Court, if the employer is to have certain obligations towards the trade union, it makes sense to grant the relevant authorisations only to those organisations which have a sufficient staff base which is a prerequisite for the implementation of group rights. Their implementation cannot be assessed in isolation from the legitimate interests of the employer (e.g. from his right to do business). In the opinion of the Constitutional Court, the contested legislation will thus stand. The employer's obligations in relation to trade unions can only be a precondition for collective action by employees. It would not be meaningful to grant extensive authorisations to a trade union that workers do not want to join. If the trade union is to have relevant rights, it must act as a group, even at the company level.
52. According to the Constitutional Court, therefore, in the case of the contested legislation, there is no infringement of the group law of the trade union organisation (Article 27 (2) of the Charter). In order for a trade union to have certain rights against an employer at all, it must first be of appropriate quality. In order to hold group rights, it must have a sufficient staff base, or it must establish a group within the enterprise, so that it can subsequently claim group rights (in relation to the employer). Since the contested legislation does not affect the situation where the necessary personnel base is present, it is not an intervention in Article 27 (2) of the Charter. On the contrary, it could be regarded under certain circumstances as an abuse of that right if only an individual held the exercise of group law, as could be the case under previous legislation. This enabled a trade union to operate with an employer if at least one member of the trade union was employed. It could be a union organization set up with another employer. Despite the very strong obligation of information from the employer to the trade union organisation, the mutual position of these employers, for example, in the field of competition, was not taken into account. The new, contested legislation corrects the inadequacy of previous legal regulation, and it is crucial from the point of view of the Constitutional Court that the chosen solution does not deviate from the limits of constitutionality. Nor is it contrary to Article 11 (2) of the Convention, since the legal restriction in question may be considered necessary to protect the rights and freedoms of others, namely to protect the right to engage in business with employers (Article 26 (1) of the Charter).
53. Nor does the Constitutional Court consider that the contested provision applies only to employees in employment. As mentioned above, the contested Section 286 (3) of the Labour Code sets out the necessary personnel basis for the possibility of a trade union being held. Its stability is also desirable in terms of time. This can only be ensured for employment workers. Both the agreement on the execution of the work and the agreement on the working activities characterise the maximum range of 300 hours in the calendar year (Sections 75 and 76 (2) of Act No. 262 / 2006 Coll., the Labour Code, as amended by Act No. 365 / 2011 Coll.), which does not fulfil this assumption of the stability of the personnel base. It is not in any case that non-employment workers cannot be represented by a trade union organisation, but that they should be required to act as a stable and locally identifiable group. In addition, the broad rights of trade unions are primarily aimed at protecting the more complex interests of employees in employment, which is to be used by the employer in particular for the performance of the tasks (Section 74 (1) of Act No. 262 / 2006 Coll., Labour Code). It should be pointed out that the issues that trade union organisations normally deal with with employers must be negotiated individually with non-employment workers. In each contract separately. As is apparent from Paragraph 77 (2) of the Labour Code, these are the most important elements: transfer to another work and transfer, temporary assignment, severance payments, working hours and rest periods, labour barriers, leave, termination of employment, remuneration and travel allowances.
54. Other objections were raised by the appellants against the wording of § 286 (4) of Act No. 262 / 2006 Coll., Labour Code, as amended by Act No. 365 / 2011 Coll., (paragraphs 23-26 above). The rights attaching to the activities of the trade union with the employer shall be exercised only on the day following the date on which the trade union organisation has notified the employer that it fulfils the conditions for its operation. Not on the day of such notification. The appellants therefore expressed concern that the employer may, on the day of notification, untie employment with employees - members of a newly operating trade union organisation - in order to prevent its operation, or with a member of the trade union body, thereby undermining its increased protection. Pursuant to Article 1 of Convention No 135, workers' representatives in the undertaking are to "enjoy effective protection against any measures which might harm them, including redundancies, which would be motivated by their status or activities as workers' representatives, by their membership in trade unions or by their participation in trade union activities if they act under the applicable laws, collective agreements or other contractual arrangements'.
