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SINTEZE DIN JURISPRUDENŢA CJUE -Dreptul muncii

Author(s): Anghel Răzvan / Language(s): Romanian Issue: 3/2021

Article 2(2)(a), Article 4(1) and Article 5 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding national legislation which imposes an absolute bar to the continued employment of a prison officer whose auditory acuity does not meet the minimum standards of sound perception prescribed by that legislation, without allowing it to be ascertained whether that officer is capable of fulfilling those duties, where appropriate after the adoption of reasonable accommodation measures for the purposes of Article 5 of that directive.

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JURISPRUDENŢA INSTANTELOR ROMANE ÎN UNELE CAUZE ÎN CARE AU SESIZAT CJUE CU ÎNTREBĂRI PRELIMINARE (Cauzele C‑133/17 și C‑134/17, C‑12/17şi C‑614/15)

Author(s): Anghel Răzvan / Language(s): Romanian Issue: 1-2/2022

Referral to the CJEU for the pronouncement of preliminary rulings regarding the interpretation of European Union law cannot have a purely theoretical purpose (e.g. the Court Ordinance of October 7, 2013in case C-82/13) but a necessarily practical one, such as to allow the national court to resolve the specific dispute with which it is vested. Therefore, knowledge of the judicial decisions pronounced by the national courts after receiving the answer to the preliminary question from the CJEU is very important to evaluate the implications of the CJEU jurisprudence in the law of the member states and the effectiveness of the dialogue between it and the national courts. Next, the decisions of the courts in Romania are presented in some cases in which the CJEU was referred with preliminary questions, respectively those that were resolved in the cases registered on its roll with no. C-133/17 ?i C-134/17, C-12/17 and C-614/15.

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DREPTURI SALARIALE DATORATE DE ANGAJATORUL AFLAT ÎN INSOLVENŢĂ. PERIOADA PENTRU CARE SE PLĂTESC DREPTURILE SALARIALE DIN FONDUL DE GARANTARE PENTRU PLATA CREANŢELOR SALARIATE. DIRECTIVA NR. 2002/74/CE /

Author(s): Anghel Răzvan / Language(s): Romanian Issue: 1-2/2022

The applicant was employed by company [...], which entered the bankruptcy proceedings. The defendant was ordered by the first instance court to pay the applicant the sum of RON 4500, representing salary entitlements relating to the months of January to March 2013. The applicant did not appear with salary claims in the preliminary table of claims entered by the liquidator’s own motion, so that she filed a claim against the debtor's estate and lodged an objection. The employee requested payment of salary rights not paid by the insolvent employer under Law No 200/2006 and Directive 2002/74/EC. The claimant's claim was dealt with by the Bucharest Municipal Employment Agency – A.M.O.F.M București, by issuing Provision No [...] concerning the rejection of the application. This provision issued by the territorial agency in accordance with Article 21(1) and (3) of the Law was challenged by the applicant in the present case. The court of first instance upheld the appeal and ordered the defendant to pay the claimant to the applicant the sum of RON 4500. Limitation period applies only to the exercise of the substantive right to legal action. It does not appear from the normative act that it is stipulated in how long/within which the applicant can submit the request provided for in Article 19(2) of Law. The time limit for initiating proceedings is a special one, shorter than three years. Law does not distinguish between stages of insolvency and does not impose a time limit by which the respective salary claims must be reported. The mechanism involving the payment of salary claims, including those payable from the Guarantee Fund, involves both the insolvenhip administrator and the liquidator, which means that the period of bankruptcy is also envisaged. Court finds that the defendant rightly points out that the applicant does not fall within the provisions of Article 15(2) and (3) of Law No 200/2006. Claims that “succeed” the date of opening of the proceedings are the claims of the employees of the employer in a state of insolvency after the month in which the proceedings were opened. Claims arising from activities relating to the closure of Claims that “succeed” the date of opening of the proceedings are the claims of the employees of the employer in a state of insolvency after the month in which the proceedings were opened. Claims arising from activities relating to the closure of business and the preservation of assets during the bankruptcy period are paid from the debtor’s assets.

