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SUSPENSION OF THE INDIVIDUAL EMPLOYMENT CONTRACT IN THE CASE OF MATERNITY LEAVE OR IN THE CASE OF MATERNAL RISK LEAVE IN THE ROMANIAN LEGISLATION

Author(s): Gabriela Petruţa Ştirbu / Language(s): English Issue: 1/2024

Legal suspension of the individual employment contract can occur in several situations provided by the law. Legal suspension of the individual employment contract does not imply its termination. The contract resumes automatically after the end of the suspension period, without the need for a new agreement between the parties. However, it is important that the employer and the employee comply with the legal provisions and are aware of their rights and obligations during the suspension. The individual employment contract can be suspended in the case of maternity leave and maternal risk leave in accordance with the specific labor legislation in Romania. In Romania, the duration of maternity leave is 126 calendar days (42 days before the birth and 84 days after the birth). If the birth is multiple or if there are medical complications, this leave can be extended. The individual employment contract of the woman who is on maternity leave is suspended during this leave. During the suspension, the employee is entitled to a maternity allowance. The employer cannot denounce or terminate the individual employment contract during the maternity leave. Maternal risk leave is granted to pregnant women in risk situations for their health or that of the fetus. It is necessary to present a medical certificate attesting the necessity of this leave. The individual employment contract can be suspended in the case of maternity leave for the period indicated in the medical certificate issued by the specialist doctor. The employee is entitled to a maternity risk allowance. The employer cannot terminate or terminate the individual employment contract during the maternity leave. In both cases, the employer must respect the rights of the pregnant woman or mother in accordance with Romanian labor and social insurance legislation. Any discrimination or violation of these rights is prohibited.

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Introduction into the international research project “In search of a legal model of self-employment in Poland. A comparative analysis

Author(s): Tomasz Duraj / Language(s): English Issue: 103/2023

The purpose of the present article is to present to the readers the key concepts underlying the international research project funded by the National Science Centre and led by Prof. Tomasz Duraj titled “In Search of the Self-Employment Model in Poland. A Comparative Analysis”. The chief research task undertaken by the project participants is a complex legal analysis of self-employment – not only from the perspective of Polish regulations and case law, but also with regard to solutions existing in international and Union law as well as in selected European countries. The area of study covered such legal systems as those of the United Kingdom, Germany, Austria, Spain, France, Italy, Hungary, as well as Lithuania, Latvia, and Estonia. Most centrally, the results of the study will serve to develop an original legal model of self-employment in Poland, which will redefine the special status of the self-employed in an optimal way. The final result of the international research project are two twin studies to be published by Lodz University Press, one in Polish, in the form of a multi-author monograph, and the other in English, as two issues of the journal Acta Universitatis Lodziensis. Folia Iuridica. The present article demonstrates the scale, significance, and implications of self-employment as an atypical form of providing work, as well as the key scholarly objectives of the international research project and its importance for legal theory and practice. Next, the author discusses the concept and the plan of research work adopted in the project, the research methods applied, and the publication and popularization activities carried out by the project participants. The research undertaken under the project is innovative. This is because until now, no such large-scale study into the legal conditions of self-employment in Poland has been carried out. The final conclusions drawn in the research project make a significant contribution to the development of the theory of labour law and social security law, enriching the academic discourse in this area. An added value for Polish scholarly work is the organized study of foreign regulations on self-employment in selected European countries. Moreover, the de lege ferenda remarks prepared in the research project may be helpful to the Polish authorities in developing new legal solutions in the area of self-employment.

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Self-employment in the light of international and union law

Author(s): Mateusz Barwaśny / Language(s): English Issue: 103/2023

The chapter discusses self-employment in the context of international and Union law. The phenomenon of self-employed activity grows in popularity as a result of massive social and economic as well as technological change. The author presents various definitions of selfemployment and legal guarantees granted under international and Union law to persons who carry out business activity as a self-employed person. It should be noted that no uniform definition of self-employment exists. Moreover, there is no comprehensive approach to or coherent regulations of this matter. Legal rules concerning self-employment are fragmented and often inconsistent. The author points out that international protective standards cover all “working people”. As a result, the self-employed are accorded certain rights in areas such as: life and health, remuneration, nondiscrimination and equal treatment, parenting, rest, and protection of collective interests. Due to the growing popularity of self-employed activity and the significance of human rights, national legislations should grant persons who pursue gainful activity for their own account appropriate protective guarantees. Another important matter is counteracting bogus self-employment, which deprives numerous working people of a proper standard of protection.