55. The appellants do not challenge the provision in question for a direct conflict with the constitutional order, but for a possible abuse of a right that could weaken the protection of trade union officials or prevent the operation of a trade union organisation with a particular employer. It is therefore no longer a restriction of trade union law, but a possible lack of support for such a right. However, the scope for promoting the right of trade union association and ensuring the protection of trade union officials is already wide and its completion is by the legislator. The above-mentioned Article 1 of Convention No 135 generally lays down the right to protection of "workers' representatives'. It is for the generality of the enshrined rights that other Articles 4 and 6 of Convention No 135 leave the determination of the types of workers' representatives who will have the right to protection and material possibilities provided for in Convention No 135 to national legislation, collective agreements, arbitration or judicial decisions. Ensuring the implementation of Convention 135 is then entrusted to national legislation, collective agreements or any other way that corresponds to national practice. We will find similar arrangements in other international documents mentioned above.
56. Protection of trade union officials is enshrined in the Labour Code in Paragraph 61. Its paragraphs 2 to 4 provide that for a member of the trade union body who is working with the employer, at the time of his or her term of office and within a period of 1 year of his or her termination, the employer shall be obliged to request prior consent from the trade union organisation to give notice or terminate the employment relationship immediately. Where a trade union refuses to give its consent pursuant to paragraph 2, the termination or termination of the contract shall, for that reason, be void; However, if the other conditions of termination or immediate cancellation are fulfilled and the court finds in the dispute pursuant to the provisions of § 72 that the employer cannot be reasonably required to continue to employ the staff member, the notice or immediate termination of the employment relationship shall be valid. The requirements for increased protection of trade union officials are thus fulfilled, according to the Constitutional Court.
57. The Labour Code in its provision of Paragraph 286 (4) merely provides "technically" for when the right of the trade union to operate with the employer arises. The contested regulation does not in itself interfere with trade union association law or the protection of trade union officials. There is neither a conflict of fundamental rights. And the question of whether the contested regulation ensures better or worse protection against potential abuse of law should not be addressed by the Constitutional Court. In this context, he recalls "that his task, as a judicial body for the protection of constitutionality (Article 83 of the Constitution) in the procedure for the application for annulment of a provision of law, is also not perfectionist to point out the various inaccuracies in the law or to instruct the legislature about the regulation more appropriate or to give the legislator detailed instructions on how to deal with all possible situations at the level of the sub-constitutional law. Its constitutional obligation is to assess whether or not the provision of a qualified contested law is constitutionally valid '(the already cited finding sp. zn. Pl. ÚS 83 / 06 of 12.3.2008). The Constitutional Court found no conflict with the constitutional order of the contested provision.
58. In addition to the necessary justification, the Constitutional Court adds that abuse of law is possible on both sides. On the employer's side and on the employee's side.
59. The employer may give notice of employment only for taxiously defined reasons (Section 52 of the Labour Code). This statement must be made when the employer gives notice to the employee. In the event of a legal dispute concerning the annulment of a statement, it is the employer who must prove the existence of a statement of reasons. Therefore, it is not that the employer has received notice of the operation of the trade union organisation, and on the same day he could arbitrarily resign his office. Even if the grounds of notice had been given, the immediate timeliness of the notice would appear to draw sufficient attention to possible abuse of the law in any court proceedings.
60. The opposite is the creation and notification of the activities of the trade union by the employer in connection with the imminent dismissal of one or more employees. He who is threatened by the testimony becomes a member of the trade union body and the statement is bound by the consent of that body. The effectiveness of such a step is practically unverifiable because, as has already been mentioned, any restriction on the number of trade unions is unacceptable. The employer shall have the possibility of judicial protection if, in legal proceedings, he proves that he cannot be fairly required to continue employing staff.
61. In both hypothetical cases, it would be up to the court to examine the specific circumstances of a particular case and to grant rights protection, as required by Article 90 of the Constitution. Protection against possible abuse is thus sufficiently ensured by judicial review of the validity of the notice.
