Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Item 3.3 of the Procedure for
Establishing Reduced Work Days or Reduced Work
Weeks approved by Government of the Republic of
Lithuania Resolution No. 21 of 9 January 1995 with
the Constitution of the Republic of Lithuania and
Paragraph 4 of Article 46 of the Republic of
Lithuania Law on Labour Protection (wording of 7
October 1993)
Vilnius, 24 May 2001
The Constitutional Court of the Republic of Lithuania,
composed of the Judges of the Constitutional Court Egidijus
Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas
Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas
Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representative of the party concerned-the Government
of the Republic of Lithuania-Algirdas Bartkevičius, Head of the
Labour Relations and Remuneration Division of the Ministry of
Social Security and Labour,
pursuant to Paragraph 1 of Article 102 of the Constitution
of the Republic of Lithuania and Paragraph 1 of Article 1 of
the Republic of Lithuania Law on the Constitutional Court, on
17 May 2001 in its public hearing conducted the investigation
of Case No. 36/99 subsequent to the petition submitted to the
Constitutional Court by the petitioner-the Higher
Administrative Court-requesting investigation into the
compliance of Item 3.3 of the Procedure for Establishing
Reduced Work Days or Reduced Work Weeks approved by Government
of the Republic of Lithuania Resolution No. 21 of 9 January
1995 with Item 2 of Article 94 the Constitution of the Republic
of Lithuania and Paragraph 4 of Article 46 of the Republic of
Lithuania Law on Labour Protection.
The Constitutional Court
has established:
I
The petitioner-the Higher Administrative Court-was
investigating an administrative case. The said court suspended
the investigation of the case and appealed to the
Constitutional Court requesting investigation into the
compliance of Item 3.3 of the Procedure for Establishing
Reduced Work Days or Reduced Work Weeks (Official Gazette
Valstybės žinios, 1995, No. 5-92; hereinafter also referred to
as the Procedure) approved by Government Resolution No. 21 of 9
January 1995 with Item 2 of Article 94 of the Constitution and
Paragraph 4 of Article 46 of the Law on Labour Protection
(hereinafter also referred to as the Law).
II
The request of the petitioner is based on the following
arguments.
Paragraph 4 of Article 46 of the Law provides that the
procedure for establishing reduced work days or reduced work
weeks shall be established by the Government of the Republic of
Lithuania.
Item 3.3 of the Procedure provides that upon agreement of
reduced work time, one may provide for reduction of a work day
(shift) by a certain number of hours, by reducing at the same
time the number of work days in the week.
In the opinion of the petitioner, by Paragraph 4 of
Article 46 of the Law the Government was commissioned to
approve the procedure for establishing reduced work days or
reduced work weeks. However, in Item 3.3 of the Procedure the
Government also established that upon agreement of reduced work
time, one may provide for reduction of a work day (shift) by a
certain number of hours, by reducing at the same time the
number of work days in the week. Under Item 2 of Article 94 of
the Constitution, the Government shall implement laws.
Therefore, in the opinion of the petitioner, there are grounds
to believe that Item 3.3 of the Procedure for Establishing
Reduced Work Days or Reduced Work Weeks approved by Government
Resolution No. 21 of 9 January 1995 conflicts with Item 2 of
Article 94 of the Constitution and Paragraph 4 of Article 46 of
the Law on Labour Protection.
III
In the course of the preparation of the case for the
Constitutional Court hearing, a written explanation was
received from the representatives of the party concerned-the
Government-A. Bartkevičius, Head of the Labour Relations and
Remuneration Division of the Ministry of Social Security and
Labour, and J. Zinkevičius, Chief Legal Consultant of the same
division.
In the explanation of the representatives of the party
concerned it is maintained that the Law does not establish the
duration of a work day save the 6-day work week in the event of
which the work day may not exceed 7 hours if the weekly norm is
40 hours (Paragraph 4 of Article 42 of the Law). Paragraph 1 of
Article 40 of the Law provides that the normal work hours for
employees in enterprises may not exceed 40 hours per week,
while Paragraph 2 thereof provides that the length of a work
day (shift) shall be established according to the number of
work days (shifts) per week.
The representatives of the party concerned are of the
opinion that Article 46 of the Law, in the event of reduced
work time, does not prohibit to establish reduced work days or
reduced work weeks individually nor does it prohibit to
establish both reduced work days or reduced work week at the
same time. Therefore, Item 3.3 of the Procedure establishing
that upon agreement of reduced work time, one may provide for
reduction of a work day (shift) by a certain number of hours,
by reducing at the same time the number of work days in the
week, is in compliance with Item 2 of Article 94 of the
Constitution and Paragraph 4 of Article 46 of the Law.
IV
In the course of the preparation of the case for court
proceedings, written explanations were received from A.