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APLICAREA DREPTULUI UE ÎN JURISPRUDENŢA NAŢIONALĂ - ASIGURĂRI SOCIALE

Author(s): Anghel Răzvan / Language(s): Romanian Issue: 3/2022

A certificate issued by the Spanish employer, accompanied by the annex regarding the "contribution base", not being accompanied by their legalized translation, carried out by an authorized translator and not accompanied by the forms required by law, do not have the vocation to prove the insurance periods that are the subject of the legislation Spanish in the respective interval, because that document does not come from the competent institution in the country where the applicant claims to have carried out activity and which must be found in form E 207. With the submission of this latter certificate, the insured has the right to capitalize on the internship carried out in another EU state under EC Regulation 883/2004.

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APLICAREA DREPTULUI UE ÎN JURISPRUDENŢA NAŢIONALĂ - DREPTUL MUNCII

Author(s): Anghel Răzvan / Language(s): Romanian Issue: 4/2022

§1. Noţiunea autonomă de concediere din cuprinsul Directive 98/59. Inaplicabilitatea acesteia în aczul unei concedieri individuale reglementate de dreptul national. (The autonomous notion of dismissal contained in Directive 98/59. Its inapplicability in the case of an individual dismissal regulated by national law. ) §2. Conţinutul obligației de consultare prevăzute de articolul 2 din Directiva 98/59. Consecinţele nerespectării acesteia. Despăgubiri pentru prejudicial moral produs salariatului: necesitatea caracterului disuasiv şi prejumarea prejudiciului. (The content of the consultation obligation provided for in Article 2 of Directive 98/59. The consequences of its non-compliance. Compensation for moral damage caused to the employee: the need for dissuasiveness and presumption of the damage. ) §3. Noţiunea autonomă de concediere din cuprinsul Directive 98/59. Condiţiile în care încetarea raporturilor de muncă prin acordul părţilor poate fi considerate concediere în acest sens. (The autonomous notion of dismissal contained in Directive 98/59. The conditions in which termination of employment relations by the agreement of the parties can be considered dismissal in this sense.)

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Occupational Health and Safety and Challenges Posed by Protecting the Health of Employees Working with Nanomaterials: How to Draft Laws So That the Obligation to Ensure Safe Working Conditions Is Performed Properly

Author(s): Maciej Jarota / Language(s): English Issue: 3/2023

The intense development of nanotechnology in recent years poses the basic question about the safety of employees who work with nanomaterials. The study attempts to determine how employers should regulate health protection when working with nanoparticles. Employers should be aware of the importance of the risks associated with nanotechnology and their responsibility for worker health and safety. The study is a continuation of the author’s previous analyses of ways to regulate occupational safety and health in the use of nanomaterials. The author examines the theory of responsive regulation in the context of health and safety with nanomaterials and the importance of dialogue in this regulatory process. The regulatory agencies should intervene in this area depending on the attainment of the assumed objectives of the law. The sense of responsibility for the effect could improve the quality of OH&S with nanomaterials.

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Czy pracownik ma obowiązek dzielenia się wiedzą?

Author(s): Sebastian Kwiecień / Language(s): Polish Issue: 3/2023

Nowadays, access to information is practically unlimited, knowledge has undergone a kind of democratization, it is available to virtually everyone who feels the need to acquire it. The employee can quickly obtain the necessary information and possibly use it. Therefore, can knowledge sharing be an attractive way of knowledge flow in the enterprise? Undoubtedly yes, it all depends on how the employer manages this knowledge, stimulates and encourages employees to share knowledge. Regardless of the mechanisms used by the employer, the employee is not obliged to share knowledge if it goes beyond the scope of work for which the parties agreed in the employment contract. Thus, an employee cannot bear both organizational and material responsibility if employee is not shared with other employees.