B. Termination of a staff member in breach of the scheme and exclusion of entitlement to unemployment benefit
1. Constitutional bases
62. The rights defined in Article 41 (1) of the Charter are not unconditional in nature and may only be invoked within the limits of laws. Legal implementation must not be contrary to constitutional principles, in other words, the relevant laws must not deny or annul constitutionally guaranteed social and economic rights. When implementing the constitutional arrangements laid down in the Charter, the legislator must comply with Article 4 (4) of the Charter, according to which when applying the provisions on the limits of fundamental rights and freedoms, its substance and its meaning must be investigated. Social and economic rights, which include the right to obtain resources for their living needs by works, "differ from the classic fundamental rights in that they do not exist as and priori unlimited fundamental rights, which can only be restricted by the legislator for reasons foreseen in the Charter, but instead the legislator gives them the relevant content and scope. In the case of economic and social rights, therefore, constitutional guarantees constitute the constitutional protection of institutions (employment, wages, social security, family, parenting, etc.), not the protection of specific public subjective rights. Therefore, they can only serve as criteria for constitutional review where the legislator would completely ignore or negate the constitutional protection of these institutions. The same applies in relation to the interpretation of laws containing the adjustment of these institutions. If the general courts interpret and apply such a law, their activities are, from a constitutional point of view, controllable only from the point of view of the possible performance of the libel, but not from the point of view of... [the relevant] Article... of the Charter. The interpretation of economic and social rights belongs only to the legislator, not to the Constitutional Court" [points 49 and 50 of the sp. zn. Pl. ÚS 17 / 10 of 28.6.2011 (N 123 / 61 of the CollNU 767; 232 / 2011 of the Sb.); the finding of sp. zn. Pl. ÚS 20 / 09 of 15.11.2011 (N 195 / 63 of the SbNU 247; 36 / 2012 Coll.); See also sp. zn.
63. In the case of social rights, it can be further noted that "their collective restriction is precisely that, unlike, for example, fundamental rights and freedoms, they are not directly enforceable under the Charter. Their limitation lies precisely in the need for legal implementation, which is, however, also a condition for the specific implementation of individual rights" [point 52 of the sp. zn. Pl. ÚS 2 / 08 of 23.4.2008 (N 73 / 49 of SbNU 85; 166 / 2008 Coll.)]. In any case, however, 'there must be no de facto denial of which social rights, because the principles laid down in the Charter must also be complied with. The degree of compliance should be assessed in each individual case of the exercise of these rights by statutory regulation' (point 56 of the sp. zn. Pl. ÚS 2 / 08).
64. Having regard to the text of Article 41 (1) The Charter is given a closer scope to review the constitutionality of laws containing the regulation of social rights than that of the first generation, and the anchoring of their existence in the Charter means (taking into account Article 4 (4) of the Charter) that a certain minimum standard (i.e. there is a certain lower limit to the restriction, essential content) of social rights must be maintained in the legal regulation. Deciding on the scope of social rights is one of the major political issues that are primarily the subject of an election competition, and, in the end, elected representatives in the legislature decide on it.
65. The Charter lays down the right to raise funds for its living needs by work. However, this right does not imply the right of every individual to the State to ensure work. The obligation of the State is merely to create conditions or rules that would ensure, within the limits of the possible, that any interested person can obtain a job, i.e. to allow the exercise of that right by as many interested parties as possible, as provided for in Article 1 (1) of the European Social Charter. To this end, too, labour relations are not left entirely to contract freedom, but the legislator sets out the conditions for the performance of work. In doing so, it must act in such a way that the right to obtain funds for its living needs of work is brought into line with other values, in particular the right of the employer to choose his co-workers; It can even be imagined that too strict setting of the possibility of termination may, under certain circumstances, interfere with freedom in an excellent way (Favoreu, L. et al. Droit des libertés fondamentales. Paris: Dalloz, 2009, p. 334). If it is up to the legislator to reconcile the right to raise funds for its living needs by working with the right to do business, then the Constitutional Court is examining whether the legislator has succeeded in meeting this objective. It is true that only in the event of a manifest error in the legislator's reasoning need not respect the balance achieved by it.