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Self-employment in UK law

Author(s): Catherine Barnard,Despoina Georgiou / Language(s): English Issue: 103/2023

The United Kingdom has noted a rapid increase in the number of self-employed persons in the last forty years. This has prompted a return to the debate on the regulation of this category of workers. What are the key characteristics of the self-employed? Are they covered by labour law and social security regulations? This chapter answers these questions by looking at the legal framework applicable to the self-employed in the UK. In section 2, the author characterizes the main tendencies regarding self-employed activity in the United Kingdom as presented in a report of the Office of National Statistics for 2020. In sections 3 and 4, she analyses the definition and the legal framework that guarantee protection applicable to the self-employed. The author places particular emphasis on the tri-partite character of the British legal system in individual employment law, which includes certain categories of self-employed in the British definition of worker. Finally, section 5 is devoted to the ever more popular phenomenon of “bogus self-employment” and the legal mechanisms designed to combat it.

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Self-employment in Germany and Austria

Author(s): Rolf Wank / Language(s): English Issue: 103/2023

The objective of the chapter is to analyse legal regulations concerning selfemployed activity in force in Germany and Austria. First and foremost, the author presents the scale of self-employment in the relevant countries and the sources of its legal regulation. He goes on to characterize the definition of a self-employed person and the categories of workers that fall within its scope. Furthermore, the author analyses the scope of protection guaranteed by German and Austrian legislation to the gainfully self-employed under individual and collective labour law. The last part of the chapter is devoted to the phenomenon of “bogus self-employment” and the legal mechanisms designed to combat it.

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Self-employment in Spanish law

Author(s): Aneta Tyc / Language(s): English Issue: 103/2023

The objective of the article is to analyse legal regulations concerning self-employed activity in force in Spain. Spain is the first EU Member State to have adopted a separate law (on 11 July 2007) to comprehensively and systemically regulate the legal status of the self-employed. The Spanish 2007 LETA act aimed to sort out the situation of the self-employed and grant them additional rights. A new category of economically dependent self-employed persons was introduced and accorded special protection. The author discusses the concept and typology of self-employment, including classic, economically dependent, and bogus self-employment. In her view, the Spanish solution of regulating self-employment in a single piece of legislation appears attractive, but the criteria introduced in the law to determine the status of economically dependent self-employed do not adequately fulfil their role in practice. Their restrictive nature, far-reaching casuistry, and the criterion of economic dependence of the self-employed, who must receive at least 75 per cent of their income from a single counterparty, which is difficult to verify objectively and relatively easy to circumvent, result in a negligible number of self-employed persons benefiting from the protective guarantees provided by LETA.

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Self-employment in French and Italian law

Author(s): Aneta Tyc / Language(s): English Issue: 103/2023

The objective of the article is to analyse legal regulations concerning self-employed activity in force in France and Italy. Given that both countries are characterized by a dualism between subordinated work and self-employment, the author looks at legal constructions that do not easily fit into this division. In addition, she places great importance on discussing the social rights of the self-employed.

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Self-employment in Hungarian law

Author(s): Gyulavári Tamás / Language(s): English Issue: 103/2023

Self-employment has traditionally been regulated by the Civil Code, as a distinctive form of work apart from employment. This chapter strives to evaluate the labour law framework and labour market experience of self-employment. First, the Hungarian legal provisions on self-employment will be highlighted, including labour law, civil law and social security law. This will be followed by an evaluation of the available data on labour market trends regarding the various groups of self-employed workers, such as genuine and false self-employment, and economically dependent work. After this summary on employment data, the legal protection or scope of employee rights enjoyed by self-employed persons will be scrutinised. Finally, I will examine the Hungarian legal mechanisms to combat false self-employment. As a whole, the paper will provide a picture of the legal environment of self-employment with laws, trends and some evident flaws. I will strive to highlight the main driving forces behind self-employment and related labour law policy.

