Found at the Constitutional Court of the Czech Republic No. 3 / 1995 Coll.
The finding of the Constitutional Court of the Czech Republic of 23 November 1994 on the application for annulment of certain provisions of Article I of Act No. 74 / 1994 Coll., amending and supplementing the Labour Code No. 65 / 1965 Coll., as amended, and certain other laws
Valid
3
FIND
Constitutional Court of the Czech Republic
On behalf of the Czech Republic
On 23 November 1994, the Constitutional Court of the Czech Republic decided in plenary on a proposal by a group of 45 Members of Parliament of the Czech Republic to repeal the provisions of paragraphs 1, 2, 97, 98, 99 and 100 contained in Article I of Act No. 74 / 1994 Coll., amending and supplementing the Labour Code No. 65 / 1965 Coll., as amended, and certain other laws, where they are repealed, amended or supplemented by the basic principles and provisions of Sections 151, 152, 154 (1) and 156 (3) of the Labour Code and with the related provisions of paragraph 38 [Paragraph 37 (1) (f)] and paragraph 102 (deletion of the words "152 a 'in the first sentence) as follows:
Motion denied.
Reasons
On 24 May 1994, a motion by a group of 45 Members of the Chamber of Deputies of the Parliament of the Czech Republic to repeal the cited provisions of Act No. 74 / 1994 Coll. The contested law was approved by the Parliament of the Czech Republic and entered into force on 1 June 1994, with the exception of Article 4 (1) (a) (ii) of the Treaty on European Union. I, point 90, which took effect on 1 September 1994 and point 7 of Article VII, which shall take effect on 1 January 1995.
The Act was published in the Collection of Laws in the amount of 23, which was circulated on 29 April 1994, so that the Act became valid. This fulfilled the condition of admissibility of the application within the meaning of § 66 paragraph 1, 2 of Act No. 182 / 1993 Coll., on the Constitutional Court.
On 3 November 1994, the Constitutional Court of the Czech Republic received a supplement to the appellants, which included a correction of some erroneous figures, while specifying the text of the proposal from which, for the sake of completeness, the following can be stated:
Although the Federal Assembly disagreed with the ratification of Convention No 171 on Night Work of 1990 by Resolution No 110 of 15 December 1992, it agreed to the ratification of the 1990 Protocol to the Convention (revised) on the Night Work of a Woman (1948). According to Bulletin Official du Bit (1993), the instrument of ratification of that Protocol was registered on 15 March 1993, with the entry into force of the Protocol on 15 March 1994. The appellants further state that, in view of the fact that the ratified Protocol has not yet been published in the Collection of Laws of the Czech Republic, Article 10 of the Constitution of the Czech Republic does not apply to it.
In addition, the appellants point to the contradiction of the contested provisions of the Labour Code with the ratified and not yet declared Protocol of 1990 to the Convention on Night Work (Women) - revised - 1948.
The Constitutional Court of the Czech Republic, pursuant to § 42 (3) and § 69 of Act No. 182 / 1993 Coll. sent a proposal to the Chamber of Deputies of the Czech Republic and requested also a shorthand report on the meeting of the Chamber of Deputies, at which a government bill was discussed, which amended and supplemented the Labour Code and certain other laws, including a joint report by the committees of the Chamber of Deputies and explanatory notes on this proposal.
On behalf of the Parliament of the Czech Republic, the Vice-President of the Chamber of Deputies, Ing. Pavel Tollner, who pointed out that the direct ban on the night work of women stems only from Article 3 of Convention No 89, which, however, concerns only the work of women in industrial enterprises, is closely defined in Article 1 of that Convention. Compared to other international treaties and the 1990 Convention No 171, Convention No 89 is obsolete and essentially constitutes discrimination against women. This discrimination manifests itself in the possibility of concluding employment contracts for men and women employed outside industrial enterprises referred to in Convention No 89.
By Convention No 171 of 1990, which also applies to the night work of women, it is generally given to a woman to choose when and under what circumstances she decides to take advantage of the protection afforded to her by the ban on night work and guaranteed by her consent.
Women's rights to special protection provided for in Articles 29 and 32 of the Charter of Fundamental Rights and Freedoms should be compared with the right of every person to freedom of choice of profession (Article 26 (1) of the Charter of Fundamental Rights and Freedoms and Article 1 (3) of the Employment Act) and with the guaranteed right of women to the same conditions in employment as men [Articles 2, 6 (1), 7 (a) and (e) of the International Covenant on Economic, Social and Cultural Rights, published under No 120 / 1976 Coll.].
Law No 74 / 1994 Coll. continues to guarantee the woman adequate protection against the inclusion of night work against her will.