66. According to Article 1 (2) of the European Social Charter, in order to ensure the effective exercise of the right to work, the State must effectively protect the right of the worker to earn his living in a freely chosen job. However, this does not mean the right to a specific employment relationship. The termination of a particular employment relationship does not mean the loss of access to the chosen profession, and it is therefore reasonable that the legislator's reasoning should decide on the degree of protection of the stability of employment. It is possible to point out at this point points 28 and 29 of the decision sp. zn. They certainly cannot be interpreted as guaranteeing the individual's classification as he imagines within the framework of the labour law - and therefore in his substance of private law - relations. Right to free choice of profession as enshrined in Article 26 (1) The Charter is not a subjective right to a particular employment with a given employer or to a particular type or type of employment to which the competent authority would be obliged to provide such employment, possibly with the use of State authority. It is about freedom to apply in the free competition for the chosen profession, but it does not provide a guarantee of success... The constitutional right to free choice of profession does not mean the integrity of the employed job and the prohibition of unilateral disengagement. "In other words, in the case of" the right to choose and prepare for a profession, as well as the right to engage in business and pursue other economic activities, the restriction on their substance and meaning would be if, as a result, a particular group of individuals were significantly hampered or prevented from having access to a particular profession or the possibility of carrying out a particular activity, or if, as a result of that activity, they ceased to be able to provide the means for their needs to those who carry it out. Of course, any restriction must respect the principle of equality in rights within the meaning of the first sentence of Article 1 of the Charter or Article 3 (1) thereof "[point 48 of the sp. zn.
67. In order to determine the right to adequate material security in unemployment, the finding of sp. zn. Pl. ÚS 55 / 13 of 12.5.2015 (N 93 / 77 CollNU 339; 170 / 2015 Coll.; paragraphs 51-57) contributed. In this finding, the Constitutional Court took the view that Article 26 (3) The Charter lays down the right to obtain the funds for its living needs by works and the right of those who cannot exercise that right without their guilt to a substantial extent. In the view of the Constitutional Court, "both for social and economic reasons... it is necessary to minimise the economic damage and personal disruption that a loss of employment entails. However, it is equally important to provide the unemployed with positive initiatives to be reemployed as soon as possible. In general, it is the nature and purpose of the right to adequate material reinsurance in the event of the impossibility of exercising the right to work, implemented in this case through the Institute of Unemployment Support, to reduce in the short term the loss of income that has passed due to a legally defined social event... The mechanism for implementing the law in question is thus that the State temporarily provides the unemployed with a certain amount of funding when fulfilling the legal conditions, since (objectively) the impossibility of implementing their constitutionally guaranteed right to obtain funds for their living needs by works has occurred. In so doing, those who do not fulfil the conditions for entitlement to such aid are then referred to aid in material distress under Article 30 (2) of the Charter" (point 51 of the decision sp. zn. Pl. ÚS 55 / 13). The legal implementation of the right to adequate material security for those who cannot work without fault (pursuant to Article 26 (3) of the Second Charter) is material unemployment aid. The material collateral (both in accordance with Articles 26 (3) and 30 (1) of the Charter) represents a higher standard than the basic living conditions [Article 30 (2) of the Charter (see point 54 of the sp. zn. Pl. ÚS 55 / 13)].
68. The Constitutional Court further stated (point 52 of the decision in point sp. zn. Pl. ÚS 55 / 13) that "statutory regulation makes this right primarily implemented by unemployment and retraining aid. The right in question is only for those who, without their guilt, are unable to obtain the means for their living needs by working (and at the same time are not unfit for work...). These are therefore job seekers who seek to find employment and did not cause loss of previous employment... '. Interventions in the minimum standard of this basic law could then occur if" it would be established and demonstrated that the new legislation reduces the implementation of the constitutionally guaranteed standard of social benefits to the practical impossibility of their implementation or even of their being withdrawn' (see point 78 of the sp. zn.
69. Interpretation of material unemployment reinsurance pursuant to Article 26 (3) The Constitutional Court has also stated earlier in point 262 of the decision sp. zn. Pl. ÚS 1 / 12 of 27.11.2012 (N 195 / 67 of the SbNU 333; 437 / 2012 Coll.), in which it stated that "the legislator is to determine the specific way in which the application of this right will be implemented and to make any amendments thereto. However, the legislation adopted by him must not give rise to a de facto denial of this social law (Case C-446 / 10, paragraphs 54 and 56). It must always be taken into account in its substance and meaning (Article 4 (4) of the Charter) '. At the same time, however," entitlement to unemployment benefit is not constant and it cannot be excluded that the legislator will expand or restrict it in the future. Any changes may concern both the amount of aid and the duration of the support period or conditions under which the entitlement arises or will continue. However, it is always necessary to consider whether the legal scope of the rights for which there is a material provision for unemployment will continue to allow the actual application of the constitutional right in question' (see point 263 of the decision sp. zn.
