Photograph by Joshua Lott, Bloomberg

The „new“ Labor law has become center of public attention in the middle of the summer, when the majority of citizens finally succumbs to desire to rest from politics. However, the greater part of that attention is extremely superficial (most of all the media attention). As a result, the illusion that this is the “new” labor law pertains, although it is merely list od changes and amendments of the law from 2005. This terminological confusion is no accident – ruling party and its president have promised to voters radical new solutions regarding labor regulations, solutions which would even initiate new employment (how labor law could do this will remain a mystery forever). Fake new labor law also contributes to the impression about reforms implemented by the new government. So it has a double positive effect for the government. Firstly, it creates an illusion that the government has a capacity to build the system from scratch. Secondly, it creates a deceit that by instituting a new system all the rights, obligations and relationship between an employer and employees would change significantly. And since we are talking about illusions, none of it will become true. If there were capacity for creation of a new system, we would have gotten a new law, and not merely changes of the previous one. In further text I will analyze the second point – do these amendments significantly change positions of employees and employers?

Amendments

The majority of the changes are amendments, i.e. clarifications of the provisions of the law. There are a lot of such examples. Among other things, it is about clarifying the way for adoption of rulebooks, amendments of articles regarding obligatory content of work contract and contract on work outside the employer’s offices, introduction of procedures for employers’ safekeeping of work contracts, number of copies of work contracts, obligation to explain termination of approbatory work and so on. Some changes are purely terminological, due to harmonization with other regulations: “incapable persons” is replaced with “person with disability”; “protection of life and health” – “protection of health”; “jobs with prescribed special conditions of work” – “high risks jobs”. These amendments constitute about a half of proposed changes and are mainly not disputable. On the contrary, some clarifications and amendments make sense and are useful. However, it is clear that the range of amendments, clarifications and terminological harmonization are miles away from creating new jobs or radical changes of labor legislation.

Changes of grounds for cancellation of work contract by an employer from article 179 are especially interesting. That article was persistently criticized as “rigid” and a great obstacle for laying off lazy workers whom courts regularly returned to their jobs. And precisely this heavily criticized article 179 is more clarified than changed by these amendments – parts defining what constitutes breach of labor discipline[1] and violation of duty at one’s own fault[2] are amended by these changes. This refinement is half-done, since one of the reasons for layoff remains unclear – the one about the layoff due to abuse of periods of incapacity for work. Since an employer doesn’t have and can’t have access to employee’s medical records, it poses the question – how will he conclude that an employee has abused his right to a leave of absence due to temporary incapacity for work? And another thing: will his subjective evaluation and opinion will be enough to fire an employee?

Problematic provisions – reasons for layoff, work hours

When it comes to provisions that are not amendments or technical changes, I want to focus on those that could prove significant on daily basis. Some other questions – like severance pay or seniority allowance – which were given a lot of attention in public, can’t be crucial for an employee’s position like provisions I want to talk about.

The majority of reasons for layoff, like we already saw, haven’t been changed significantly. Still, by reading the article 179 we learn that a completely new reason is introduced – behavior of an employee that constitutes a criminal act at work or related to work, regardless of whether criminal proceedings against the employee are initiated. This means that an employer will be allowed to evaluate himself whether some behavior constitutes a criminal act. Such solution is not only unheard of, but also unclear regarding its relation with provisions that allow temporary removal of an employee from work due to initiation of criminal proceedings. This is an absurd situation – at the same time an employer can temporary remove you from work after criminal proceedings had started, but he can also fire you based solely on “the feeling” that you have committed a crime, without any decision of relevant authorities. And it will be a completely legitimate layoff.

Another change that didn’t get enough attention, because the public was talking about decrease of severance pays and seniority allowance, is the one about working hours from article 50. The definition of working hours has been changed completely and now it states: “Working hours are time in which an employee is obliged, i.e. available to perform duties in accordance with employer’s orders”. So, according to the new changes working hours are not only the time that an employee spends at work, in accordance with the law and contract; the definition now includes the time when an employee is “available to an employer” to perform work “when the need arises”. What is the purpose of this provision? Why is the meaning of working hours extended like this? Point 4 of article 50 says: “stand-by time and amount of pay for this is prescribed by law, statute or employment contract”.

Since there is nothing about this new term further in the law, we can conclude that it will now be possible to demand of employees to be available for an employer in any time outside the working hours as we knew before, by work contract or other document. It can be one of the reasons for layoff, because if an employee is not “available” that would constitute a violation of work obligation prescribed by work contract or other statute of an employer (which is one of the reasons for layoff). This provision could be questioned from the point of Constitution: whether this introduction of “available time” violates the right of employees to limited working hours.

We know that one of the reasons the Labor law exists is to protect employees from long working hours, nonpayment of salaries, unjust layoffs, forced work during illness. This is not about some ideological debate, about the left and right, but the simple fact that employees and employers have different positions of power. Employer is the one who hires an employee, and not the other way around. Labor law is, therefore, always more important for employees, and that is especially true in a country where a quarter of the population is unemployed. When we know this, we can not help but wonder why, for example, the deadline for an employee to initiate a labor dispute is reduced from 90 to 60 days from the day of violation of the right by these changes. The explanation states that this change is needed because of “legal security of an employer.” If we assume that the possibility to be sued constitutes a legal insecurity, and that legal security is the ultimate goal, then we should abolish the very possibility for employees to initiate labor dispute due to infringement of rights. Why not make employers completely “legally secure”?

So, by this “new” law, the government tried to present itself more capable for major changes than it actually is – it wanted us to believe that the proposed bill is indeed something new and that it brings serious changes of the relationship between employers and employees (although it was never clearly said in which direction the changes will be made, on whose behalf or to whose harm). Instead, many of the changes are strictly technical or complementary by nature. Where there are changes, they are not made in the direction of the promised results, but make it easier to fire employees on the basis of an opinion or impression of an employer, tractable concept of working hours and reduced deadline for legal protection. I won’t even mention an attempt to ensure the possibility for layoff of pregnant women: luckily, the amendment pf the original solution was accepted.

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Employers subject to these new solutions will soon realize the benefits – they will be able to treat employees as they wish. When you know all this, how scary does a statement of the minister in charge of labor that the “law allows for better protection of workers” sound? In fact, we can only hope that employers will be better people than the ones who proposed the amendment of labor law. These changes are undoubtedly unfair: not only according to our sense, but also according to Article 20 of the Constitution which says that the achieved level of human rights must not be reduced. The right to work and other associated rights that we mentioned are undoubtedly human rights.

We have before us the amended law, which is problematic in several ways – it certainly regresses from the achieved level of protected rights, and it also poses as something that it actually is not: with these changes, no existing employer will open a single new position. Each new employer will open a minimum number of jobs, because the new system allows him to try and get the maximum of his already cheap employees by extending working hours and unlimited possibilities for layoffs. That’s the only real change we’ll see.

Translated by Marijana Simic

Peščanik.net, 28.07.2014.

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  1. Refusal to perform duty, work under the influence of alcohol, not submitting medical certificate for a period of incapacity for work, etc.
  2. Negligently and carelessly performing work duties, exceeding authority, abuse of office, failure to use safety equipment, etc.