Gyulavári Tamás, Kártyás Gábor
The Hungarian flexicurity pathway?
CONTENTS, FOREWORD
Contents
I. THE NEW HUNGARIAN LABOUR CODE: DESIRES AND REALITY
1. Background and objectives of the reform
1.1. Background of the 2012 reform
1.2. Criticism of the former Labour Code
1.3. Declared governmental objectives of the 2012 reform
1.4. Main elements of the reform: varied sources of flexibility
2. Contractual sources of labour law: revival?
2.1. The role of collective agreements under the 1992 Labour Code
2.2. Collective agreements in practice: low coverage and weak contents
2.3. Sector level collective bargaining: much ado about nothing?
2.4. The reasons for the low collective agreement coverage
2.5. The enhanced role of collective agreements: derogation from the Labour Code allowed in almost every aspect
2.6. Decentralization of collective bargaining: a harmful step
2.7. Collective agreement concluded by a Works Council: an absolute dogmatic failure
2.8. Employment contract: dangerous increase of in peius derogations
2.9. Regulation of company statutes: a real step forward?
3. Individual labour provisions
3.1. Extremely flexible regulation of working time and wage supplements
3.2. Unlawful termination of employment: radically limited sanctions
3.3. Increased liability of employees for damages
3.4. Limited liability of employers for damages
3.5. Atypical employment relationships: flexible regulation and new forms
4. Trade unions: the ultimate losers of the reform?
4.1. The changing relationship of trade unions and Works Councils
4.2. Trade unions versus Works Councils: reshuffled rights
4.3. Shrinking rights of trade unions
4.4. Trade unions: surely not the winners of the reform
5. Objectives and reality
5.1. Creation of new jobs through the flexibilization of labour law?
5.2. Minimum harmonisation of EU law
5.3. Approximation of labour law to civil (private) law
5.4. Increasing regulatory role of contractual sources of labour law
5.5. Adjustment of the regulation to the needs of small- and medium sized employers
5.6. Simplification of the Labour Code
5.7. Flawed implementation of flexicurity: flexibility above all
6. Appraisal of the reform: an unambiguous move towards flexibility
II. STRUCTURE OF LEGAL RELATIONSHIPS AIMED AT WORK: UNDER CONTSRUCTION?
1. The present system of work relationships
1.1. Origins and recent development of the binary system
1.2. The effect of harmonisation on the labour law structure
1.3. The proliferation of atypical employment relationships
2. The legal notion of 'employment relationship'
2.1. The statutory definition of employment relationship
2.2. The potential impact of collective agreements on the features of employment relationships
2.3. Primary and secondary features of an employment relationship
2.4. Legal aspects of the legal relationship's qualification
3. Self-employment: is a statutory definition indispensable?
4. Prohibition of false self-employment: fighting windmills?
4.1. Are the parties free to choose the type of contract?
4.2. The incentives of bogus self-employment
5. 'Other legal relationships' aimed at work: the grey zone?