70. Pursuant to Article 69 (f) and (g) of the International Labour Organisation Convention No 102 on a minimum social security standard (published under No 461 / 1991 Coll.), the payment of a benefit to which the protected person would be entitled under any of the parts II to X of this Convention may be suspended, inter alia, because the social event was caused by a intentionally involved person and that the interested person (g) omits, in certain cases, the use of the medical or rehabilitation services available to him or her, or disregard the rules laid down for verifying the existence of a social event or the behaviour of recipients of benefits. Other points (h) and (i) of Article 69 of International Labour Organisation Convention 102 on Minimum Social Security Standard apply to unemployment support. According to them, the benefit may be stopped if the person concerned omitted to use the services of the work centre available to him or (i) if the person concerned has ceased his or her employment directly as a result of the cessation of work arising from the labour dispute or has voluntarily left his or her job for no reasonable reason. Similarly, the European Code in Article 68 (e) and (g) provides that the payment of a benefit to which the otherwise protected person would be entitled under one of the parts II to X of the European Code may be stopped to the extent that the social event was caused by the intentional fault of the person concerned or the person concerned, in certain cases, omitted to use the health or rehabilitation services available to him or to disregard the rules laid down to verify the existence of the social event or rules governing the behaviour of beneficiaries. As in the case of International Labour Organisation Convention 102 on the Minimum Social Security Standard, the European Code also provides that, in the case of unemployment benefit support, the benefit may be suspended (h) if the person concerned does not use the employment services available to him or (i) if the person concerned has arrived directly as a result of the cessation of work arising from the labour dispute or has voluntarily left employment without sufficient reasons. According to the explanatory memorandum to the revision of the European Code (see the comment on Article 74), although Article 68 of the European Code only refers to the suspension of benefits, according to the control authorities it allows both refus and withdrawal of these benefits. It is also true that, where a social event was caused by the intentional fault of the person concerned, benefits to which he would otherwise be entitled may be refused (refusées), withdrawn (supprimées) or suspended (suspendues). The same result also occurs if the person concerned, inter alia, did not behave in a manner consistent with that of the recipient of the dose. The Constitutional Court also examined the applicability of the Charter of Fundamental Rights of the European Union, which obliges Member States to apply Union law (Article 51 (1)). Both the Labour Code and the Employment Act incorporate European Union rules, but the contested provisions are not affected by them (harmonised) [Paragraph 363 and footnote 1) of the Labour Code, footnote 1 of the Employment Act]. Moreover, the provisions of the Charter of Fundamental Rights of the European Union which fall within the area covered by the contested provisions (Article 30 - protection in the event of wrongful dismissal, Article 34 - social security in the event of unemployment) are applicable "in accordance with... national laws and practices'.
2. Own review
71. Before the Constitutional Court goes to its own examination of the contested regulation, it considers it necessary to recall a fundamental change in the sickness insurance scheme. In the context of its new adjustment made by the Law on sickness insurance, the Labour Code imposes on employers, from 1 January 2009, an obligation to provide compensation for wages or salaries (Section 192 (1) of the Labour Code) for a certain period of time after incapacity for work is incurred. Thus, a part of the sickness insurance costs was passed on to the employer in exchange for a reduction in the premium rate. Employers were then allowed to check compliance with the temporary employment scheme (Section 192 (6) of the Labour Code). In the event of a breach of this scheme, § 192 (5) of Act No. 262 / 2006 Coll., Labour Code, as amended by Act No. 365 / 2011 Coll., authorises the employer to reduce or refuse to provide compensation for salary. The remuneration is paid out of the employer's resources and not from the State. This is precisely what is crucial for understanding the current legislation and for assessing the constitutionality of the contested provisions.
72. If it is the employer who "from his own 'pays temporary compensation to a competent employee, then there is another relationship between the employee and the employer alongside the labour law. Therefore, the Labour Code now regulates, inter alia," certain rights and obligations of employers and employees in compliance with the temporary work scheme of an incapacitated insured person under the sickness insurance law and certain penalties for its breach' [§ 1 (e) of Act No. 262 / 2006 Coll., Labour Code, as amended by Act No. 365 / 2011 Coll.]. For the same reason, the provision of Section 301a of the Labour Code laid down the so-called "other obligations of employees', consisting of the fact that" staff members are obliged to comply with the temporary incapacity scheme laid down for temporary incapacity in respect of the obligation to stay at the time of temporary incapacity at the place of residence and to comply with the period and extent of authorised leave under the sickness insurance law '.