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Noclegi pracowników delegowanych ﬁnansowane przez pracodawcę a przychód ze stosunku pracy. Glosa aprobująca do wyroku NSA z 1 sierpnia 2023 r., II FSK 270/21, LEX nr 3612004

Author(s): Robert Zieliński,Mateusz Zawadka / Language(s): Polish Issue: 4/2023

Wide definition of “employment income” set out in Polish Personal Income Act of 26 July 1991 makes it challenging for the tax authorities and administrative courts to qualify remuneration items as taxable income. A special attention is focused on benefits in-kind which can include expenditure on travel, board and lodging for posted workers. So far the well-rooted line of case law, based on domestic tax and labor law regulations in Poland, inclined treatment of such benefits in-kind as employment income of posted workers. The analyzed judgment by the Supreme Administrative Court is of groundbreaking nature, considering the obligations of posting employer lined in the Directive 96/71/EC and Directive (EU) 2018/957 amending Directive 96/71/EC – both concerning the posting of workers in the framework of the provision of services.

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A Comparative Look at the Duty to Mitigate Loss: the Consequences of the Violation of This Duty

Author(s): Altinok Ormanci / Language(s): English Issue: 1/2024

The duty to mitigate loss is a general principle of law that serves to limit the liability of the party that has caused injury to the extent that the injured party has not demonstrated the diligence expected from the latter. However, this duty also serves the purpose of ensuring economic efficiency. While the classic understanding requires that, according to the principle of pacta sunt servanda, the interests of the injured party should be prioritized, today, the contract also refers to the cooperation between the parties. Therefore, reduction in the amount of claimable compensation should not be the sole sanction vis-à-vis the injured party that has violated the duty to mitigate loss. Otherwise, the injured party may escape the consequences of having violated the duty to mitigate loss by resorting to other optional rights. However, in order to ensure economic efficiency, in case the injured party violates the duty to mitigate loss, sanctions should also be foreseeable in terms of other optional rights. This study will evaluate the effect of the violation of the duty to mitigate loss in particular, with regards to request for specific performance and rescission of contract.

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Compliance Officers in Serbia: Employees or Interim Managers?

Author(s): Iva Tošić,Jovana Misailović / Language(s): English Issue: 2/2023

The first part of the paper analyzes the principle of legality in business and the basic features of the compliance function. Taking into account that the principle of legality in business is one of the core pillars for achieving good corporate governance, having a person who will perform the compliance function is of great significance. The legal position of the compliance officer may be differently regulated, whether as an employee or an outsourced expert. The second part of the paper deals with these two options taking into account the standing practice in the United Kingdom and Germany, where the compliance function has a long tradition. These examples may be challenging for Serbia to follow, since its compliance function is at the very beginning, although having a compliance officer (team) as an employee should be the ultimate objective. In the meantime, the authors propose for Serbian companies to hire compliance officers as interim managers as a solution.

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THE CAUSES OF EXONERATION FROM DISCIPLINARY LIABILITY

Author(s): Irina Travinskaia,Natalia Chiriac / Language(s): Romanian Issue: 3/2020

This article deals with one of the forms of legal liability specific for labour law - the disciplinary liability. Disciplinary liability can be hired only if all constitutive elements of misbehavior are met, the absence of any of them makes the misbehavior and as the consequent the disciplinary liability can not exist. However, there are situations, when the act seems to meet the features of disciplinary liability, but some specific circumstances existing at the time of its commission, lead to the conclusion that in reality, the behaviour of the author is not illegal, anticipating that they are not culpable and author must be exonerated from disciplinary liability. The article substantiates the relevance and significance of development of cases on exemption from disciplinary liability in the Republic of Moldova, by analysing some problems of the instruction and formulating solutions to adopt the provisions on exoneration from disciplinary liability, considering that labour law is intended to protect the labour rights of the weakest protected part of labour relations - the employee.