5.1. What is the grey zone?
5.2. Home work: an employment relationship with features of independent contracting
5.3. Security personell: civil law contract with some employee protection
6. Minimum floor of rights
6.1. Development of the minimum protection regimes
6.2. Equal treatment for all workers
6.3. Social security services with a general personal scope
6.4. Restricted right to health and safety protection
7. Proposal on quasi employees: a feasible concept?
7.1. Efforts to widen the scope of the Labour Code
7.2. Evaluation of the proposal on employee-like person
7.3. The place of quasi-employees in the structure of labour law definitions
7.4. The proposed employment rights: unambitious advance
7.5. Critique and aftermath of the proposal
8. Regulation of public employment: extreme fragmentation
9. Conclusions: slowly evolving structure of employment law
III. ATYPICAL FORMS OF EMPLOYMENT
1. Atypical employment: always precarious?
2. Atypical employment in the new Labour Code
3. Fixed term employment
4. Simplified employment
4.1. The predecessor in the nineties: casual employee's booklet
4.2. The features of simplified employment
4.3. The applicable labour law rules
4.4. Common charges and administration
5. Household work
6. Part-time employment
7. Teleworking, homeworking
8. Executive employees
9. Incapacitated workers
10. Publicly owned employers
11. Employment relationships involving multiple employers
12. Summary
IV. TEMPORARY AGENCY WORK AND OTHER THREE-WAY EMPLOYMENT RELATIONSHIPS
1. The concept of temporary agency work in Hungarian labour law
2. The toothless lion: the rule of temporariness
3. Who qualifies as an agency? Even foreigners - in principle
4. The legal relationship between the temporary work agency and the user company
5. Restraints and limitations
6. Deviating from statutory provisions: collective agreement, employment contract and the civil law contract between the two 'employers'
