2004. évi 2. szám - Jura - Pécsi Tudományegyetem

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to be a HR expert to draw the conclusion that as a
general rule companies do not send fixed-term employees
to training – they would rather train those
employees whose knowledge can be developed and
used for a long time.
In connection with the implementation of the
fixed-term directive I have dual thoughts and feelings.
In this respect ‘light’ symbolizes the fact that it
is not necessary to choose absolutely between home
and the biological role and career and profession. Accordingly,
a mother with a young child – and, due to
equal opportunities, a father with a young child – has
the opportunity to work and be a mother/father at
the same time. Fixed-term employment is advantageous
for students whose family cannot afford to
fund his/her studies. By providing employment
for students the rules of the directive ensure that
social barriers are breached and that each can fill in
a job in accordance with her/his abilities. However,
next to this light, there is shadow. Take a group of
people employed for a definite period by necessity.
This category of people endeavors to work full time,
but their position is much worse than that of those
who are unemployed. Otherwise, unemployment is
not a legal category; it is a category of employment.
If you, your relatives or friends have ever been in a
situation of unemployment it should be clear to you
that long-term unemployment may cause psychiatric
problems; the feeling of being superfluous and inert
can wreck the personality. The fixed-term directive
regulates the termination of all kind of legal and
administrative obstacles hindering the extension of
fixed-term employment. All of these are fully in line
with the report of the European Employment Working
Group presided over by Wim Kok, the former
Dutch prime minister. The said report was issued
last autumn. Its aim is full employment. In my point
of view this is similar to platonic love – perpetual
struggling which never comes to anything. However,
if we can ensure job possibilities, this struggling is
not useless.
According to Wim Kok’s report, the instrument of
its goal could be the extension of fixed-term employment.
For the success the instruments of labor law are
necessary but not sufficient. The legal environment
is key, but so is the tax-law, and health and pension
insurance. And another absolute economic element,
the wage.
Another legal area is the transfer of undertakings.
This area has a particular resonance in the context of
endeavors to establish the most efficient operational
conditions. The transfers of undertakings require
safeguarding provisions in order to ensure that the
employees’ interests are protected. The newest European
requirements are regulated in Council Directive
István Horváth: Light and shadow
2001/23/EC. Doubtless one positive effect of legal
harmonization, as a consequence of legal succession,
is to be found in the case of transfers of undertakings.
Let me give you an example. If a hospital of a local
government is privatized, the status of the employer
changes and the employees will fall under the scope
of Labor Code as opposed to the scope of the legal
status of public employees.
According to the rules under the former, it was
at the discretion of the privatized hospital whether it
will keep on employing the doctors and nurses formerly
employed as public employees. Following the
harmonization of the directive, this defense lessness
of the employee is over, and now the privatization
of a publicly owned company cannot influence the
existence of employment. This is a good example
which shows that harmonization is important, it does
improve the legal system with respect to guarantees
for employees. The employer transfer directive – with
respect to the rights of employees – leads to another
duality. Just like in national law where we do not
get a full picture if we disregard court practice, in
European law we cannot disregard the practice of
the European Court. In the context of employer
transfers, the practice of the court seated in Luxembourg
is especially important due to globalization,
and internalization of the economy. An American
attorney may also need to know the precedential
court rulings in the same way as his/her European
colleagues do. According to the directive, transfer
means the transfer or merger of the undertaking or
a part thereof to another employer on the basis of a
contract. We can talk about transfer if an economic
unit keeping its identity is being transferred, so it
remains a group of organized assets carrying on
its economic activity. In order to supplement this
I would like to give the essence of a few examples:
According to court practice, the criteria of transfer
is the transfer of material and immaterial assets, the
takeover of personnel, the takeover of clients, the
identity of the activity carried out by the transferor
and the transferee. These criteria have to be examined
as a whole, not one by one. Partly deviating from the
above, the European Court diagnosed transfer in a
case where cleaning services were outsourced in a
bank in respect of one cleaning lady. There was no
transfer of material assets – the court stressed another
criteria, the takeover of personnel, in order to declare
this situation a transfer. The counterexample is a case
from 2002, a case involving a Finnish bus company,
in which the takeover of the workforce was not the
dominant aspect. The winner of the tender on the
operation of the business was provided with the
buses, and through this a material economic asset
was transferred, which gave the court a ground to
deem the transaction as a transfer under the defini-
JURA 2004/2.