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APLICAREA DREPTULUI UE ÎN JURISPRUDENŢA NAŢIONALĂ

Author(s): Răzvan Anghel / Language(s): Romanian Issue: 1-2/2023

The dissolution of a public enterprise, charged with the provision of a public service, followed by the taking over and continuation of its activity by the town hall, constitutes a transfers of undertakings within the meaning of Directive 2001/23/EC. In this case, the abolition of some jobs of the former public service and the dismissal of the employees who occupied them is illegal.

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O NIEWAŻNOŚCI UCHWAŁ ORGANÓW SAMORZĄDÓW ZAWODOWYCH – UWAGI NA PRZYKŁADZIE SAMORZĄDU ZAWODOWEGO RADCÓW PRAWNYCH

Author(s): Kamil Dąbrowski / Language(s): Polish Issue: 3/2023

This article aims to reflect on the effects of illegal resolutions of professional self-government bodies in light of the concept of conventional activities. Assuming that the mentioned resolutions are exam- ples of such activities, the author proposes that such a contradiction should be treated not so much as a basis for the invalidity of the resolution, but as a premise for repealing them or establishing their non-existence. Such a classification leads to the formulation of several more detailed conclusions, particularly the thesis on the permissibility of resolutions contrary to law to produce legal effects.

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Attack on social and labor rights in Brazil

Author(s): Marcio Pochmann / Language(s): English Issue: 3/2017

Since 2016, Brazil has been living with signs of a democratic rupture that ended the previous virtuous cycle of economic growth with social inclusion. In addition, the resumption of the neoliberal prescription has been destructive of social and labor rights, concomitant with high unemployment and generalization of precarious jobs. The connection of what occurs in Brazil with the more general transformations in the world of work allows us to broaden the context in which current capitalism favors the attack on Brazilian social and labor rights. As a result, there are reactions that seek to gather forces that are not always sufficient to face the downgrading of living and working conditions.

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Budżet obywatelski jako instrument zarządzania publicznego. Perspektywa aksjologiczna

Author(s): Waldemar Jagodziński / Language(s): Polish Issue: 46 (5)/2023

Participatory budgeting is a multidisciplinary issue that attracts attention of various professionals, including lawyers, administrators, sociologists, and even economists. Due to the participatory potential inherent in this institution, it is currently one of the most important instruments of public management. Therefore, it is worth looking at it from an axiological perspective to answer the question of whether the participatory budget has only a relational value or is also characterized by an autonomous value. The aim of this article is, therefore, to discuss the axiological nature of the participatory budget institution. To achieve the goal formulated in this way, the dogmatic and legal method was used, which made it possible to analyze the current legal status and views of the doctrine. Additionally, the method involved analysis and criticism of the literature, which allowed not only to explain the essence of social participation on the basis of selected sciences but also to formulate an answer to the question whether the participatory budget institution has a relational or autonomous value. The analysis shows that, from the point of view of local government, the participatory budget has both a relational value, because it receives doctrinal, political and legal values, and an autonomous one. This is because the use of this tool by local government can affect the evolution of cultural and social values of local communities.

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ZNACZENIE SĄDU W ROKOWANIACH ZBIOROWYCH

Author(s): Łukasz Pisarczyk / Language(s): Polish Issue: 1/2023

The article analyzes the reasons, areas and forms of court involvement in collective bargaining. Al-though the autonomy of social partners is the foundation of collective bargaining, the involvementof the court is necessary to protect freedoms and fundamental rights of individuals and to ensure theharmonious functioning of social dialogue. Due to the specificity of collective relations in Poland,the involvement of the court is significant. However, there are some areas (e.g. collective disputeresolution) where there is a lack of appropriate collective procedures tailored to features of disputesarising in this area.