7. The employment contract for temporary agency work
8. Liability for damages
9. Equal treatment: 'near conformity'
9.1. Wages in practice
9.2. The principle of equal treatment and its exemptions
9.3. Exemption of permanent employment
9.4. Exemptions in regard to the employee and the user company
9.5. A possibility to deviate in a collective agreement
9.6. Are exemptions stronger than the main rule?
10. Special rules on the termination of the employment relationship
10.1. Dismissal due to the termination of the assignment
10.2. The 'cropped' notice period
10.3. Severance pay - is it due or not?
11. Collective rights of agency workers
12. Similar scenarios: cases including multiple employers
12.1. Temporary assignment
12.2. Employment relationship with multiple employers (employee sharing)
12.3. Dividing employers' rights and obligations in employee sharing
12.4. The termination of the employment relationship in employee sharing
12.5. Employment relationship of school associations
12.6. No annual leave?
12.7. Concerns of legal harmonisation
12.8. The positions of the third party
13. Summary
V. EMPLOYMENT DISCRIMINATION: DOWN BY LAW?
1. Employment discrimination law before ETA
1.1. Socialist heritage: empty declarations
1.2. The legal-branch model lives on after 1990
1.3. Lack of case-law
2. Practice of the Constitutional Court
2.1. Constitutional provisions regarding discrimination
2.2. The anti-discrimination test of the Constitutional Court
3. Effects of EU law
3.1. First wave of harmonisation: polishing up the 1992 Labour Code (2001)
3.2. Second wave of harmonisation: birth of a new legal branch (2003)
3.3. Effects of EU law: form and contents
4. Debate surrounding the form of the legislation
4.1. Do we need a general anti-discrimination law?
4.2. The Constitutional Court's conservative approach to formal issues
4.3. One general Act or several Equal Treatment Acts?
5. Scope of the ETA in employment
5.1. Discrimination grounds and their limits
5.1.1. The open-ended list of discrimination grounds
5.1.2. The narrow interpretation of "other characteristics"
5.2. Employment relationships: the unrestricted scope of the ETA
5.2.1. The covered legal relationships aimed at employment
5.2.2. Civil law contracts: debated coverage
5.3. Exceptions
5.4. Scope of the Labour Code in discrimination proceedings
6. Seven defi nitions: violation of the equal treatment principle
6.1. The principle of equal treatment: a conceptual change
6.2. Direct discrimination: the key defi nition
6.3. Indirect discrimination: written for the desk?
6.4. Employment specific provisions on direct and indirect discrimination
6.5. Harassment and sexual harassment
6.6. Victimization
6.7. Equal pay for work of equal value
6.8. Reasonable accommodation
7. Exemptions
7.1. Two general exemption clauses
7.2. Specific exemption clause in employment disputes
7.3. Preferential treatment (positive actions)
8. Procedural provisions: burden of proof and class action
8.1. Burden of proof: radical shift of risk
8.2. Class action and representation
9. Enforcement body: the Equal Treatment Authority
9.1. Debates on the institutional framework
9.1.1. New institution or existing body?
9.1.2. Targeting strong competences and effective sanctions
9.2. Equal Treatment Authority: the legal status of the equality body
9.2.1. Jeopardized independence
9.2.2. The role of the former Advisory Board
9.3. Competences of the Equal Treatment Authority
9.3.1. Public administrative sanctions
9.3.2. Further competences
10. Domestic case-law
10.1. Remedy system: the role of courts
10.2. General comments on the case-law of the Equal Treatment Authority
10.3. Judicial review of the decisions of the Equal Treatment Authority
11. Reform of Hungarian anti-discrimination law: subjective appraisal
VI. COLLECTIVE RIGHTS IN THE NEW LABOUR CODE
1. Employees' representation in Hungarian labour law
1.1. Unions and works councils: different but connected
1.2. Shift towards works council representation?
1.3. Statutory rights of trade unions
1.4. Right to (legal) representation
1.5. Information rights and their limitations
1.6. Operational rights
1.7. Working time reduction
1.8. Right to initiate court proceedings
1.9. Right to conclude a collective agreement
1.10. Legal protection of union officials
1.11. The prohibition of discrimination
1.12. Labour law protection against dismissals and new limitations thereto
2. Works councils
2.1. The structure of workers' participation
2.2. The election of the works council
2.3. Operation of the works council
2.4. The works council agreement
2.5. Rights of participation
3. Summary
VII. ALTERNATIVE DISPUTE RESOLUTION: CUI PRODEST?
1. Definitions of labour disputes
1.1. The statutory defi nition of rights disputes
1.2. The definition of interest disputes
2. Typology of labour disputes
2.1. Types of out-of-court rights disputes
a) Conciliation:
b) Mediation:
2.2. Types of interest disputes
a) Conciliation (Article 291 of the 2012 Labour Code)
b) Arbitration (Article 293 of the Labour Code)
2.3. Rights disputes in the public sector
3. Individual out-of-court rights disputes
3.1. Conciliation
3.2. Mediation
4. Collective disputes
4.1. Conciliation
4.2. Arbitration
5. Institution in charge: Labour Conciliation and Arbitration Service
6. Critical assessment of out-of-court mechanisms for solving labour disputes
Foreword
Despite major contextual differences between the various European countries, labour laws share a common feature: their legitimacy and economic efficiency are questioned all over Europe, whatever the level of protection granted to the workers is. Lively debates are going on around the need and opportunity to reform national labour laws or, to use a more actual vocabulary, to modernize labour markets. The European Employment policy, now integrated in the European Semester, also focuses on the area of employment protection legislation and labour law. In this context, the case of Hungary is a unique example of a complete reform of labour law with the express aim of enhancing economic efficiency.
This book examines the recent reform of Hungarian labour law, however, in the clear mirror of European legislative developments. What makes this topic extremely interesting for readers from other countries, is the debate on the role of flexibility in recent labour law literature, equally at a national and an international level. The analysis of the Hungarian Labour Code, passed in 2012, is centred around the issue of creating new jobs, one million new workplaces in ten years in a labour market of only four million workers. Therefore, the political will was to establish the most flexible labour market in the world. Consequently, the national developments described by this book may be conceived as a legal laboratory of flexibility concepts and beliefs, what may provide both sides of the debate with interesting results and arguments.
The authors of this book, Tamás Gyulavári and Gábor Kártyás from Pázmány Péter Catholic University in Budapest, do not intend to give a detailed, exhaustive, comprehensive presentation on the new Labour Code. As an alternative, they bring into focus a few internationally disputed and nationally controversial, respectively leading topics, such as the legal framework of atypical employment, with special focus on temporary agency work, prohibition of discrimination, respectively alternative dispute resolution, workers' representatives.
The first chapter evaluates the objectives and results of the labour law reform and specifies the fundamental amendments and legal innovations of the Labour Code, thus, the reader may get an insight of the preparation of the new law as well as the first experiences of its implementation. The second chapter, somehow also of a general character, concerns the legal framework of legal relationships aimed at work, including the challenging and inventive subject of regulating economically dependent work. The ensuing two chapters discuss many different kinds of atypical employment, with special emphasis on temporary agency work, which is a provocative and compelling story in itself, with so many dogmatic issues and legislative twists. The prohibition of employment discrimination is a hit in international labour law, therefore, the national developments always keep some original solutions and surprises. Finally, collective labour law and dispute resolution are rather different, however, quite stimulating terrains of labour law research and practice.
The publication of this book in English gives an unique opportunity to approach and understand the whole Hungarian labour law. The book and the analysis suggested by the authors shall also be taken into account in the current and essential debates going on around the future of l abour law and its function in our societies.
December 2015
Sylvaine Laulom
Professor of Labour Law
Université Lumiere Lyon 2