Melianas, Chairman of the Seimas Social Affairs and Labour
Committee, G. Švedas, Vice-minister of Justice, and M. Pluktas,
State Chief Labour Inspector of the Republic of Lithuania.
1. In his written explanation A. Melianas pointed out that
Article 46 of the now in force Republic of Lithuania Law on the
Protection and Health of Employees provides that upon agreement
of the employee with the employer, reduced work days or reduced
work weeks may be established. This legal provision has
established two options of establishment of reduced work time:
a reduced work day or a reduced work week. By the Government
resolution an additional option of establishment of reduced
work time was established: a reduced work day, by reducing at
the same time the number of work days in the week. A. Melianas
also pays attention to the fact that the Law does not regulate
the minimal duration of work time, while the Government is not
commissioned to establish such a restriction. Meanwhile, it is
established in the Procedure approved by the Government that a
reduced work day may not be shorter than half of the work day,
while a reduced work week-than three work days per week.
2. In his written explanation G. Švedas points out that
the provision of Article 46 of the Law that upon agreement of
the employee with the employer, a reduced work day or reduced
work week may be established permits to draw a conclusion that
the provisions concerning of establishment of reduced work time
are dispositive. Item 3 of the Procedure establishes the right
of the employee and the employer to choose one of the three
ways of establishment of work time. G. Švedas is of the opinion
that the Law does not prohibit the Government to establish that
both the employee and the employer have the right to agree on
reduction of work hours in the work day by reducing at the same
time the number of work days in the week, moreover that the
wording "reduced work days or reduced work weeks" of the Law
encompasses both of these time periods at the same time. Thus,
Item 3.3 of the Procedure is in compliance with the Law and the
Constitution.
3. It is pointed out in the written explanation by M.
Pluktas that under the Law the Government is obligated to
establish the procedure for establishing reduced work days or
reduced work weeks. Having determined that it is permitted not
only to reduce work days or reduce work weeks individually but
also to reduce both work days and work weeks at the same time,
in the opinion of M. Pluktas, the Government accomplished the
requirements of the Law not precisely.
V
In the course of the preparation of the case for court
proceedings, a written explanation was received from the
specialist-Prof. Dr. I. Nekrošius, Head of the Department of
Labour Law of the Faculty of Law, Vilnius University.
It is noted in the explanation that, under Article 46 of
the Law, upon agreement of the employee with the employer, a
reduced work day or reduced work week may be established. No
one may restrict the freedom of this agreement.
In the opinion of the specialist, the Government is
permitted to establish certain procedures of implementation of
the norm of the Law without changing the substantive content of
the said norm. According to him, in Item 3.3 of the Procedure
the Government established what it had been commissioned by the
Law.
The specialist paid attention to the fact that even though
the petitioner appealed as for Item 3.3 of the Procedure,
however, doubts arise not as to the compliance of Item 3.3 but
that of Item 5 of the Procedure with the Constitution and the
Law. Item 5 of the Procedure provides that a reduced work day
(shift) may not be shorter than half of the work day (shift),
while a reduced work week-than three work days a week. The
specialist maintains that the Government, establishing Item 5
of the Procedure, virtually supplemented Article 46 of the Law
on Labour Protection which does not provide for any minimal
standards of reduced work time.
VI
1. At the Constitutional Court hearing, the representative
of the party concerned-the Government-A. Bartkevičius virtually
reiterated the arguments set forth in his written explanation.
2. At the Constitutional Court hearing, the specialist
Prof. Dr. I. Nekrošius, supplementing the arguments set forth
in his written explanation, emphasised that the opportunity
established in Article 46 of the Law for an employee to agree
with the employer for reduced work time presupposes, first, the
opportunity itself to agree, and, second, to agree on how much
the employee will work and for how long he will be employed. In
the opinion of the specialist, under the Law it is possible to
agree on varied establishment of reduced work time, therefore
Item 3.3 of the Procedure does not violate the provisions of
the Law: it merely particularises them. However, in the opinion
of the petitioner, Item 5 of the Procedure, establishing the
minimal duration of reduced work time, the conformity of which
with the Law and the Constitution has not been challenged by
the petitioner, conflicts with Article 46 of the Law and Item 2
of Article 94 of the Constitution.
The Constitutional Court
holds that:
I
On the compliance of Item 3.3 of the Procedure for
Establishing Reduced Work Days or Reduced Work Weeks approved
by Government Resolution No. 21 of 9 January 1995 with
Paragraph 4 of Article 46 of the Law on Labour Protection
(wording of 7 October 1993).
1. Item 3.3 of the Procedure provides that upon agreement
of reduced work time, one may provide for reduction of a work
day (shift) by a certain number of hours, by reducing at the
same time the number of work days in the week.