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POSEBNOSTI RADNOG ODNOSA KAZALIŠNIH UMJETNIKA I KAZALIŠNIH RADNIKA PREMA NOVOM HRVATSKOM ZAKONU O KAZALIŠTIMA

Author(s): Dragan Zlatović / Language(s): Croatian Issue: 2/2023

Theatrical art enjoys numerous peculiarities, and one of these peculiarities is manifested in the regulation of working relationships, which cannot be placed in the legal framework of the so-called of the “classical employment relationship”, but due to its dynamism and specificity, the employment relationships of theater artists, especially those employed in public theaters, must have a special sui generis status. In the paper, the author initially provides an overview of the new theater legislation in the Republic of Croatia, and further analyzes the new legal solutions and peculiarities of employment contracts in the theater industry in relation to earlier regulations in this area, which analysis also includes the associated implementing regulations. Finally, the author gives his critical review of the new legal arrangements of the institute of workers’ representatives in the theater council as an employer’s body with certain proposals de lege ferenda.

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YABANCI UYRUKLU (GÖÇMEN, SIĞINMACI VB.) ÇALIŞANLARIN ÜLKEMİZDE SİGORTALI VE SİGORTASIZ ÇALIŞMA ESNASINDA 6331, 4857 VE 5510 KANUNLARINA GÖRE DEĞERLENDİRMESİ VE ÇALIŞANLARA ÇALIŞMA KOŞULLARI İÇİN ANKET HAZIRLANMASI

Author(s): İsmail Aymelek / Language(s): Turkish Issue: 61/2024

This research aims to evaluate the knowledge levels of foreign employees in Turkey regarding labor law and international labor law. In the research, a survey was conducted on the participants' knowledge levels about the practices within the scope of the International Labor Law No. 6735 and the Labor Law No. 4857. The findings show that, in general, the participants' level of knowledge about these laws is high. However, there are low levels of knowledge on some subjects. The results emphasize the importance of training and information activities to increase the knowledge level of foreign employees regarding labor law and international labor law.

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KÜRESELLEŞME SÜRECİNDE SOSYAL GÜVENLİK ÜZERİNE KURAMSAL BİR İNCELEME

Author(s): Mukaddes Kiliç,Şanser Vurgun / Language(s): Turkish Issue: 61/2024

With globalization, changes in social, economic, political and cultural dimensions have started a new era. In the globalizing world, along with the developments experienced, some changes and weakenings have emerged in the understanding of the social state. This has put unemployment, income inequality and social injustice on the state as problems that need to be resolved. In other words, globalization has led to the deterioration of social security, as it has affected many things. In this study, the effects of globalization on the social state have been tried to be mentioned, and answers have been sought to questions such as what is the degree of interaction between these two concepts, and what kind of effects the connection between these two phenomena will have on social life. With this study, which was carried out by the literature review method, the connection between globalization and social security phenomena was discussed and results and suggestions were tried to be given.

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MENSTRUAL LEAVE AND GENDER EQUALITY

Author(s): Mario Reljanović,Jovana Rajić Ćalić / Language(s): English Issue: 1/2024

Menstrual leave is one of the latest developments in Spanish law. By amending their labour law in order to recognize the right to menstrual leave, Spanish legislators have brought this topic back into the spotlight of European labour law. Although recognized in various legislations around the world, most notably in Asia, the right to menstrual leave has not been established as an international labour law standard. Therefore, there are many open questions concerning its recognition, the content of the legal institute, as well as the consequences of its introduction into the labour legislation. Authors deal with the question whether menstrual leave is a need of women today, so its introduction to labour law can be treated as a progressive legislative development. If so, what is the justification for introducing such special leave and in which circumstances it should be provided? In order to analyse these questions in more detail, research has been divided into several sections. After the introductory part, authors deal with the reasonings pro et contra introducing menstrual leave to national legislation. This is followed by comparative analysis of normative solutions in all countries that recognize the right to menstrual leave, and brief analysis of the possibility to introduce this right to the EU acquis. Finally, in concluding remarks authors offer the broader picture of the potential role and position of the menstrual leave in the national labour law and antidiscrimination law.

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