2004. évi 2. szám - Jura - Pécsi Tudományegyetem

154
István Horváth: Light and shadow
position to be in line with the interpretation of the
European Court. The rulings – which may even be
unconsummated in certain member states – were
also reacted to by the Commission. In September
2003 all member and candidate state representatives
were invited to Brussels. The aim of the invitation
was not the strengthening and accepting of the
reasoning of the court rulings. To the contrary – the
administration in Brussels – after a short assessment
of the situation in the member and candidate states
– made a contradictory proposal. The harmonization
of European labor law has its eyes on two interests:
More flexible employment and the consideration of
employee interests. The Commission proposal has
three elements: the possibility of one-year reference
periods as a general rule, the possibility of disregarding
certain inactive periods when calculating the
weekly 48 hour limit of working time, and, finally,
– as the price paid for more flexibility – the deletion
of opt out, or at least the introduction of stricter rules
in connection with it. Either the amount of working
time should not exceed 48 hours a week – this would
cause serious work organizational problems with
respect to stand-by jobs, and in the health sector,
or – and this would be more favorable for us – the
opt out would be made stricter, so it would not be
enough to have an agreement between the parties
on the increase of the 48-hour working time. It is a
reasonable criticism that the agreement itself does
not provide a sufficient guarantee, since it might
happen that employers might only be ready to enter
into work contracts which specify a weekly working
time in excess of 48 hours. That means that the requirement
that the agreement is voluntary included
in the directive becomes formal, the agreement on
the working time extension becomes a condition of
employment.
According to an informal statement of the Commission,
by the end of summer the final proposal of
the Commission will be elaborated, from which a
new line of the Union labor law legislation may issue.
According to an Austrian professor, the Union’s
economic policy is aiming towards liberalization.
The question is whether this aim will also be found
in European Union directives in the future.
3. Finally, I would like to mention one of the
newest European Union challenges, the member
state’s takeover of the provisions of the agreement
of European social partners which have not been
announced in a directive. In 2002 in Bruxelles the
European Trade Union Confederation (ETUC) and
two employer organizations on the union level concluded
a framework agreement on telework. In my
opinion the said agreement is crucially important
as it stipulates that telework qualifies as an employment
relationship. Consequently, in itself, the fact
that the employee performs work in his/her own
home, in accordance with his/her general working
time schedule, does not qualify the employment
relationship as a civil law relationship. I think the
profession of a lawyer can be performed as telework,
as telework may be constituted by sitting in a park,
using a lap-top and sending documents to the employee
by way of an email. My cousin works in Paris
at an international telecommunication company. In
the company’s experience, male employees are much
more efficient at home on Mondays without shaving
as opposed to where they are performing their work
in their office under the pressure of stress. The implementation
of the agreement – not announced in a
directive – depends on the level of the social dialogue
of the Member States. In Hungary less than half of
the employees work under the scope of a collective
agreement, so the rules of telework became part of
the Labor Code because of the active participation of
the state. The said rules entered into force on the 1st,
May, on the day when Hungary became a Member
State of the EU. The rules of telework can be said to
be significant because the changing of technological
conditions allow the changing of the definition of the
workplace in several professions. The subsequent
consequence of this could be the changing of the
traditional labor rules.
In several opinions on the legal harmonization,
the strained tempo did not take into consideration
the internal, national circumstances. The duality. The
light: each Member State fulfilled the requirements of
the EU. The shadow: the internal, national problems.
Labour law became independent as a result of
industrial revolution. The explosive change in technology
in the recent past has amended the conditions
so much that the main institutions of labour law have
to be re-examined. Success requires the service of two
masters, i.e. flexibility and employee-friendliness. Or
– as people say it – that certain golden midway has
to be found, creating a balance between capital and
profit and human beings, families and private lifes.
Let me complete the article with a personal,
subjective metaphor. The success of an orchestra
depends on whether the songs are understandable
for the audience. The value of a law depends on
how it operates in practice. As for the orchestra, the
constituter of a regulation only sets the framework,
the success depends on the medium.
JURA 2004/2.