The Czech Republic is not bound by any international convention, by the Constitution or by the Charter of Fundamental Rights to the absolute ban on sending pregnant women and women taking care of young children on business trips. Therefore, as with night work in this case, staying on the absolute ban on sending these women on business trips would mean discrimination against them in terms of employment and conditions for employment.
Law No 74 / 1994 Coll. was adopted by the necessary majority of Members of Parliament, duly signed and declared in the Collection of Laws.
The legislature acted with the belief that the law adopted was entirely in line with the Constitution, the Charter of Fundamental Rights and Freedoms, the rule of law and the international treaties with which our Republic is bound. The citation of the Chamber of Deputies of the Czech Republic.
From the point of view of the expert assessment of the issue, the Constitutional Court of the Czech Republic also requested opinions:
1. Ministry of Foreign Affairs of the Czech Republic,
2. Ministry of Health of the Czech Republic,
3. Ministry of Labour and Social Affairs of the Czech Republic.
ad 1. The Ministry of Foreign Affairs of the Czech Republic has stated that by deleting Sections 151 and 152 in the previously valid regulation of the Labour Code, the prohibitions relating to the night work of women are limited. Conversely, the amendment to the Labour Code (Act No. 74 / 1994 Coll.) extends the rights of women and leaves the choice to be considered. The same applies to the provisions of Section 153 and Section 154 (1) of the Labour Code. In general, therefore, it can be said that the new legislation goes beyond international commitments in the field of human rights, while not in line with international conventions.
ad 2. The Ministry of Health of the Czech Republic referred to the conclusions of the main hygienist of the Czech Republic that, in his view, the ban on the night work of women and the current legislation on the working conditions of women, given by the provisions of § 149 to 156 of the Labour Code as amended, is not contrary to Act No. 20 / 1966 Coll., on the care of the health of the people, as amended. The problem of protecting the health of working women, including pregnant women and their unborn children, must be understood in particular in relation to the identification of the types of work that women can perform and the nature of the workplace. In the opinion of the Ministry of Health of the Czech Republic, protection of the health of working women will be adequately ensured by the relevant decree, which provides work and workplaces suitable for all women, pregnant women and mothers until the end of the ninth month after birth.
ad 3. The Ministry of Labour and Social Affairs of the Czech Republic also commented on the issue, which stated that, as far as the night work of women is concerned, the Czech Republic is still bound by Convention No 89 on the Night Work of Women from 1948 - revised and Protocol of 1990 to that Convention, as regards the ratified international conventions of the International Labour Organisation.
The mentioned Convention No. 171 of 1990 on Night Work was not approved by the Government of the Czech and Slovak Federal Republic or the Czech Republic, nor by the parliaments of both Republics. The Government of the Czech Republic has ordered this Ministry to prepare further legislative work in order to achieve compliance of the legal order of the Czech Republic (formerly the Czech and Slovak Federal Republic) with the provisions of Convention No. 171 of 1990. In the Ministry's view, this is a desirable process of harmonising European Community legal acts with national legal acts of the Czech Republic. The Ministry of Labour and Social Affairs of the Czech Republic takes the view that, both in terms of the internal breakdown of the International Labour Organisation and in terms of international law, Convention No 89 is not a Convention on Human Rights and Fundamental Freedoms within the meaning of Article 10 of the Constitution of the Czech Republic.
According to Article 87 (1) (a) of the Constitution of the Czech Republic The Constitutional Court shall decide to repeal the laws or their individual provisions if they are contrary to a constitutional law or an international treaty pursuant to Article 10 of the Constitution of the Czech Republic. Within the meaning of Article 10 of the Constitution of the Czech Republic, such treaties shall mean only ratified and declared international treaties on human rights and fundamental freedoms. The Czech Republic is bound by them, they are immediately binding and have priority over the law. In the event of a conflict between contract and law, the contract shall apply.
Basic international documents which deal with fundamental rights in the field of labour law and social security include only:
The Universal Declaration of Human Rights,
International Covenant on Civil and Political Rights,
Convention on the Elimination of All Forms of Racial Discrimination,
Convention on the elimination of all forms of discrimination against women.
European documents in the same area include:
Convention on the Protection of Human Rights and Fundamental Freedoms,
European Social Charter.
According to the Internal Classification of Conventions of the International Labour Organisation itself, only the following can be classified as human rights and freedoms conventions:
1. Convention on Discrimination,
2. the Convention on the Prohibition of Forced Labour,
3. trade union conventions.
The Convention No 89 of 1948, revised, on Night Work, is therefore not, as is apparent from the above, an international agreement on human rights and fundamental freedoms under Article 10 of the Constitution of the Czech Republic, but is, including by the International Labour Organisation itself, among the conventions on working conditions for the employment of women.