73. In the view of the Constitutional Court, in the case at hand, the very core of the right to obtain the funds for its living needs by working in accordance with Article 26 (3) of the Charter is not infringed, as some systemic threat (in the sense of ignoring and negating the protection of the institution's dependent work) is not at all considered to be possible to secure the means of living in the work. In addition, the Labour Code, as amended by Act No. 365 / 2011 Coll., remains open for futuro to the opportunity to obtain the means for their livelihood, as they have not lost access to the chosen profession.
74. In view of the fact that the legislation of the statement seeks to balance both the interests of the employee and the employer, the legislation seeks to ensure that the employee is protected, on the one hand, by the fact that the employer cannot, without cause, terminate the employment relationship, and, on the other hand, the interests of the employer are protected by the possibility, under certain legally defined circumstances, to terminate the employment relationship. Although the relationship between the employer (wage compensation payer) and the temporary worker (recipient) is not an employment relationship, it has a very close relationship with that relationship. If a staff member violates his duties at the time of temporary incapacity for work, he / she is thereby damaging his / her employer. He does not work, he does not heal, and yet he demands compensation from his employer. So he's de facto cheating on his employer. In addition, it may cause serious economic difficulties to the employer by unjustifiable absence. Thus, a particularly gross breach of the temporary employment obligation (Section 301a of the Labour Code) can lead to a significant breach of trust between the employee and the employer.
75. According to the Constitutional Court, it is therefore not fair to require the employer to continue to employ the person who "cheated on him," to try to deprive him of money or to harm him in any way. Therefore, the Constitutional Court considers the possibility of dismissal to be reasonable. This is not just an "alternative private-law sanction," as the applicants state, but a way of dealing with impaired trust, which justifies protecting the employer's interests. It is essential that the employer can only give notice in the event of a particularly gross breach of the employee's obligation, at the maximum possible intensity of the infringement. Not in the case of a common violation, not even a serious violation. In other words, a severe consequence for employees can only occur in the most serious breach of its legal obligations. The more he does not comply with the statutory obligations in question, the more negative this may have consequences for him. Intensity of the infringement is determined here as strictly as for a reason for which the employment relationship can be immediately cancelled [§ 55 paragraph 1 (b) of Act No. 262 / 2006 Coll., Labour Code]. In doing so, account must be taken of the fact that there cannot be a double penalty for one infringement. Paragraph 192 (5), second sentence, of Act No. 262 / 2006 Coll., Labour Code, as amended by Act No. 365 / 2011 Coll., precludes the possibility of a reduction or failure to pay compensation if, for the same infringement of the scheme, the temporarily competent insured person has been given notice to the employee pursuant to § 52 (h) of Act No. 262 / 2006 Coll., the Labour Code, as amended by Act No. 365 / 2011 Coll.
76. Nor does the Constitutional Court agree with the objection that the contested legislation opens the door to the indiscretions of employers (paragraph 14 above). First of all, the employer must carefully assess each individual case of infringement and all its circumstances and context. It will always have to properly assess the intensity of the breach by the employee. Since the Labour Code does not define the term "particularly rough ', it is" a standard with a relatively indefinite (abstract) hypothesis, i.e. a legal standard whose hypothesis is not laid down directly by law and which allows the court, in its own discretion, to define the hypothesis itself from a broad, unrestricted set of circumstances. In order to conclude whether the conduct of an employee in breach of obligations under Section 301a has achieved an intensity, a breach in a particularly gross manner', is not relevant, as the employer assesses it in his rules of employment or other internal rules or is to be assessed under a collective agreement or, where appropriate, under a contract of employment or other contract of the parties to the basic employment relationship, and the court is not bound by such a definition when determining the invalidity of the contract. The Court of First Instance always assesses in each individual case how this concept will be defined. Therefore, the definition of the hypothesis of Paragraph 52 (h) depends in any particular case on the reasoning of the court. the court may take into account, when examining the extent of the breach of the worker's obligation to the place of employment, his position at work, the time and situation in which those obligations have been infringed, the degree of fault of the employee, the manner and intensity of the breach of the specific obligations of the employee, the consequences of the breach of the employer's obligations, the effect of his actions on whether the employee has caused damage to the employer '(cf. In: Belina, M., Scrapil, L. Labour Code. Comment. Praha: C. H. Beck, 2012, p. 329). Although the Constitutional Court is aware that the definition of the concept of "particularly rough' will primarily be based on the case-law of the general courts, only as an obiter dictum can it be noted that there are likely to be cases of" throwing sick 'for activities which are incompatible with incapacity for work, such as carrying out other gainful activities or recreation. As is apparent from the judgment of the Supreme Court in Case No 21 Cdo 5126 / 2014 of 15 October 2015, for example, such a reason for the resignation will not be the fact that an employee who has been recognised as temporarily competent will not indicate the place of residence with the information needed to enable the employer to control the necessary checks.