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Wewnątrzzakładowa procedura zgłaszania naruszeń prawa a ochrona interesu przedsiębiorcy

Author(s): Marzena Szabłowska-Juckiewicz,Aneta Giedrewicz-Niewińska / Language(s): Polish Issue: 4/2023

Directive 2019/1937 comprehensively regulates the issue of reporting violations of the law and the protection of persons making such a report. The EU legislation formulates obligations regarding the establishment of channels and procedures for making internal reports, setting the framework for such a procedure and leaving it to national legislatures to specify it. The Polish legislature took action in this regard by preparing the draft Act of 5 January 2023 on the protection of persons reporting violations of the law. Due to the sensitivity of the matter, the implementation of formal mechanisms for reporting irregularities in the workplace is undoubtedly associated with many challenges. Most often in this context, challenges related to ensuring sufficient whistleblower protection are mentioned. Meanwhile, it also seems necessary when implementing such procedures to notice the challenge of the protection of entrepreneurs’ interests. A number of solutions included in the Polish draft act raise doubts and objections as to the correct implementation of the EU directive.

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TÜRKİYE’ DE EMEK PİYASASI TEMEL SORUNLARININ İNSAN HAYSİYETİNE YAKIŞIR İŞ (DECENT WORK) AÇISINDAN İNCELENMESİ

Author(s): Hacı Yunus Taş,Mahmut Küçükoğlu / Language(s): Turkish Issue: 60/2023

Correcting and improving working conditions in favor of employees has been an ongoing issue for labor markets for more than two centuries. This struggle continues today in the field of social policies. In addition to developing new measures against possible problems related to working life, the area of interest of social policy is also expanding. Today, depending on global developments, especially in developing countries, as a result of economic growth; Topics such as flexible working and the fact that some jobs can be done more simply and faster due to the fact that some jobs can be done online are discussed. It is accepted that developed countries and large enterprises can provide significant advantages in increasing their competitiveness due to their advantages in these areas. In recent years, in many countries; It is seen that problems such as the decrease in wages, the increase in insecure and unfair jobs, and the negative impact on working opportunities are discussed. As a result of these developments, in the report presented at the 87th International Labor Organization (ILO) conference held in 1999, with the aim of improving working conditions and making them compatible with human dignity; Based on the idea that employees should be supported to obtain a job appropriate to their abilities on the basis of security, dignity, equality and freedom, the concept of "Decent Work" has taken its place on the international agenda. This concept, which can be translated into Turkish as "Decent Work" or "Work Decent with Human Dignity", has been on the agenda in working life in Turkey since 2003 and has been a debated issue in the last twenty years. In this article, the decent work indicators of the International Labor Organization (ILO) will be presented and Turkey's current problems in the labor market and deficiencies in decent work will be evaluated. In addition, considering the level of technology and information technologies today, and in the light of academic studies on this subject, answering the question of what can be done based on Turkey's labor market problems and the concepts of decent work or work worthy of human dignity, and finding solutions on the basis of "decent work" has been attempted to be revealed.

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Принципът на служебното начало при прилагането на принудителни административни мерки от Инспекцията по труда

Author(s): Vesela Koleva / Language(s): English,Bulgarian Issue: 2/2023

In this article, a study of the ex proprio motu principle in administrative proceedings on the application of coercive administrative measures for violations of the labour legislation in higher education institutions is carried out by means of an analysis of the normative acts regulating the issuance of mandatory prescriptions by the control bodies of the labour inspection. The questions are considered of what are the limits of academic autonomy and of whether there is interference in the activities of the above-mentioned institutions in the exercise of the control bodies’ powers. In conclusion, proposals are made for changes in the provisions of special laws and by-laws regulating the performance of inspections for compliance with labour legislation, as well as the application of coercive administrative measures in the institutions

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THE RELEVANCE OF THE CONCEPT OF DISCRIMINATION IN LEGAL EMPLOYMENT RELATIONS

Author(s): Dragos Lucian Radulescu / Language(s): English Issue: XXII/2023

Discrimination, as a legal institution, concerns the ways of establishing differentiations through the application of different legal treatments regarding the fundamental rights of people in comparable legal situations, thus affecting the principle of legal equality. As an effect of acts of discrimination, different legal situations can be created, including through the use of identical methods of treatment in the case of people not in comparable situations. The criteria applicable to the legal institution of discrimination have been clarified and limited as a result of the adoption of international norms, subsequently acquiring new legal values with their adoption in the national legislative system of various states. The article presents the evolution of the concept of non discrimination, in international and European law, as well as the main elements necessary for the recognition and interpretation of the rules on equal treatment between employers and employees in legal employment relationships.