As regards others in the draft international conventions mentioned above, only the Convention on the Elimination of All Forms of Discrimination against Women (published under No 62 / 1987 Coll.) can be classified among the documents which meet the conditions of the already cited provision of Article 10 of the Constitution of the Czech Republic. The proposal referred to in Article 23 of this Convention states: "Nothing of this Convention shall prejudice provisions which may even better lead to equality between men and women which may be included:
(a) in the legislature of the State, the Contracting Party; or
(b) in any other international convention, contract or agreement applicable to that State. "
However, the reference to that article contradicts the meaning and purpose of the justification of the proposal, since it is clear that the abolition of the previously applicable ban on the night work of women is the fulfilment of the above mentioned provisions of the Convention. In cases of other conventions fulfilling the condition laid down in Article 10 of the Constitution of the Czech Republic, the Constitutional Court considered that it was not related to the issue at issue.
The proposal of the group of Members of Parliament of the Czech Republic was made within the meaning of Article 87 (1) (a) of the Constitution of the Czech Republic and Article 70 of Act No. 182 / 1993 Coll., since, as the applicants state, the contested provisions of Act No. 74 / 1994 Coll. are directly contrary to the international treaties by which the Czech Republic is bound under Article 5 (2) of the Act of the Czech National Council No. 4 / 1993 Coll., and take precedence over the law.
They also justify their proposal by claiming that the Czech Republic as a legal member The International Labour Organisation shall respect its Constitution and its adopted and our Republic's ratified conventions.
It should be noted that the proposal cited in Convention No 89 on the Night Work of Women (1948) - revised - entered into force for the Czechoslovak Republic on 12 June 1951 (published in the Collection of Laws under No. 17 / 1991 Coll.).
It is true that according to the Resolution of the Government of the Czech and Slovak Federal Republic No. 453 of 6 November 1991, the then government of the Czech Republic made a request for ratification of Convention No. 171 The International Labour Organisation on Night Work, which newly regulates certain concepts relating in particular to the Night Work of Women. As the legislative preconditions for ratification of the Convention (i.e. the amendment of the relevant provisions of the Labour Code) were not created at the time, the Government of the Czech and Slovak Federal Republic abandoned the proposal for ratification. The proposal to ratify Convention No 171 was prepared at the same time as the text of the government proposal to amend the Labour Code.
The reason for the abolition of the ban on the night work of women was, according to the explanatory report on the draft law, the need to harmonise the law of the Czech Republic with the relevant legal acts of the European Community, in particular the European Association Agreement with the European Community (Articles 69 and 70 of the Europe Agreement).
According to the programme statement by the Government of the Czech Republic, its main tasks were also the submission of a draft amendment to the Labour Code. The amendment developed to the Labour Code responds to fundamental changes in legal relations in the economic system of the Czech Republic and it was therefore necessary that the existing trends in economic development should not hinder current employment relations, but support them and facilitate their implementation.
That is why the government has proposed, in particular, an adjustment to the performance of night work. In the current regulation, the abolition of the difference between a man and a woman in night work has thus eliminated the centralised agenda for authorising exemptions from the ban on women's night work. This ban, although so far presented as a sign of women's care, has in practice been felt as discrimination against women.
Article 10 of the International Covenant on Economic, Cultural and Social Rights (published under No. 120 / 1976 Coll.) also provides only for the right to special protection, in particular social protection in pregnancy and maternity. The Convention on the Elimination of All Forms of Discrimination against Women (Article 11 (1)) gives rise to generally declared rights, such as health protection, prenatal and postnatal care for women, which are guaranteed by both the Constitution and other statutory and substatutory labour law and health legislation. In essence, the Convention on the Rights of the Child (Article 24 (2) (d) and Article 41) sets out the same principle.
It does not correspond to the fact that the generally formulated rights and the protection of women and families in Article 32 of the Charter of Fundamental Rights and Freedoms are implemented only by the provisions of Section 154 of the Labour Code.
In the proposal referred to in Article 26 to 32 of the Charter of Fundamental Rights and Freedoms, only Article 29 (1) directly applies to the issue, which refers to the right of women, adolescents and people with disabilities to improve health at work and special working conditions. However, this article obliges the Czech Republic only to increase the protection of those entities under working conditions. Other provisions directly linked to this issue are Article 32 (2) of the Charter of Fundamental Rights and Freedoms, which refers to special care and protection in the working relations of women in pregnancy and corresponding working conditions. The other articles referred to above do not relate to the matter under consideration.
The internationally recognised principle that ratification of the International Convention is without prejudice to more favourable rights, protection and conditions provided and guaranteed by national legislation is also contained in Article 19 (8) of the Constitution of the International Labour Organisation. The Constitutional Court does not share the view that the provision of paragraph 99 of the Amendment to the Labour Code is contrary to fundamental rights acquired under the Charter of Fundamental Rights and Human Rights acquired under international law.