77. In addition, the law provides exactly the same protection as for other grounds of notice. Pursuant to Section 72 of Act No. 262 / 2006 Coll., the Labour Code, the staff member may apply the annulment of the statement to the court within 2 months of the date on which the employment was due to end. And in court, it will be the employer who will have to prove that the employee has violated his duty in a particularly rude manner. The unconstitutional nature of the legal regulation cannot give rise to a hypothetical possibility of abuse where there is effective judicial protection against any negative phenomena which may arise in connection with the termination of employment [see, mutatis mutandis, point 54 of the sp. zn.
78. Summary, the contested legislation does not infringe the "right to work," as the appellants maintain in paragraph 13 of this decision. This right is not absolute, but it is adequately broken by the possibility of a severance of employment subject to the statutory conditions. The references of the appellants to the relevant articles of the European Social Charter (paragraph 13 above) are not appropriate. These articles lay down basic principles whereby everyone must have the opportunity to obtain the means to make a living by working freely, and all workers have the right to fair working conditions. These principles cannot be interpreted as meaning that an employee can never be dismissed from employment against his will. A staff member who was given notice pursuant to § 52 (h) of Act No. 262 / 2006 Coll., Labour Code, as amended by Act No. 365 / 2011 Coll., had "the opportunity to obtain the means for his livelihood of work," but this opportunity (at least this time) was deprived by a particularly gross violation of his duties. After all, according to the constitutional order of the Czech Republic, the right to obtain funds for its living needs through the work enshrined in Article 26 (3) The Charter can only be invoked within the limits of the law (Article 41 (1) of the Charter), which does not deviate from the limits of constitutionality in this situation. As mentioned above, any abuse of the statement is sufficiently protected by judicial review.
79. Furthermore, the applicants consider that the contested provisions are "contrary to the principle of equality of people in rights'. It can be concluded from the reference to the explanatory memorandum to the law in question that they were referring to a possible inequality between insured persons, since other insured persons would remain in the sickness insurance scheme in the same breach of the scheme. The assessment of equality must be based on the purpose of sickness insurance. The sickness insurance law regulates sickness insurance" in the event of temporary incapacity for work, ordered quarantine, pregnancy and maternity and care of a member of the household or care of him and the organisation and conduct of insurance "(§ 1 (1) of Act No. 187 / 2006 Coll., on sickness insurance). The following benefits are granted from sickness insurance: sickness, maternity assistance, nursing and maternity compensation (Section 4 of Act No. 187 / 2006 Coll., on sickness insurance). The purpose of sickness insurance is to" financially secure economically active citizens in the event of short-term loss of earnings (income) due to selected social situations conditional on health change "(explanatory report to the sickness insurance law, Chamber of Deputies of Press No. 1005, 4th Election). If a staff member whose employment ended in a statement pursuant to § 52 (h) of Act No. 262 / 2006 Coll., Labour Code, as amended by Act No. 365 / 2011 Coll., becomes temporarily competent, he does not" lose his earnings "because of this incapacity or ordered quarantine, but because his employment is terminated. There is therefore no substitute for any sickness benefits. Therefore, it is not possible to compare, in terms of the equality of people, the insured persons who, despite the breach of their duties, remained employed (and thus insured persons) with those who were made redundant and who ended up not only with sickness insurance but also with the right to pay or pay. This can also be applied in full to medical fees which perform a similar function (Section 39 of the sickness insurance law cited).