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Local Working of Patents: a Comparative Study of Europe and Indonesia

Author(s): Ika C. Dewi,A. Harits Nu’man,Neni Ruhaeni,Dini Dewi Heniarti / Language(s): English Issue: 162/2023

This study analyzes the implementation mechanism of local working patents from both European and Indonesian perspectives, using normative research methods and secondary data obtained from library research. The implementation of Patent Act Number 13 of 2016 has faced criticism from various parties, including patent holders who find it complicated and difficult to comply with the local working patent provisions. The Ministry of Law and Human Rights has issued regulations to facilitate patent holders who are unable to implement Article 20 by allowing them to request patent postponement. However, the Job Creation Act No. 11 of 2022 has made it easier for patent holders to fulfill their obligations regarding local working patents. The Directorate General of Intellectual Property (DGIP) is responsible for monitoring, evaluating, and reporting on intellectual property protection. However, rules and procedures related to monitoring mechanisms, especially those related to implementing local working patents, have not been fully regulated by the DGIP Office.

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Recovery of Claims Arising from Abuse of Non-insurance Social Security Benefit System

Author(s): Gabriela Kukalová,Lukáš Moravec,Jana Hinke,Michaela Chladíková / Language(s): English Issue: 5/2023

The paper presents the volume of debts incurred as part of non-insurance social security benefits in the Czech Republic from 2016 to 2020 and defines the structure of these debts by individual types of non-insurance social security benefits, where 25% is attributable to parental allowance, followed by housing allowance (17%) and subsistence allowance (20%). The analysis deals with the number of debts broken down into paid, collected, settled by other means, written off for uncollectibility or extinction ofthe right. The study works with unique data obtained by summarisation from the application programmes used by the Labour Office of the Czech Republic, which showed a continuous decrease in total identified claims by 46% between 2016 and 2020. An analysis of time series and a regression and correlation analysis are performed in the paper. These methods confirm a decreasing trend in the number of total debts and a decreasing proportion of paid debts over time, in contrast to the ratio of outstanding debts, which has been increasing over time. Lastly, they also identify variability in the structure of social security benefits, i.e., inconsistency in the share of individual benefits over the period under review. Social expenditures are fundamental to state spending, but addressing their potential misuse is a sensitive political issue. From an economic perspective, this paradoxical situation leads to overlooking potential resources that could be potentially available through the elimination of purposeful exploitation of the social system, leaving the question of the frequency of purposeful claiming unanswered. Any potential political decision to reduce social expenditures, without an economic evaluation of the frequency and volume of purposefully claimed benefits from the social system, may not be optimal.

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The New Romanian Legislation Regarding Some Measures of Protection for People with Intellectual and Psychosocial Disabilities – Ethical Aspects and Implementation Controversies

Author(s): Bogdan Mălinescu / Language(s): English Issue: 4/2023

The new Romanian legislation regarding some measures of protection for people with intellectual and psychosocial disabilities was aimed at combating social exclusion and discrimination, and encouraging the active participation of these categories of people in civil and socioeconomic life. This is not only a benefit, but also a fundamental change in the provision of medical evidence, essential for courts in the establishment of a specific measure of protection for a specific individual with intellectual or psychosocial disabilities, which entails discussions of pros and cons.This presentation proposes a review of the problems raised when analyzing the cases in which the application of protective measures for people with intellectual and psychosocial disabilities is requested, starting from the old legal regulations of "putting under interdiction” and continuing with the current regulation regarding the establishment of "judicial counseling" and "special tutelage”. It also outlines future possible developments of the medical evaluation activity in this field.In this analysis, the authors present conclusions drawn from a comparison between the previous Psychiatric Medicolegal Expertise Reports and the current Medical and Psychological Assessment Reports of people with intellectual and psychosocial disabilities.To add, a study conducted at the Ilfov Medical Service in 2000 regarding the expertise of placing under interdiction provides a global image of the cases in which the establishment of protective measures was requested (analysis by sex, age, types of pathologies, persons who requested such measures, types of conclusions of psychiatric medicolegal expertise, difficulties encountered, etc.).The pluses and minuses of the new legislation in the field, the ethical aspects and the difficulties or obstacles that may arise in current practice when carrying out the medical and psychological reports required by law are analyzed through the lens of the experience of the medicolegal network that has been carrying out this expertise until now