As regards the basic principles, which were deleted in the amended version of the Labour Code, these principles were merely general interpretative rules, which were used in support of the application of the specific provisions of the Labour Code but did not have a regulatory character.
The repeal of Article III to X of the basic principles of the Labour Code by Law No 74 / 1994 Coll. does not result in the repeal of the relevant legal institutes, as they are further regulated in accordance with Article 41 (1) of the Charter of Fundamental Rights and Freedoms by the following provisions:
Article III - The right to free choice of profession and the right to obtain funds for their living needs by work is governed by the employment laws, the prohibition of forced labour and the prohibition of abuse of rights in § 7 of the Labour Code.
Article IV - The right to pay or pay is governed by Act No. 1 / 1992 Coll., on wages, remuneration for on-call and on average earnings, as amended, and Act No. 143 / 1992 Coll., on the salary and remuneration for on-call in Budget and certain other organisations and bodies, as amended, or for a part of employees until now by § 111 to 123 of the Labour Code. Health and safety at work is regulated in § 132 et seq. of the Labour Code, rest of recovery after work guarantees the provisions of § 100 et seq. Staff care, including qualification issues, is regulated in Section 139 et seq. of the Labour Code.
Articles V and X - The position of trade unions as employees' representatives is enshrined in Section 18 of the Labour Code, the right to collective bargaining is governed by Act No. 2 / 1991 Coll.
Article VI - The basic obligations of employees and managers are laid down in Sections 73 to 75 of the Labour Code.
Article VII - As regards the working conditions of women and mothers, the Labour Code does not generally distinguish between men and women in the regulation of labour relations, but takes into account the physiological assumptions and maternal role of women, in particular the adjustment of maternity leave, the possibility of adjustment of working time, the protection against dismissal and the abolition of work for women, pregnant women and mothers by the end of the ninth month after birth (§ 149 et seq.).
Article VIII - The adaptation of the special conditions of minors includes in particular the provisions of Sections 163 to 168 of the Labour Code.
Article IX - Protection of the health of workers is regulated in § 135, liability for damage in § 170 et seq. The security of workers in incapacity for work and in old age is provided for in Section 146 et seq. of the Labour Code, as well as by specific laws governing sickness and pension insurance (insurance). Protection of labour relations in the event of illness, accident, pregnancy or maternity is ensured by protection against dismissal (Section 48 of the Labour Code). The issue of preventive and medical care is governed by special laws (e.g. Act No. 20 / 1966 Coll.) - e.g. Sections 99 and 168 of the Labour Code.
The basic principles in the Civil Code have also been abolished as unorthodox and superfluous.
The judgment of the Court of Justice of the European Community in Luxembourg of 25 July 1991 on dealing with the issue of equality in access to men and women in the event of a ban on night work is also covered.
In Case C 345 / 89, the Court of Justice dealt with the prejudicative question of the interpretation of Article 5 of Council Directive 76 / 207 / CEF of 9 February 1976 relating, inter alia, to the equality of access to men and women as regards their working conditions. According to Article 5 of the Directive cited, men and women are to be granted equal conditions without discrimination based on sex. To that end, Member States shall take the necessary measures to remove (repealed) provisions contrary to this principle where the care of the protection which inspired them is no longer justified [Paragraph 2 (c) of the Directive].
Pursuant to Article 9 (1) of the Directive cited, Member States have undertaken to adapt their legislation to the provisions of the Directive within 30 months of its official notification and, as regards Article 5 (2) (c), within 4 years. This deadline expired on 14 February 1980. According to the judgment of that Court of Justice, Article 5 The Directive obliges Member States to apply equal conditions in the working conditions of both men and women without discrimination on grounds of sex and to revise those laws and regulations which are contrary to this principle. The provision of that Article is so precise and unconditional that private persons may refer to it in national courts.
In the light of the above, plenary of the Constitutional Court of the Czech Republic rejected the proposal of a group of Members of the Parliament of the Czech Republic in its entirety, as the contested provisions do not conflict with international treaties pursuant to Article 10 of the Constitution of the Czech Republic and the Charter of Fundamental Rights and Freedoms.
President of the Constitutional Court of the Czech Republic:
JUDr. Kessler v. r.
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Regulation Information
| Citation | Found by the Constitutional Court of the Czech Republic No. 3 / 1995 Coll., on the application for annulment of certain provisions of Article I of Act No. 74 / 1994 Coll., amending and supplementing the Labour Code No. 65 / 1965 Coll., as amended, and certain other laws |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 18.01.1995 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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