The petitioner doubts whether Item 3.3 of the Procedure is
in compliance with Paragraph 4 of Article 46 of the Law.
On 7 October 1993, the Law on Labour Protection was
adopted Paragraph 4 of Article 46 whereof provided: "The
procedure for establishing reduced work days or reduced work
weeks shall be established by the Government of the Republic of
Lithuania. Other reduced work hour regimes which are more
favourable to the employee may be established in collective
contracts, collective agreements, and employment contracts."
On 17 October 2000, the Republic of Lithuania Law on
Amending the Law on Labour Protection was adopted (Official
Gazette Valstybės žinios, 2000, No. 95-2968) whereby the Law on
Labour Protection was renamed as the Law on the Protection and
Health of Employees and a new wording of the law was presented.
Subsequent to the petition of the petitioner, the
Constitutional Court will consider the compliance of Item 3.3
of the Procedure with Paragraph 4 of Article 46 of the Law on
Labour Protection (wording of 7 October 1993).
2. Deciding whether disputed Item 3.3 of the Procedure is
in compliance with Paragraph 4 of Article 46 of the Law, it is
important to elucidate how the provision "reduced work days or
reduced work weeks" established in Paragraph 4 of Article 46 of
the Law is to be interpreted. This wording might produce an
impression that the Government was commissioned by the Law to
establish either the procedure of reduced work days or that of
reduced work days. However, this provision is to be construed
not only literally (in a linguistic manner) but also by taking
into account of other provisions of Article 46 of the Law.
Paragraph 1 of Article 46 of the Law provides that upon
agreement of the employee with the employer, a reduced work day
or reduced work week may be established. It is provided in
Paragraph 4 of Article 46 of the Law that other reduced work
hour regimes which are more favourable to the employee may be
established in collective contracts, collective agreements, and
employment contracts. While one takes into consideration the
right of the employee and the employer to agree on a reduced
work day or reduced work week which is established in Paragraph
1 of Article 46 of the Law, as well as the principle of
preference towards the employee established in Paragraph 4 of
Article 46 of the Law, there are grounds to assert that the
Government, which, under the Law, is empowered to establish the
procedure of reduced work days or the procedure of reduced work
weeks, has also the right to establish that upon agreement of
reduced work time, one may provide for reduction of a work day
(shift) by a certain number of hours, by reducing at the same
time the number of work days in the week. Therefore, the
commissioning by the Law that the Government should establish
the procedure of reduced work days or reduced work weeks may
not be construed as providing for an alternative to establish
either only a reduced work day or only a reduced work week.
3. It needs to be noted that the establishment of flexible
regime of work time is in line with the provisions of the
Constitution that every person may freely choose an occupation
or business, and shall have the right to adequate, safe and
healthy working conditions, adequate compensation for work
(Paragraph 1 of Article 48) and that the state shall support
economic efforts and initiative which are useful to the
community (Paragraph 2 of Article 46).
4. On the grounds of the arguments set forth, one is to
conclude that Item 3.3 of the Procedure for Establishing
Reduced Work Days or Reduced Work Weeks approved by Government
Resolution No. 21 of 9 January 1995 is in compliance with
Paragraph 4 of Article 46 of the Law on Labour Protection
(wording of 7 October 1993).
II
On the compliance of Item 3.3 of the Procedure for
Establishing Reduced Work Days or Reduced Work Weeks approved
by Government Resolution No. 21 of 9 January 1995 with Item 2
of Article 94 of the Constitution.
1. The petitioner doubts whether Item 3.3 of the Procedure
is in compliance with Item 2 of Article 94 of the Constitution.
2. Item 2 of Article 94 of the Constitution provides that
the Government shall implement laws and resolutions of the
Seimas concerning the implementation of laws, as well as the
decrees of the President of the Republic. It has already been
held in this Ruling that Item 3.3 of the Procedure is in
compliance with Paragraph 4 of Article 46 of the Law. Having
held this, one is to draw a conclusion that Item 3.3 of the
Procedure for Establishing Reduced Work Days or Reduced Work
Weeks approved by Government Resolution No. 21 of 9 January
1995 is in compliance with Item 2 of Article 94 of the
Constitution.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 53, 54, 55 and 56 of the
Republic of Lithuania Law on the Constitutional Court, the
Constitutional Court of the Republic of Lithuania has passed
the following
ruling:
To recognise that Item 3.3 of the Procedure for
Establishing Reduced Work Days or Reduced Work Weeks approved
by Government of the Republic of Lithuania Resolution No. 21 of
9 January 1995 is in compliance with the Constitution of the
Republic of Lithuania and Paragraph 4 of Article 46 of the
Republic of Lithuania Law on Labour Protection (wording of 7
October 1993).
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.