80. The "equality of insured persons" of maternity benefits and the compensation allowance in pregnancy and maternity under the provisions of Sections 32 and 42 of the sickness insurance law must be taken into account separately. The prohibition of the dismissal of a pregnant employee, employee on maternity leave and employee or employee on parental leave [§ 54 (d) of Act No. 262 / 2006 Coll., the Labour Code, as amended by Act No. 365 / 2011 Coll.] in conjunction with a protective period of 180 days (§ 15 (2) of the Act No. 187 / 2006 Coll., on sickness insurance, as amended by Act No. 261 / 2007 Coll.) practically excludes the negative impact of a breach of the employee's obligation provided for in § 301a of the Labour Code into the right to pay these benefits.
81. The appellants' objection that the contested provisions contravene "the principle of the proportionality of legal interference in the sphere of private autonomy" could not be dealt with by the Constitutional Court for its insecurity.
82. The Ombudsman referred to the indeterminity of the grounds of notice under the provisions of § 52 (h) of Act No. 262 / 2006 Coll., the Labour Code, as amended by Act No. 365 / 2011 Coll., as compared to other grounds of notice, for which the Labour Code sets out in relative detail, under which conditions the grounds of notice may be used. This objection (lacking a constitutional dimension) cannot be attributed. What is more specific is the possibility to give notice to the employee "for a serious breach of the obligations arising out of the legislation relating to the employed person's work" [§ 52 (g) of Act No. 262 / 2006 Coll., Labour Code]? The law can hardly be more specific here and its interpretation is already a matter of general courts.
83. For reasons of inadequacy, the appellants also consider the exclusion of the "dismissed 'employee from the entitlement to unemployment benefit for a period of 6 months after the termination of employment under the provisions of § 52 (h) of Act No. 262 / 2006 Coll., Labour Code, as amended by Act No. 365 / 2011 Coll. As set out in point 15 above, the appellants argue that Article 19 and Article 20 of the European Code require reinsurance for protected persons to provide unemployment benefit. However, they disregard Article 68 of this European Code. It admits that the payment of a benefit to which the otherwise protected person would be entitled can be stopped to the extent provided that the social event was caused by the intentional fault of the person concerned.
84. Pursuant to Article 39 (2) (a) and (b) of the Employment Act, a jobseeker who, during the last 6 months before being entered into the employment register by the employer, has been terminated by an employment relationship because of a breach of the obligation arising from the legislation relating to his work carried out in a particularly gross manner or who, during the last 6 months before being entered into the employment register by the employer, has been terminated by the employer because of a breach of another obligation of an employee under Section 301a of the Labour Code in a particularly gross manner. Thus, the Employment Act does not grant entitlement to unemployment benefit only to those jobseekers who have violated their obligations in a "not only" serious way, but in a particularly rough way. Infringement of the obligation in a particular rough way certainly requires intentional wrongdoing. Therefore, if a staff member becomes unemployed as a result of a deliberate particularly gross breach of obligation, the failure to grant unemployment benefit is a proportionate and European Code of Conduct. Likewise, Article 26 (3) The Charter expressly provides that the State provides, to a reasonable extent, for citizens who are unable to obtain their right to obtain funds for their living needs by working without fault (see paragraphs 71- 72). These last three words are crucial. Without your guilt!
85. As well as the above right to obtain the means of living for work, the right to adequate material security as enshrined in Article 30 (1) of the Charter may only be invoked within the limits of the law (Article 41 (1) of the Charter). As is apparent above, the contested legislation does not interfere with human equality or disproportionate.
86. The Constitutional Court found no conflict with the constitutional order in any of the contested provisions and therefore rejected the proposal in accordance with Paragraph 70 (2) of the Constitutional Court Act.
President of the Constitutional Court:
JUDr. Rychetský v. r.
Different opinions under Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken by Judge Ludvík David, Pavel Rychetský and Kateřina Šimáková for a decision and by Judge Jaroslav Fenyk for his reasons.
Sign in for notes, favorites and notifications
Regulation Information
| Citation | The Constitutional Court found No 207 / 2017 Coll., on the application for annulment of certain provisions of Act No. 262 / 2006 Coll., Labour Code, as amended, and Act No. 435 / 2004 Coll., on Employment, as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 14.07.2017 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
Comments 0