2004. évi 2. szám - Jura - Pécsi Tudományegyetem

István Horváth: Light and shadow
ployment market as a whole have the same problems
as presumably all of the developed countries: How
can national and European legislation handle the
phenomenon referred to as the „escape from labor
law” by several authors?
Before we deal with any individual labor law issue,
we cannot avoid taking a look at the tendencies
to be observed in all countries of the enlarged European
Union. The legislation of all states is effected by
globalization – a second industrial revolution which
has not only revolutionised production, but has also
created opportunities – especially in the fields of
transportation, telecommunication and control – and
reduced distances and obstacles in time and space.
From the multinationals’ point of view, the world has
become a single plant. The other factor influencing
labor law legislation is the international interweaving
of companies, or, more precisely, the supra nationalization
of them, and the strong appearance of
large investors. The increase of consumer needs is
also typical. All this requires a permanent adjustment
from economic players. The traditional rules and solutions
of labor law and industrial relations are often
ineffective when faced with the challenges created by
globalization. The HR policies of the companies have
changed. They intend to organize their company and
organizational structures in order to be able to easily
adapt to the changes. HR policies are subordinated
to effectiveness and successful adjustment. The suitable
workforce is organized in accordance with these
policies, with as flexible a working time structure as
possible. The requirements overstep the traditional
framework of labor law, competition requires other
solutions. Flexibility has come to the fore, and the
expectation is also heard that the state should only
regulate the most important principles and frameworks,
and all other rules should be included in
collective agreements and work contracts. Another
tendency should not be neglected either: In the employment
structure, it is not the industry, but services
who employ the most people, while the number of
agriculture workers has decreased to a few percent.
Providing services requires conditions other than the
former classic ones, and has requirements unfamiliar
to traditional labor law. As examples, seasonality,
independence, and weekend work can be mentioned.
The changed employment structure cannot be disregarded
either – the large Tailor-model plants have
replaced by small and medium sized companies on a
large scale. Another duality – people are longing for
traditional employment, but most of them only have
the chance only to engage in atypical employment.
With respect to the conditions I have sketched
above, I would like to share my views on the successes
and challenges of European Labor Law. All
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of this is of course a subjective selection, each and
every of lawyer may write about different themes
on the basis of our own professional interests and
social sensitivities.
2. From 2002, as the head of the Legal Department
of the ministry of labour, I took part in harmonization
in two ways. The first one was a classical legislative
task – with one amendment of the labor code, six
directives were adopted. The other one took place
in Brussels where I was representing Hungary with
my colleagues in the procedure on checking the
fulfillment of Hungary’s harmonisation obligations.
One of the basic questions of a legislator’s work
is the following: Will the national labour law have
more integrity, and be more suitable for the actual
requirements after harmonization? In my opinion,
this is what it makes sense to codify – the unification
of rules by itself is nothing. I think there is another
important question in connection with harmonisation,
namely whether labour law legislation – bearing
in mind the tendencies of our time – is sufficient as a
European Union and member state measure to solve
problems of employment.
To consider the above mentioned questions, let
me start with two directives on atypical employment,
namely 97/81/EC on part-time work and 99/70/EC
on fixed term work. It is of common knowledge that
the reason for issuing these directives is the overshadowing
of full-time, indefinite employment. A
German professor – exposing his doubts – has deemed
the experience of trying to extend the rules of typical
employment to atypical one as a Catch 22 situation.
The extension of the rules of typical employment to
atypical employment would abolish the advantages of
the latter. The directive on fixed term work is qualified
as ’soft’ by a number of authors, judging it as a formal
result that one of the three possibilities hindering
employer misuses in connection with the extension
of fixed term contracts is to be incorporated into
national law. Member states may either regulate
the maximum length of a fixed term employment,
or introduce an obligation to give reasons in the
case of extension of the contract, or, finally, limited
the number of extensions that may be made. In this
respect the Labour Code did not have to be modified;
but at the same time – considering the labour
market situation – it is important to raise the question
as to whether it is possible to give greater protection
by law to fixed term workers. The directive, by the
way, uses the conditional tense, which is not legally
binding.
If it is possible, the employers have to provide
appropriate training opportunities for employees
who are employed for a definite period. This is the
rule set by the directive, -whereas it is not necessary
JURA 2004/2.