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Možnosti podpory aktivního otcovství v ČR

Author(s): Lucia Bartůsková / Language(s): Czech Issue: 2/2017

Active fatherhood is a modern phenomenon which penetrates very slowly into the Czech Republic. The degree of involvement of Czech fathers in childcare is low compared to other developed countries. The aim of the paper is to point out the real possibilities of supporting modern fatherhood in the Czech Republic. The presented proposals are based on attitudes of Czech men and their relationship to active involvement in childcare. The research results show that the level of involvement of men in day-to-day care for children and the household corresponds to the real conditions created by the state and the employers. The implementable measures are examined in terms of preferences of Czech fathers, and at the same time on the basis of positive experience from abroad. The proposed measures have in common two things, those are flexibility and financial support.

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ESTE MUNCA UN „LUCRU” JURIDIC?

Author(s): Iulian Dobrinescu / Language(s): Romanian Issue: 2/2023

Labour, is it a “thing” in the juridical sense? An answer to this question has been given in the affirmative recently. This is largely an error, as it entails a confusion of juridical categories and a failure to distinguish between distinct notions. Such a view, moreover, represents an unnecessary break with established views on how to define “things”. Interestingly, this reduction of labour to the status of a tradable thing is connected to a turn towards the “immaterial" in the thought of some jurists, who are beginning to conflate notions such as “goods”, “patrimonial rights” and “incorporeal things”.

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„UBERIZAREA” MUNCII. RĂMÂNE PLATFORMA DIGITALĂ DE MUNCĂ UN SIMPLU INTERMEDIAR, AVÂND ÎN VEDERE CONTROLUL SEMNIFICATIV EXERCITAT ASUPRA „PLATFORM WORKERS”?

Author(s): Albert Albanezi / Language(s): Romanian Issue: 2/2023

The 'uberization' of work describes a digital labour market in which platforms act as mere intermediaries, with services provided by self-employed users. While the reasoning is valid for some platforms, at least in the case of location-based mobile apps it can be questioned. In our analysis we will try to show that, starting from the conditions of the service provided, which are unilaterally set by the platform, it cannot be denied that there is a significant control exercised over 'platform workers', by providing some relevant case law in this respect. Consequently, as will be shown in the conclusions, the situation is diffuse since these workers are performing an activity which they cannot organize themselves, although they are theoretically self-employed.

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REPERE PRIVIND STATUTUL LEGAL AL „PLATFORM WORKERS”. PROPUNEREA DE DIRECTIVĂ PRIVIND ÎMBUNĂTĂȚIREA CONDIȚIILOR DE MUNCĂ PENTRU LUCRUL PE PLATFORME VS. „TESTUL ABC”

Author(s): Albert Albanezi / Language(s): Romanian Issue: 3/2023

The ‘gig-economy’ or ‘on demand work’ is an embodiment of the digitised labour market, created and developed with the help of digital work platforms that can take the form of mobile applications. In theory, the relationship between platforms and workers is not a labour relationship, i.e. it is not continuous. In practice, however, the control exercised over the service provided can be interpreted as a manifestation of authority by the employer. In an attempt to align factual reality and appropriate qualification, this paper presents two similar approaches, namely the Proposal for a Directive on the improvement of working conditions for work on platforms and the ‘ABC test’ applicable in California. In our analysis we present the legal presumptions on which these interpretations are based and show the possible implications.

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The Ability to Balance Parents' Work and Care for Children with Disabilities: The Example of the City of Niš

Author(s): Bojana Vranić,Ljiljana Skrobić,Nenad M. Stanojević / Language(s): English Issue: 03/2023

By conducting this study, we wanted to ascertain how the use or non-use of the social protection service of personal assistant to a child is associated with the employment of the parents of children with disabilities. Ten parents whose children use and do not use this service were interviewed, and the results were processed by thematic analysis. The key findings of the study show that there is a difference between the parents' employment status, in regard to whether their children use the service of personal assistant to a child, i.e. that the use of this service enables their labor market inclusion. Furthermore, the labor market non-inclusion results in the unfavourable material situation of the family, and the long-term inability to exercise their right to a pension. Based on the results, potential solutions may include: the possibility of reduced working hours, the possibility for parents to be formally employed as a child's personal assistant, and the possibility of using the personal assistant service.

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